
    Henderson v. Kissam.
    A surviving partner or joint obligor, and the representatives of the deceased partner or joint obligor, may as a general rule be joined as defendants in the same suit. Should the survivor he a suiety lie could thus at once he subrogated to the rights of the plaintiff, the debt standing for his benefit, as established against the succession. But, queref As to exceptions to this rule.
    Under our system of procedure a petition may be so changed by amendment as to make the case a perfectly new one, on payment ot the costs which would llave been adjudged against ' the plaintiff liad lie dismissed his original petition and filed anew one, provided t hat m the meantime the statute of limitations has not run. or that some oilier defense valid in law had not accrued totiie. defendant, and which could have been setuphad the original action been discontinued and a new one commenced; and provided that the defendant had not been improperly brought into court in the first instance, as. for example, where he was . sued in a county other than that in which lie liad his domicile, under color of being joined with a fictitious co-defendant purporting to reside in such county. (Note 12 )
    
    The plaintiff in 1813 brought suit in the comity of Harris against A, who resided in San Augustine county, and 0, the representative of it, on a joint promise of A and B, which fell due July 15th, 1838, (the succession of B being alleged to be open in Harris county.) A pleaded that he had been improperly sued out of the county of his domicile, and both defendants pleaded, besides other pleas, the statute of limitations. In 1847 the plaintiff amended by striking out so much of his original petition as charged 0 in the capacity of representative of B, and substituting allegations charging him as the universal partner of 13; and plaintiff afterwards alleged that no administration had been taken out on the succession of I>. The plaintiff liad a verdict and judgment: Meld, That the judgment be reversed and tho cause dismissed. (Note 13.)
    Where it appears upon the trial that by means of a fictitious co-defendant (although by mistake) a defendant had been sued out of the county in which he has his domicile, the suit should be dismissed, at least if the real defendant have not voluntarily submitted to the jurisdiction.
    Error from Harris. The petition represented tiiat on the 15th day of July, 1837, John Iv. Allen, now deceased, and J. Pinckney Henderson, of San Augustine county, executed their joint and several promissory note, promising to pay, twelve months after the date of the said note, to A. C.'Allen or order [1 the sum therein expressed; and tiiat the said A. C. Allen had indorsed and delivered the said note to the petitioner; ancl that afterwards the said John K. Allen died, and letters of administration on Iris estate were granted the said A. C. Allen by tlie Probate Court of Harris county; and tiiat the said Henderson and J. K. Alien, in his lifetime, had not paid the said note, nor had tlie said A. C. Allen, administrator as aforesaid, ever paid the said note; and tlie petitioner prayed tiiat tlie said J. Pinckney Henderson and the said A. C. Allen, as administrator of John K. Allen, deceased, might he cited and adjudged to pay the sum due on said note and interest., &e.
    The petition was filed in the office of tlie district clerk of Harris county March 31sl, 1S43. Tlie defendant Henderson on the 30th October, 1S44, pleaded in abatement that he was not sued in tlie county of his domicile, demurred generally, and pleaded a general denial, payment, and the statute of limitations.
    There, were no further proceedings in the cause until tlie Spring Term, 1847, when the defendant Allen filed his general exception and also a general denial, and further pleaded payment and limitation. At the Fall Term, 1847, the defendant Henderson filed an amended answer, which it is not necessary to notice more specifically. The plaintiff also at the same term, by way of amendment, struck out of the original petition so much as charged the defendant A. 0. Allen as the administrator of the estate of John K. Allen ; and in lieu thereof charged that tlie said A. C. Allen was, at the making and delivery of said note, tlie universal partner of tho said John K. Allen, and so continued nul.il tlie decease of the latter in 1838; and that after his death the said A. C. Allen, as such universal partner, took chargeand control over all the property of the deceased.
    The defendant Allen at this term amended or rather replead tlie substance of his original answer. At tlie Spring Term, 1849, the plaintiff in a second amended petition reiterated and enlarged upon the allegations of Ills original and amended petition; and stated further that no administration had been taken out on tlie succession of J. K. Allen, deceased, but that the effects were possessed and controlled hjr A. C. Allen, in virtue of his right ns universal partner of tlie deceased, and that tlie said J. P. Henderson, after the maturity of the note, and prior to tlie commencement of the suit, liad been absent, from the Republic, now State of Texas for three years, and tlie defendant Allen for the space of two years.
    At tlie Pall Term, 1S49, the defendant Alien moved that the writ he quashed, on the ground that lie was charged as administrator of J. K. Allen, and that he could not he joined with tlie other defendant who was sued in his individual capacity; and further moved the court to strike out all the allegations of the amended petitions, or so much thereof as related to himself, (except as to such of tlie plaintiff’s amendments as struck out portions of tlie original petition,) on the ground tiiat lie was summoned to answer as administrator of J. K. Allen, deceased, and that there was a variance between the summons and pleadings; and prayed to be dismissed with his costs.
    Tlie demurrers of tlie defendants, and defendant Henderson’s plea in abate-men t, and Allen's motion to dismiss, were overruled; and the plaintiff recovered judgment against the defendant for the amount of the note and interest.
    It was assigned for error—
    1st. That the defendant Henderson was improperly joined with A. C. Allen as administrator of the deceased; and that it having been shown by the record that lie was a resident of San Augustine county, and consequently not liable to be sued alone in Harris county, the suit ought to have been dismissed on the demurrer or plea in abatement of the defendant.
    2d. That there was error in permitting the plaintiff to amend his original petition, which charged A. C. Allen as administrator of J. K. Allen, deceased, so as to charge him in his individual capacity and right.
    3d. The court erred in overruling the demurrers of the defendants to the petition and amended petitions.
    4th. The court erred in overruling defendant Allen’s motion to dismiss. 5th. The court erred in sustaining exceptions to defendant Henderson’s plea in abatement.
    Gtli. That the amended petition constituted a new cause of action which there was no process to support, and as such was barred as to both defendants by the statute of limitations.
    
