¶1 There can not be a valid contract without a quid pro quo, or sufficient legal considera *339 tion. (Co. Litt. 47, b ; Dyer, 336, b ; Plowd. Com. 308 ; Com. Dig. Agreement, B. 2.) Some instruments import a consideration, as bills of exchange, promissory notes, and writings under seal; and in suing upon them it is not necessary to aver or prove a consideration. But in suing upon other promises and engagements, whether written or verbal, it is necessary to aver and prove a consideration, unless one is expressed on the face of the instrument. There is one case which favors the notion that a promise without a consideration may be good, if it be in writing. (Pillans v. Van Mierop, 3 Burr. 1663.) But that case was long since overruled, both here and in England. (Sears v. Brink, 3 John. 210; Rann v. Hughes, 7 Bro. P. C. 550.; 7 T. R. 346, note, S. C.) Mere words of promise, undertaking or agreement, whether written or verbal, do not make a contract, unless there be a consideration.
¶2 The instrument in question is not a specialty, nor is it a bill of exchange, or promissory note, which imply a consideration; and no consideration whatever is expressed, There is not even an attempt to express one. The persons who sign the instrument are sureties for Blanchard: they begin by reciting that he has appealed from a certain judgment, and then say, “ now therefore we do undertake that he will pay,” &c. No reason is given, nor motive assigned for making the promise. It would have been just as well if they had said, “ whereas Blanchard owes a certain debt; now therefore we do undertake that he will pay it.” Indeed, the two cases are identical, except that in this case there will be no debt to be paid if the judgment shall be reversed.
¶3 Formerly the security required of a party prosecuting an appeal or a writ of error was a bond, and nothing else would answer the purpose : but now the security may be any “ written undertaking;” (Code, §334—343;) which includes every form of valid written contract. The statute speaks only of an “ undertaking,” without eith er prescribing its form, of declaring what shall be a good one. Those things are left to be settled by general principles. Clearly there must be a valid contract—one which can be enforced against the parties to it; and a promise with *340 out, a consideration is not such a contract—it is no contract at all. •
¶4 There must be an undertaking to do certain specified things: those things are mentioned in this writing; and in that respect there has been a full compliance with the statute. But there is no valid promise or agreement to do those things, or to do any thing else. The sureties say, “ we undertakebut that is not enough without a consideration. The writing conforms to the code so far as relates to the things to be done ; but it is utterly defective for the want of an “ undertaking” to do those things.
¶5 There is evidently nothing in the argument that this is good as a statute security. The statute does not say that the word “ undertake,” without a consideration, shall make a binding contract; and the common law says it shall not.
¶6 There is not only a failure to express a consideration, but there is no consideration in point of fact. When an appeal is duly perfected, proceedings on the judgment in the court below are stayed, and the appellant has a review, (s 339.) But without a proper undertaking, an appeal is not effectual for any purpose. (§ 334.) And as there is not a good undertaking, there is neither stay of proceedings, nor a review. It follows, that there is neither benefit to the appellant, nor damage to the respondent; and therefore nothing which can be called a consideration. To say that there is a stay and a review, and therefore a consideration, is plainly begging the question. Without a quid fro quo there is no undertaking; and without an undertaking there is neither stay nor review. And as nothing is either gained by one party or lost by the other, there clearly is no consideration.
¶7 If there was in fact a consideration, it would be a fatal objection that it is not expressed in the instrument. This is a promise by sureties to answer for the debt or default of another person; and by the very terms of the statute of frauds the consideration must be expressed in" the writing. (2 R. S. 135, § 2.) The case is none the less within this statute because the party is required by law to find sureties. The code says nothing about repealing the statute of frauds, or excepting this case out of its operation; *341 nor does it make any change in the law of contracts. It does not say that a promise by a surety shall be good without expressing a consideration, nor does it say any thing else which is in the slightest degree inconsistent with the statute of frauds. There is therefore no color for the argument that one statute has been repealed, or in any way affected by the other. The code requires an undertaking with sureties, but without giving a form, or saying what shall be a good one. Those things are left to the influence of the previously existing laws. The com mon law says there must be a consideration; and the statute of frauds adds, that the consideration must be expressed in the writing. This instrument is condemned by both of those laws.
¶8 It was an easy thing to make a valid instrument. The addition of seals, or the acknowledgment of a consideration, however small, received from the respondent, would have answered the purpose. Whether the law is wise either in requiring a consideration, or in allowing the objection to be so easily obviated, are questions with which I have no concern.
¶9 Unless the appellant amends in pursuance of the code, (§,327,) I am of opinion that the motion should be granted.
¶10 Motion denied.