The opinion of the Court was delivered by Pettit, President. The act of the 17th of March 1806, under which the claim was filed, creates a Lien upon the particular building ; and the act of the 28th of March 1808, authorizing the person having a claim filed to proceed at his election either by personal action or by scire facias, provides, that no judgment rendered in any such scire facias shall warrant tire issuing an execution, except against the building upon which the lien existed. The property here has been disposed .of by operation ©f law, without any default on the part of the plaintiff.

Should he obtain a judgment on a verdict, he would be unable to get execution, nor could the court aid him in recovering the costs accruing subsequent to the appeal. As to any possible advantage then to the plaintiff, further proceedings would be altogether nugatory. On the other band, by requiring the plaintiff to go to trial, the mere opportunity is afforded to the defendant of endeavouring to procure such a verdict as will entitle him to the aid of the court in recovering the costs paid on the appeal, and the subsequent costs. But there is no reciprocity even as to the question of costs.

Upon the grounds of public convenience, the time of the court and a jury ought not to be occupied by the trial of an issue whose direct and appropriate object has been legitimately defeated. The issue was not intended to try the mere collateral and minor question now proposed, much less was it framed for the exclusive benefit of only one of the parties. Were the court at liberty to weigh the conflicting equities, it would be manifest that there would be much more of hardship upon a plaintiff in compelling him to prepare for and go through a trial in such a case, than upon a defendant in staying the proceedings.

So far as the plaintiff advanced he was sustained by the proper tribunal, and he is obliged to lose the security to which he had trusted. The defendant’s right to appeal rested upon the payment of costs as a condition. The due course of the law, and not the act of the plaintiff, has rendered the appeal abotlive. When the costs were paid, there was a legal adjudication in regard to them. An appeal as to them was but incidental. It must, share the fate of the principal subject upon which it was dependent. Rule absolute.