      JS. A. Palmer and G. B. Sabin, for plaintiffs in error.
    I. The first assignment is well taken. (1 Sm. & Marsh. K., 391; 5 Ala. B., 421; 1 Ch. PI.. 44. 50, and cases cited; 1 Wend. B., 148-52; 2 Yern., 97; 3 Wils. B., 72, 118; 6 Mass. B., 18; 4 Hen. & Mnnf. B„ 253; 2 Id., 124; 2 Marsh. B., 140; 1 Bibb. B., 547; 3 Id., 560; 4 Mon. B., 305; 2 Tex. B., 450.)
    H. The second assignment is also well taken. (1 Hay. B., 19, (1792;) 1 Ired. Dig., 219; 4 Hawks., 102, (1825;) 1 Ch. PL, 251; 4 Burr. E., 2417; Cowp. B., 292, opinion of Buller, J.; 4 Ark. B., 509-546; 5 Pike B„ 140; 5 Ala. B., 076; 1 Stew. B., 02, 130; Pliill. Dig., p. 485, sec. 130; Id., p. 487, see. 156; Id., p. 488, sec. 109; Id., pp. 489, 490; 3 Stev. B., 67, 322.)
    HI. The court erred in overruling the demurrers of the defendants to the petition and amended petitions. (Hart. Dig., arts. 1012, 1013; 1 Ch. PL, 44 a, 205; 3 Tex. B., 228.)
    IV. The court erred in sustaining exceptions to defendant Henderson’s plea in abatement. (3 Tex. B., 228.)
    Y. The ninth assignment is well taken. (1 B. & P., 383 and note ; 1 Tex. B., 732 ; Hart. Dig., arts. 2377, 2395; 2 Tex. E., 296; Id., 541; 3 Id., 93; Id., 192.)
    
