Wells v. Bentley

3 Pa. 324

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1846
• Status: Published

Opinion

Per Curiam.

The prothonotary’s approval of the bond is required for the creditor’s protection; and it is a common law maxim, that any one may forego a legal advantage given to himself. The creditor did forego the right of approval in this instance, by the very act of suing on the bond as a valid one; and it is immaterial, therefore, whether the act of approval be judicial, or susceptible of performance by a deputy, as it is clear, that the omission of it by the prothonotary or his clerk, or by both, could not be insisted upon as a defeasance, after the bond had done its office in setting the insolvent debtor at large.’ As the certificate of approval is no part of the instrument, the contract is complete without it; and it would be strange if the party bound by it might avoid its obligations, by insist- ’ ing on an accidental omission in a matter with, which he had no concern, and which benefited instead of prejudicing him; and by thus turning a clause introduced into the statute for the creditor’s safety, to his detriment. But the very point was decided in Stroop v. Gross, 1 Watts & Serg. 139; and the plaintiff ought therefore to have been allowed to recover.

Judgment reversed, and venire de novo awarded.