W. W. Hill v. Tacitus Clay, 26 Tex. 650

Bell, J. We are of opinion that there is no error in the judgment. It is plain that the plaintiff below intended, in his original petition, to declare upon the. same cause of action which is more particularly and correctly set forth in his subsequent amendment. In the amendment filed October 6th, 1858, the plaintiff showed cause for his failure to set forth his cause of action with accuracy and particularity in his original petition. He declared that he Was not in possession of the instrument of writing showing the contract between Hill and McCreary, at the time his original petition was filed.

He alleged that the instrument of writing was, at the time of filing the original petition, in the hands of Hill and McCreary, and that they withheld it from him, and misrepresented its nature and contents. Under the circumstances, we think that the amended petition filed October 8d, 1855, did not set up such a new cause of action as entitled the defendant to plead the statute of limitations.

Nor do we think the court below erred in proceeding to judgment in the case after it hud abated as to McCreary, The plaintiff below moved to make himself a party as the administrator of McCreary, and this motion was denied because of the objections urged by the defendant, Hill. Although the plaintiff was not, perhaps, a proper person to represent the interests of McCreary in this suit, still the court might have made him a party as administrator of McCreary, and protected the defendant, Hill, by its decree.

After Hill had objected to making the administrator of McCreary a party, he could not be heard to complain that the case went to judgment without any representative of McCreary. We think the court below instructed the jury correctly as to the law. Courts of equity act upon the most liberal and enlarged views in all such cases; and it is said, do not proceed upon the idea that strict justice is done, but that the best justice is measured out that can be under the circumstances. (Story’s Equity Jurisprudence,

section 468.) The judgment of the aourt below is affirmed. Judgment affirmed.