Cochran v. Brown ( 1839 )

Green, J.

delivered the opinion of the court.

The question made by the pleadings in this case is, whether a non-suit entered in a cause discharges witnesses who may have been summoned, so that if it be set aside they are not bound to attend unless re-summoned. It is contended by the plaintiff in error that a non-suit does not discharge a witness within the meaning of the act of 1794, ch. 1, sec. 29. That act says, a witness, when once summoned, shall attend from term to term until discharged by the court or the party at whose instance he was summoned. The act cannot mean that there must be a formal order of the court discharging the witnesses. In practice that never is made, and it would be thought absurd by every one for the witnesses to apply for a discharge after the cause had been determined and ended. The true construction of the act is, that wherever a final judgment is given which determines the cause the witnesses are thereby discharged by the court. If this Ibe not so, and the setting aside a non-suit or granting a new trial would continue the obligation on the part of the witnesses to attend, the greatest loss and inconvenience both to parties and witnesses would be the result. Sometimes a motion for a new trial is continued from term to term before it is decided. Must the witnesses attend all this time, and thus add greatly to the costs of the suit, when possibly the new trial may be refused and all the costs to the party and trouble to the witnesses will have been produced for no benefit? Would it not be much better that the parties should be put to the trouble of summoning their witnesses again should a new trial be granted?

If the principle contended for be correct, it is not perceived why it may not apply to a case which may have been decided below and taken to this court, reversed and remanded for another trial. But to require witnesses to attend the circuit court until the cause should be thus remanded would be too preposterous for any person to contend for. The safe construction of the act, therefore, is that which we have indicated. A non-suit is a final disposition of a cause as completely as a judgment on a verdict. After the non-suit was taken the defendants had a right to consider themselves discharged by the court. Let the judgment be affirmed