      J. B. Jones, for defendant in’error.
    I. The first assignment of errors contains nothing calculated to disturb the judgment of the court below. The suit was well brought against the defendants jointly, and in the county of Harris, where one at least of the defendants resided. And even if the plea in abatement filed by I-Ienderson had been verified by affidavit as required by law it constituted no defense to this action.
    II. The position assumed by the plaintiffs in error in their second assignment of errors is not sound. The facts alleged in the original petition go tO' charge defendant Allen in his own right as well as in the cliaracter of administrator, and though there is no specific prayer for judgment against him there is a general prayer for judgment against the defendants, and a prayer for general relief, under which it would have been competent for the court to render judgment against all the parties liable on the contract.
    The doctrine of amendment under the statute then in form was liberal, and allowed all amendments calculated to bring the merits before the court, as the various enactments which are familiar to the court will show.
    Nothing is more common than an amendment as to parties; and if at any time it shall appear to the court that other parties or rights are involved, they will require proper parties to be made before rendering judgment. Hender■son was a necessary party to the suit and so was Allen.
    As to parties, see Story’s Eq. PL, sec. 72 to 78, &c.
    The common-law doctrine as to parties to a suit lias no application to our practice
    The whole doctrine bad its origin in the strict technical practice of the common-law courts, proceeding upon strict technical rules; and the rights of parties were often made to depend less upon the true merits of the controversy than upon the mere forms of proceeding. It is a sufficient answer to these technical objections that wo have now adopted the common-law practice, and that it no longer exists even in England.
    On the subject of amendment, sec Story’s Eq. PL, sec. 882, &e.
    Ilf. The demurrers of the defendants were properly overruled. The demurrers are general and would not reach any formal
    matter; and if any cause of action appears in the petition and amended petitions the demurrers should have been overruled.
    IV. The exceptions to the plea in abatement were well sustained by the court. The plea is not verified by oath in the manner required bylaw, and if it was, contains no defense. Henderson was a proper party to the suit, no ■matter where he resided.
    Y. The parties appeared and answered.
    No process was necessary, and was waived not only by the answers, but expressly so by Henderson. The claim was not within the ‘‘act of limitation,” and had it been, the averments of the petition saved if. The absence • of the parlies defendant prevented it from running. The fact of their absence for the lime alleged in the petition was proved.
   Hemphill, Oh. J.

In relation to the first assignment it will suffice to say that as a general rule under our system of procedure, in which the principles and practice of both the common law and equity jurisdictions are blended, there would be no error in joining the survivor with the representative of a deceased joint obligor or partner. The circumstances might be such as very frequently to render such joinder quite expedient to secure either the interests of the plaintiff or of one of the defendants. If the surviving obligor, partner, •<fcc., were insolvent, the plaintiff, for his own security, should be allowed to proscenio his suit immediately against the estate of the deceased; and if the deceased were the principal obligor, and the survivor only surety, then, according to the. principles of the Louisiana or Spanish law, under which this note was made, the surety, having the legal right to have the effects of the principal •discussed before process could be enforced against him for tbe collection of the debt, might, as a general rule, by proper pleading, cause suit to be prosecuted jointly or simultaneously against the estate of the deceased principal obligor, and even under the rides of equity as known to our present system it would be convenient and admissible that judgment against the estate of the deceased principal should be simultaneous or joint with that against the surviving surety. Should the judgment be collected from the surety lie might thus at once be. subrogated to the right of the plaintiff, and the debt would •stand for his benefit as established against the succession. What exceptions might be made to the. general rule for the purpose of effecting the substantial ends of justice, and to prevent the survivor or the estate of the deceased, in case of insolvency of either, from being-lugged into a controversy where the effect could only lie. to increase the costs and charges of the party by whom • the burthen must be ultimately sustained, or to prevent the joinder from being used merely as a cloak by which the survivor, without benefit to the plaintiff or (lie estate of deceased, may be forced into litigation in a distant county, need not be hero discussed. No opinion is necessary on such points, nor will it be given until argument or full deliberation can be had.

Ou'the first, ground of error, then, and as it is presented, we sec no sufficient .reason for the reversal of the judgment.

The main question in the cause arises upon the consideration of the second and some succeeding grounds, viz: that there was error in permitting the amendment of plaintiff to change the action from a charge against A. C. Allen, one of the defendants, as administrator of J. K. Allen, deceased, to a charge against him in his individual right; and the subsequent refusal to dismiss the suit.

That great liberality should be exercised in admitting amendments for the promotion of the ends of justice, ■when the rights of other parties would not be sacrificed, may be admitted to he the cherished policy of the law; and I have no doubt that under our system of procedure a petition might be so changed by amendment as to make the case a perfectly new one, on payment of the costs which would have been adjudged against the plaintiff had he dismissed his original petition and filed a new one, (1 Dan. Ch. Pr. 4GG.) provided that in the'meantime the statute of limitations had not run, or that some other defense, valid in law, had not accrued to the defendant or defendants, and which could have been set up had the original action been discontinued and a new one commenced. On the subject of amending petitions, see Dan. Ch. Prac., chap. 6, sec. 8, vol. 1st. p. 434 to 488 ; Story Eq. Pl., § 882 to § 905. In section 904 of his Equity Pleadings this view of the subject is expressed by Judge Story in the following terms : “In most of these cases the indulgence given by the court is allowed to the mistakes of the parties, and with a' view to save, expense, but when an injury .may, arise, to others the indulgence has been more rarely granted. And so far as the”tendency of a suit can affect either of the partii's to it,, or strangers, the, matter brought into the bill by amendment will not have relation'to the time of filing the original bill, but the suit will so far be considered as pending only from Lite time of the amendment.”

