#### Lodge’s Appeal.

The penalties for taking an appeal for delay, under the Act of May 25, 1874, will not be imposed in a case where the appeal was taken from a decree of the orphans’ court ordering an administrator to file an account, and the appeal was afterwards abandoned because the account was filed before the appeal was reached for argument in the supreme court, and an affidavit was filed by counsel averring that the appeal was taken by his advice.

April 21, 1888.

Rule for penalties under the Act of May 25, 1874, in Appeal No. 212, Jan T., 1888, from O. C. Phila. Co., tere-, view the action of the court ordering Rebecca Lodge, administrator of Fleetwood Lodge, deceased, to file her account. Paxson, Trunicey and Green, JJ., absent.

April 6, 1888, the affidavit for the rule was filed, as follows:

“ Nancy Barlow, the appellee in the above case, being duly sworn according to law, says that she is a creditor of the said estate of Fleetwood Lodge, deceased.

“ That, upon her petition, the court below, on March 27, 1887, awarded a citation directed to the appellant, commanding her to appear and show cause why she should not file an account as administratrix. That, on April 9, 1887, the appellant filed in the court *765below an answer to said citation, stating, in substance, that deponent was not a creditor of said estate, and therefore not entitled to an account. That, upon consideration of the petition and answer, the court below, on June 23, 1887, ordered and decreed that said appellant be required and commanded to file an account, on or before July 9, 1887.

“ That from this decree, the present appeal was entered in the court below, June 28, 1887.

“ That no steps whatever were taken, by the appellant to perfect her appeal by suing out a certiorari in this court and having the record duly returned, until after the first Monday of January, so that a certiorari would be returnable the first Monday of February, and a non-pros, delayed until the case was reached on the argument list, which was not until March 23.

*“*Deponent further says that no paper-book was ever furnished by the appellant, and she does not believe that any paper-book ever was prepared, or that any argument by or on behalf of the appellant was ever intended. On the contrary, deponent believes and avers that the said appeal was taken solely for the purpose of delay, and she therefore prays the court to grant a rule on appellant to appear and show cause why the penalty prescribed by the Act of May 25, 1874, should not be imposed.”

The docket entries in the supreme court show the following facts: The certiorari was issued Jan. 4, 1888, returnable the first Monday of February, 1888. The case was non-prossed March 23, 1888, and the costs of non pros, paid by counsel for appellant, March 27, 1888.

On April 21, 1888, counsel for appellant filed an affidavit averring that the appellant consulted him, as her counsel, as to what her course should be, when the court below ordered her to file an account, and that he advised her that, in his opinion, the court below committed an error, and that she ought to take an appeal to the supreme court, and that she did take such appeal, which was the appeal in question, which was non pressed.

In the printed statement filed the history of the case states that, in the proceedings for citation, the appellant filed an answer denying that Nancy Barlow was a creditor of the estate; that she took her appeal because she thought the court below erred in making the decree when the positive evidence of the appellant stood against the affidavit of the claimant, who in no way or manner set forth or referred to her claim, or the nature of it, in her petition, and produced no testimony to sustain it. The appellant was then endeavoring to prepare her account, which was a long and difficult one; but she desired to file it and did succeed in filing it long before the case was reached for argument on the supreme court list. Having filed her account about March 1, 1888, she thought it would be folly to argue the question before the supreme court, and she intended, by her counsel, by leave of court, to withdraw the appeal when the case was *766called for argument, and tell the court the reason for the withdrawal; Counsel waited until twenty minutes of three o’clock and left the court room because an earlier case on the list had just been called, and was in process of argument. The earlier case was concluded at four minutes of three, and this case was then called and the appellant was non pressed. Since that, and long before this rule was taken, the appellant paid all the costs of this court on the non pros.

April 23, 1888.

*Fred’k*Gaston, for rule; *E. Hunn, Jr.,*contra.

Per Curiam,

Rule discharged.