Wheeler, J. The statute which authorizes a discontinuance as to a defendant not served with process coutains no exception in favor of partners, or others whose liability, by their contract, is joint only. It is so general in its terms as apparently to embrace all cases, aud the creation of a single exception, in favor of indorsers and sureties, favors the conclusion that it was intended to embrace all not included iu the exception. (Hart. Dig., art. 704 ; Williams v. McNiel, 5 Tex.
R., 381.) If, however, the authority to discontinue, on the sole ground of the want of service, were doubted, there can be, we think, no question that the further fact that the defendant not. served resided beyond the limits of the State, gave that right. (Id.,' arts. 705, 670.) Judgment affirmed.