The opinion of the Court was delivered by
Huston, J.The law requires security to he approved hy the Court or hy a Judge thereof, for the sum recovered, together with interest and costs, to entitle to the stay of execution. If the informality is in the words of the recognisance as taken by the prothonotary, or if there is any informality before the court or judge, perhaps the court ought to permit it to be amended, as to form; but when one of the matters required is totally omitted, we do not see how this can be amended. There was nothing by which to amend. There was no approval of the security by the court or a judge. The law requires this; and I do not see how a court can dispense with it. It would be prudent in a defendant who was about to propose bail, to give notice to the plaintiff or his attorney; if this has not been done, it would be prudent in a judge, if he has any doubt about the sufficiency of the bail, to require notice to be given to the plaintiff. If this is not done, and bail are objected to, we do not say additional bail cannot be given. Further, the approval of the judge should be in writing, and filed, and an entry of it on the docket. If all this is done informality may be amended. But there must be a recognisance of bail, and this bail must be approved by the court or a judge, within the thirty days, or the requisitions of the law are not complied with: and we cannot say the court below had any power to dispense with them.
Judgment affirmed.
Cited by Counsel, 6 Wharton, 345.
Cited by the Court, 1 Watts & Sergeant, 141.