The opinion of the Court was delivered by
Rogers, J.I am inclined to think, that the 77th section of the Act of the 14th of April 1834, which enables prothonotaries and clerks of the several courts of the commonwealth to take bail in civil actions, depending in the respective courts, does not authorize them to take recognizances for stay of execution. This power is regulated by the Act of 1806, enlarged by the 4th section of the Act of the 16th of June 1836. It was the practice throughout the state for the prothonotary to take the security for the stay of execution, under the first act, although it is not expressly made their duty. The act of the 16th of June, in addition, requires that the security shall be approved by the court, or a judge thereof, but also omits to direct by whom the recognizance shall be taken; but I see no reason why we should alter the practice in that respect, to be perfected afterwards by the approval of the court, or by a judge. The approval of the court is intended for the benefit of the creditor, and when the defendant omits to have the security approved, he, the creditor, may treat the recognizance as a nullity, and have his execution, on the judgment, as in Eichman v. Belvedere Bank. 3 Whart. 70.
But the approbation of the court being designed for the advantage of the creditor, he may waive, either expressly or impliedly, by an acquiescence in the claim of the debtor to it, the benefit of the cesset. But this privilege is not extended to the debtor, for it would be against common justice that he should take advantage of a defect, which has arisen from his own default, after he has, by the forbearance or with the assent of the creditor, derived every benefit which would have resulted from a recognizance executed and approved with all the formalities required by the Act. Nor can we perceive that the bail who has identified himself with his principal, is in any better situation than the principal himself, whose duty it was to perfect the recognizance.
The judgment by default was rendered secundum regulam. The notice was substantially good, as the attorney on whom it was served could not have mistaken its object, or the suit in which the plea was demanded.
Judgment affirmed.