
    *MAY TERM, 1801.
    Present — Tilghman, Chief Justice, and Basset and Griffiths, Circuit Judges.
    
    Hurst’s Lessee v. Jones.
    
      Costs of former suit.
    
    A defendant cannot, be compelled to proceed to trial, until payment of the costs of a former action, between the same parties, for the same cause, which had been non-prossed.
    
    A former ejectment, between the same parties, for the same land, had been non-prossedbut the costs of suit remained unpaid.
    The defendant’s counsel objected to the trial of the present ejectment, until the costs of the former were paid.
    
      Rawle, for the plaintiff. E. Tilghman, for the defendant.
    
      
       This was the court established under the act of 13th February 1801 (1 U. S. Stat. 89), under the Adams’ administration. Hon. William Tilghman (afterwards and for many years Chief Justice of Pennsylvania) was commissioned as its president judge, on the 3d March 1801, to hold his office, during good behavior, as provided by the constitution. But on the 8th of .March 1802, on the coming in of the Jefferson administration, the act was repealed (1H. S. Stat. 132), and the judges were deprived of their offices, without the imputation of a fault. It is known, that Chief Justice Tilghman’s opinion was against the validity of the repealing law; for, in a very able protest, published by Judge Basset, in which the breach of the constitution was strepueusjy asserted, he remarks: “ If any difference between me and my associates in office exists, it relates merely to the point of time for expressing our sentiments. I can confidently assert that, on deliberation, they coincide with me in other respects.” It is said, that Judge Tilghman, in after life, never alluded to the circumstance of his having been a judge of that court. Binney’s Eulogium, 16 S. & R. 441. Its decisions are chief reported in Mr. JohnB. Wallace’s reports, originally published in 1801, by Asbury Dickens. The constitutionality of the repealing act was mooted, in the case of Stuart v. Laird, 1 Cr. 299, but the judges avoided any expression of opinion upon the question.
    
   By the Court.

— The objection is reasonable and just. The defendant cannot, under such circumstances, be compelled to proceed to a trial.

The cause continued.  