
    [Philadelphia,
    January 18th, 1837.]
    M'LAUGHLIN against SMITH.
    APPEAL.
    The costa of a scire facias on a mechanics? lien, are to he paid out of the fund raised by the sale of the building upon which the liep. attached, in like manner ps the amount of the lien; although the scire facias had not been prosecuted to a judgment at the time of the sheriff’s sale. .
    Appeal by Wm. M'Laughlin, from a decree of the District Court for the City and County of Philadelphia, distributing the proceeds of a sheriff’s sale of a certain messuage and lot of ground, in the city of Philadelphia, sold by virtue of a writ of venditioni exponas, issued in an action brought by William McLaughlin against John Smith, administrator of John Mooney.
    The only question arising upon this appeal-was, whether the plaintiff in a scire facias upon a mechanics’ lien, which had not been prosecuted to judgment, was entitled to receive the costs of the scire facias out of the fund, in preference to a judgment creditor.
    The District Court decided that he was so entitled, and Mr. McLaughlin contended in this Court, that there was no preference given to the costs of a scire facias by the act pf 18Q6, relating to mechanics’ liens.
    The Court declined hearing Mr, G. lngersojl, contra.
   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.  