M'Laughlin v. Smith

2 Whart. 122

Opinion

Per Curiam.

This is a matter perhaps not without interest, as a point of practice, but certainly without difficulty. A mechanic or a material-man, is bound to issue his scire facias in a given time, op lose his lien; and where the building has been judicially sold before he has prosecuted it to judgment, what is he to do ? He is not to lose the costs; and yet he cannot proceed to judgment of revival, as the lien has been discharged by the sale. Must he proceed to a judgment for costs? That would induce a useless and senseless increase of the burthen on the fund, and retard the distribution of it, while it would benefit no one. The costs of the scire facias were therefore properly allowed.

Decree affirmed.