
    Cochran vs. Brown and Crews.
    A nou-suit, though set aside at the same term at which it is taken, operated as a discharge of the witnesses in attendance.
    On the 5th day of June, 1837, a subpoena issued from the office of the clerk of the circuit court of Hardeman county to the sheriff thereof, commanding him t'o summon Henry W. Brown and Joseph Crews to appear forthwith before the judge of the circuit court, then sitting in B’olivar, to testify in favor of Elizabeth Cochran, in a cause therein depending wherein the said Elizabeth was plaintiff and William Hester was defendant, under the penalty of one hundred and twen¿ ty-iive dollars in case of failure so to appear. This writ Was executed on the same day and returned. At the samé term, on the 12th June, the cause was called for trial, and the plaintiff took a non-suit, and the same was accordingly entered. On a subsequent day of the term, V. D. Barry, presiding judge, upon the affidavit of plaintiff, set aside this non-suit, reinstated the cause, and continued it till the October term. At the October term it was again continued, and at the February term, 1838, the cause was called for trial, and Brown and Crews being called, and not appearing, d judgment nisi was entered against them for the sum of one hundred and twenty-five dollars, and scire facias ordered to issue against them, summoning them to appear at the next term and show cause why, &c. &c.
    This writ was served upon Brown and Créws; and at the November term the defendants, by their attorney, Fentress-, pleaded, “that after they were served with the subpmná, and before they were called to testify and give evidence in said suit of Elizabeth Cochran against William Hester, in behalf of said Elizabeth Cochran, as set out in said scire fa-
      
      cias, the said plaintiff took a non-suit in her said suit against said Hester, as set out in said scire facias, and thereby the said suit of E. Cochran against William Hester was ended and determined, and that they were no longer bound to attend as witnesses.”
    To this plea the plaintiff, by her attorney, replied that she ought not to be barred of her action against the defendants by reason of the allegations of the plea because “the non-suit set forth in the plea was, during the same day and term of the court at which it was taken, set aside by order of the court.”
    The defendants demurred to this replication, and the plaintiff joined in demurrer.
    The cause came on for argument at March term, 1839, and being argued, the presiding judge, Barry, sustained the demurrer to the plaintiff’s replication, and gave judgment in favor of the defendants. From this judgment the plaintiff appealed in error to this court.
    
      Bailey, for plaintiff in error.
    
      Fentress, for defendants.
   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  