Now, what are the circumstances of this case ? The surviving co-maker and the representative of the other maker, who had died, are joined in one suit. The representative is expressly charged as administrator of the deceased, and the prayer of the petition is that he 'may be. cited to appear and answer as such administrator. More than four years subsequently the plaintiff strikes out of his petition all the charges against him as such administrator, and attempts to charge, him and have judgment against him in his individual capacity, and five years having elapsed from the filing of the original petition the plaintiff further amends by denying that the defendant, whom lie had originally charged as the administrator of the deceased, ever was, in fact, such administrator, or that letters of administration upon the estate of the deceased had ever beeu granted to any person whomsoever. There is no pretense here of any discovery of a fact concealed by the defendant Allen. The records of the Probate Court of the couuty in wilieh the suit was instituted are public, and whether there was administration or not, would be apparent on inspection, and the plaintiff cannot avail himself of any exception by which, under certain circumstances, on discovery of a fact from the defendant, an amendment staling such result might be permitted as to that defendant to operate from the filing of the original petition. (§904, Story, Eq. 1*1.) That this amendment, by which a charge against the defendant as administrator is stricken out and one against himself 'individually is substituted, changes the entire action and is equivalent to a new suit, cannot, it seems to me, lie doubted. (4 Burr. R., 2-117 ; Cowp., 292.) As was well said in the argument, the object of making Allen, as the representative of the deceased, a parti’, was that the property of (he estate, and not. his own. might be subjected to flic payment of the debt. The judgment sought was to be da bonis testutoris, and not da bonis propriis. Had the defendant been removed from the, office of administrator and another appointed the suit would have proceeded against the administrator da bonis non, and not against, the defendant. And had he died (lie administrator of J. K., and not of A.'C. Allen, would have been the party to the suit. The fact (hat the person now charged individually is the identical person who had hem charged •as the representative of another cannot affect the rights of the defendants or operate in favor of tlie plaintiff. The two capacities are quite distinct. Had the defendant, in his capacity as administrator, been voluntarily ejected by the plaintiff from the suit and another substituted for him, and charged in his individual right, it is very clear that an amendment so radical would have, in effect, resulted in the introduction of a new action. And such is the effect of a change, whether one party be. thrust forth and another introduced, and charged in a new and distinct right, or whether the party, as representing the right of another, he dismissed and be subsequently reinstated bnt he required to answer not for another bnt for himself. Such changes, as we have before said, may, in some cases, on the payment of costs, he admissible, but they cannot be permitted to operate to the injury of other parties.

How, the only ground on which the defendant Henderson could have been sued in Harris county was the pretense that the succession of the deceased had been opened in that county; and tiffs was the only ground upon which suit could have been there maintained; forbad it appeared on the trial that no such administration had ever been granted the allegation should have been treated, although a mistake in fact, as in legal effect a fraud to induce the court lo take jurisdiction, and the suit should have been dismissed.

The law invests the defendant with tlio right of being sued in the county of his own domicile. The privilege granted was intended as a substantial benefit not to be disregarded unless on exceptions indicated by law, and which must have facts for their foundation. But the protection supposed to he guaranteed to a defendant would he a mere delusion if it could he evaded by the creation of a fictitious being, giving to it a local habitation, and drawing the real party defendant to its pretended domicile, and then relieving him by substituting some years afterwards for the imaginary phaufom a real fiesh-aud-blood defendant, against whom, had the suit been so commenced, it might have been sustained. Tiffs would certainly he a great abuse of (he exception to the general rule which authorizes suit at the''residence of either of two or more defendants, or in the county where the succession is opened, and it is such a perversion of (lie spirit aucl intent of tlu1, law as cannot bo tolerated. The defendant Henderson aucl this figment of the brain arc sued jointly in a county and at a court which by force of the: fiction alone had jurisdiction'. The plaintiff' subsequently, in effect, discon(inuos as to the fictitious creation or pretended administrator, lie not only discontinue's as to him, but declares in effect that he never had any right to bring suit against him, nor against any one else as the representative of the deceased; that no administration had ever been granted upon the estate. The pretext then for the commencement of suit in Harris county totally fails. It is discontinued as to the only party whose pretended residence afforded a colorable pretext for the restitution of suit in such locality; and it is shown that no such party liad ever, in fact, a legal or actual existence, and that there was not nor ever had been any such foundation as had been pretended for the support of the suit. Under such circumstances, the action being joint, liad there been a formal discontinuance as to the fictitious being, such discont inuauce, must have been fatal to the whole action, and where there is such discontinuance in effect, though not formally entered, its results must be equally fatal to the suit. After such discontinuance the suit cannot he bolstered up by the introduction of another party on the record, against whom, if originally sued, the action might have been maintained, but in whose favor, before the amendment, the statute had operated as a bar.

