We have heretofore decided that a plaintiff

may so amend his petition as to change the character or right in which he sues, upon payment of costs, where the change does not operate to deprive the defendant of any defence,' or prejudice any right which may have accrued to him at the time of the amendment. (Henderson v. Kissam, 8 Tex. R. 46.)

It is not pretended that any defence or right had accrued to the defendant in this case, after the filing of the petition, which would be prejudiced by the amendment. The Court, therefore, should not have dismissed the case, because of the amendment ; but should only have adjudged the costs against the plaintiff.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.