
    Drummond’s Appeal. [Lang v. Drummond.]
    The penalties for taking an appeal for delay, under the Act of May 25, 1874, will not be imposed in a case of an appeal from the refusal of the court below to open a judgment, although the defendant, prior to the appeal, entered a stay of execution — the appellant having filed an affidavit that the appeal was not taken for the purposes of delay.
    March 3, 1888.
    March 3, 1888.
    Rule for penalties under the Act of May 25, 1874, in Appeal, No. 140, Jan. T., 1888, to C. P. No. 3, Phila. Co., to review the action of the court in refusing to open a judgment by Louis Lang against Henry Drummond. Trunkey, Green and Williams, JJ., absent:
    The affidavit for the rule by the appellee averred that the appeal was taken merely for purposes of delay.
    The printed statement of counsel for the rule asserted that, after the judgment in this case was entered on a warrant, defendant gave security for one year’s stay from Sept. 4, 1886. At the time this stay was about to expire, the appellant, after paying over $200 on account of the debt, retained other counsel and took this rule to open the judgment.
    The affidavit of the appellant denied that the appeal was taken for purposes of delay, but asserted that the rule to open the judgment was argued in the court below Nov. 27, 1887, and discharged the same day; that this appeal was perfected forthwith and made returnable to the first Moneay of January, 1888, that, by great exertion, appellant’s paper-book was completed and the case argued Jan. 27, 1888, as soon as reached. [Reported in n Cent. 626; 12 Atl. 658.] The case was next to the last on the list, and the delay of a single day, perhaps, on the part of appellant in perfecting his appeal, would have postponed this appeal until March, 1888.
    
      Edward F. Hoffman, for rule.
    The effort to open this judgment, under all the facts, as above stated, presumes an attempt to cause delay.
    , Dwight M. Lowrey and A. U. Bannard, contra.
    The appellant brought the case to a hearing in this court with the utmost dispatch.
    Security for stay of execution does not operate as an implied agreement not to attack the judgment: Ranck v. Becker, 12 S. & R. 412-16.
    The entry of the stay and the payments on account, like the confession of the judgment itself, constitute no estoppel and present no obstacle to the opening of the judgment: Earnest v. Hoskins, 100 Pa. 558-9.
   Per Curiam,

Rule discharged.

See, also, the preceding case.  