majority">Hemphill, Ch. J.

This was a suit by Frances Davis against Thomas Forbes, master, and the unknown owners of the steamship Perseverance, to recover damages for the loss of a trunk and its contents, a part of the baggage of the plaintiff on a trip from New Orleans to Indianola.

Forbes alone answered. The owners were not cited. There was a trial and verdict for plaintiff. After verdict, plaintiff dismissed as to defendants not served. A motion for new trial being overruled, defendant appealed and assigns error—

1st. In overruling motion for new trial.

2nd. In dismissing as to defendants not served, after verdict.

3rd. In the several rulings, <fec., favorable to plaintiff.

In argument, the appellant first insists that the verdict was not supported by evidence, and that it was in contempt of the instructions of the Court. He contends that there was no proof of delivery to the master, or of acceptance by him of the goods.

There was proof that two trunks of the plaintiff were placed on board, shortly before the departure of the ship from New Orleans, and that but one of them was afterwards delivered or found. The jury were instructed by the Court, that to charge the defendant, it must be shown to their satisfaction that the trunk was delivered to the defendant Forbes, or the purser of *273the steamer, or some other person authorized to receive it on the part of the steamship.

The attention of the jury was thus directed to the facts which must be in proof on this point, and it cannot be said that their verdict, in this particular, was without or against evidence. If the goods were placed on board of the ship, the inference would be that they were intended to be entrusted to the custody of the master or proper officer on the part of the ship.

The fact that the first schedule made out by the plaintiff, of the property lost, varied materially in amount from the second, was a suspicious circumstance, and it might admit of some question, whether the plaintiff should be allowed to recover for an amount greater than the first estimate placed by her on the property. It could be allowed only on the ground of mistake, and that in fact the articles, or some of them, were worth more than the original estimate.

The verdict did not correspond in amount with either the first or second schedule. But if it be permitted to exceed the first valuation—if the plaintiff be not estopped from the recovery of a greater sum—the verdict cannot be said to be without evidence, as the testimony of the witness is for an amount which exceeds the verdict, and consequently the verdict cannot on this ground be set aside.

The second assignment is as to the error in dismissing as to the owners after verdict.

The point raised by this assignment is one of considerable interest in practice, but as it has not been fully discussed, and as no reference has been made to authorities, I shall dispose of it very briefly. By Art. 704, Hart. Dig., it is declared that where there are several defendants in a suit, and some of them are served with process in due time, and others not so served, the plaintiff may discontinue as to those not served, and proceed against those that are, &c., and no defendant against whom a suit may be discontinued, according to the provisions *274of this Section, shall be thereby exonerated from any liability under which he was, &c., &c.

This Section recognizes the right of the plaintiff to enter a nolle prosequi as to defendants not served, in all suits, no matter whether they be in tort or contract, or whether the obligation be joint and on which all the obligors must at common law be sued jointly and there must be a joint judgment, or joint and several and in which the suit though joint might have been several. All distinctions of this character, and the law arising upon them, are disregarded and swept away by the Statute ; and the only test of the right of the plaintiff to discontinue as to some of the defendants, is whether they have or have not been cited in conformity with law. Now, is it at all material whether the discontinuance be before or after verdict ? No judgment was entered. There was no proceeding on the part of the plaintiff, which bound her to consummate judgment against the owners not served. In the amended petition, Forbes was alone regarded as the defendant. He was responsible on his own account, and not from any act or proceeding on the part of the defendants not served. The rule of the Statute may well by analogy be extended and applied in cases of this character, so as to authorize a discontinuance as well after as before a verdict.

For the general doctrine in relation to discontinuance as to parties, see 5 Tex. 1301 Peters, 46. The judgment is affirmed.

Judgment affirmed.

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