Thompson v. . Blanchard ( 1850 )

The undertaking of the appellant in this case was drawn with reference to, and is in precise conformity with the requirements of § 335 of the code. In this we all agree It is a necessary implication from the statute, that an undertaking thus executed shall be effectual to sustain an appeal and an action in behalf of the appellee, if the judgment appealed should be affirmed in whole or in part. The legislature, however, have not left the matter to implication. They have enacted that "when an appeal shall be perfected as provided by the 335th section, it shall stay all proceedings in the court below upon the judgment appealed from, or the matter embraced therein." (§ 339.)

It is objected notwithstanding that the instrument is nudum pactum, not because there is no consideration in fact, but because none is expressed in the writing. The answer is, that the statute required an undertaking in writing with certain prescribed stipulations, and nothing else. An undertaking is a promise. (Bouv. L. Dict.) It may be made with or without consideration. If the promise was in writing, the consideration need not be expressed, it might be proved in all cases by parol. The common law was satisfied if there was a consideration in fact to sustain the undertaking. Neither before nor since the statute of frauds, has it ever been held that an undertaking, or promise,ex vi termini, imports a consideration. In Wain v.Warlters, (8 East, 10,) under the English statute of frauds, it was for the first time decided that the word agreement implied a consideration. But that case proceeded upon the distinction between an agreement and an undertaking. Lord Ellenborough stated the question to be, whether "agreement, in the statute, was synonymous with promise or undertaking, or signified a mutual contract upon consideration." And all the judges concurred in saying, that had the statute required only that the promise should be in writing, instead of the agreement in respect to which the promise was made, their opinion would have been different.

The legislature, in the section referred to, have said that an undertaking, to the effect prescribed, shall be effectual. We have no authority to add other conditions. If it be said that such an instrument would not be obligatory by the statute of frauds, the very obvious answer is, that the legislature of 1848 had the same power to restore the common law, as to this class of securities, that their predecessors had to abolish it. 2d. The undertaking prescribed by the 335th section is a statute security and not a common law agreement. Agreements which derive their obligation from the common law, and no others, are enumerated in our statute, and required to be made in writing, expressing a consideration. (2 R.S. 136.) The objection I am considering assumes that the undertaking in question falls within one of the classes of agreements there specified. It has however been generally supposed, that the assent of more than one party was essential to the validity of an agreement at common law. Lord Ellenborough calls it a mutual contract upon consideration. The consideration being one element of the agreement, must of course be the subject of arrangement between the parties, before it can be expressed in writing. Accordingly where a contract has been executed by both parties, evidence is required in addition, of delivery and acceptance, or something equivalent, in order to show their assent to it as a perfected instrument, mutually obligatory upon them. The necessity for this, when is is executed by one of the parties only, is apparent. Now the undertaking in question was properly prepared, executed, and filed with the clerk, by the appellant, without any communication or arrangement with the appellee. (§§ 343, 340.) The assent of the latter was not necessary to the creation of the obligation, nor would his dissent defeat, or in the slightest degree modify its effect upon his own, or the rights of the other party. And so we have in effect decided, in a case between these parties. (2 Comst. 562.) The only consideration that can be imagined, for the undertaking of the defendant and his sureties, is the stay of proceedings upon, and the right to review the judgment obtained by the plaintiff. But this delay and privilege is the act of the law, against the wishes and in spite of the opposition of the respondent. What possible application, therefore, has the statute designed to prevent frauds and perjuries in reference to common law contracts, to an undertaking, the contents and legal effect of which are written on the face of the statute? What fraud is to be suppressed, or perjury avoided, by making this appellant certify, under his signature, to a consideration which, if it exist at all, did not arise from the agreement of parties, but from a law which this court, and all others, are bound judicially to notice? At most it would be but cumulative evidence of the provisions of a statute.

We think, for the reasons assigned, the undertaking sufficient and the appeal well brought.