It is to be regretted that we cannot give the subject a more extended consideration. But such is the pressure of other causes that we can state but little more than conclusions. We must dispense with a minute investigation and aualysis of (lie authorities, as well those which treat of the equitable as those which treat of the common-law principles and practice. The effect of discontinuance and a. nolle prosequi as to one or more of joint defendants was discussed iu the case of Austin and Clapp v. Jordan, and the court went in that case to the verge of liberality, but not further than we are prepared to sanction in similar cases in saving the rights of parties and the ends of justice from being defeated by the effect of a discontinuance or nolle prosequi as to some of the parties defendant. But all rules of practice and jmnciplcs of law must have a reasonable construction and be made to harmonizo with other rules and principles equally binding and sacred. No such laxity as would thwart the aim and object of the law itself, and impair or destroy rights which can justly claim its protection, can be sanctioned. Legal fictions cannot be perverted to any such purpose. The plaintiff had his option to sue separately or jointly. Had the suit been separate the defendant Henderson would have been sued in his own county, the centre of his affairs, and where he could have given the

Note 12. — ‘Where a party sues as administrator, and by amendment claimed the noto ns his individual property, lie was held to have set up a new cause of action, Mibjooting him to payment of costs and any defenses existing at date of amendment. (Whitehead v. Herron» 1ST., 127.) Where plaintiff sued for property, claiming the same by ordinary allegation of ownership, an amendment setting up title as widow was held to present a new cause of action. (Ilopliins v. Wright, 17 T„ 35.) In Pridgen v. McLean, 12 T., 420, it is said by the reporter that where persons sue as partners doing business under a certain name and style it seems that an amendment which strikes out one of the plaintiffs does not set up a new cause of action, but the question is not noticed in the opinion of the court. In Blellhenny v. Loo. 43 T., 203, it is held that the addition of the name of a silent partner in an amended petition filed in the firm name is not a statement of a new cause of action. See also Chapman v. Sneed, 17 T., 428; Thouvenin u. Lea, 20 T., 614.

Note 13. — Pool v. Picket, post, 122.

suit his personal attention. But if the plaintiff'elect to sue jointly, and a fiction be created to draw the real defendant from his own to a remóle county, he must abide by his choice. If he discontinue in time he may have the benefit of a new suit; but let him discontinue when lie will or lot the fiction be brought to light at any stage of the proceedings, if the real defendant have not voluntarily submitted to the jurisdiction, the fact must operate a defeat of the whole suit. The unsubstantial shadow having vanished in the light of truth, and the flimsy foundation upon which the suit rested having been swept away, the superstructure must fall. The practice and rules in the common-law courts in relation to the effect of a discontinuance or nolle prosequi, as to some of the defendants sued on a joint contract, may bo found in Austin and Clapp v. Jordan, aud in 1 Pet. R., 46; 1 Sannd. R., 207; 11 Pet. R., 86; 5 John. R., 160; 1 Bick. R., 500; 3 Esp. N. P. R., 76; 5 Esp., 47; 1 Wils. R., 90; 4 Ark. R., 509.

These cases are referred to without intending t.o sanction expressly all or dissent positively from any of the rules or principles to be found in them. Time is not afforded for a full examination of them. For the reasons above stated we are of opinion that the change of the action on the amendment of the plaintiff was in effect a discontinuance of the suit, and it is ordered, adjudged, and decreed that the judgment be reversed and the petition dismissed.

Beversed and dismissed.  