ruary ensuing, the charter was 'revived and continued in as full force, and ample a manner as if no forfeiture had taken place.' Held, that the sureties were not liable to the bank for the defaults of the cashier, which happened subsequently to the act of restoration. Bank of Washington v. Barrington, 2 Penn. 27.

2. (Cashier agent of the bank.) A cashier of a bank, although appointed by the directors, is the agent of the company; and if he permits a transfer of stock to be made to the bank to an amount prohibited by a fundamental article of the charter, he is answerable to the stockholders for any loss which may accrue in consequence of such transfer; notwithstanding a resolution of the board of directors authorizing it. 1b. 3. (Error of cashier.) An error against the bank, in the addition of a column of figures by the cashier, is prima facie evidence of a loss to the bank, to the amount of the error, and in order to avoid liability on the part of the cashier or his sureties, the burden of proof lies upon them to show that no loss accrued. Ib. 4. (Effect of dissolution.) The Penn. act of the twenty-first of April, 1814, which exacts a duty of eight per cent. upon the amount of dividends declared by any bank, provides, that upon the failure of the bank, to pay the same to the state treasurer, within a given period, he shall proclaim the charter of such bank to be forfeited. Held, that such proclamation having been made, and the charter forfeited, will not preclude the state from recovering in an action, the duty of eight per cent. also. Commonwealth v. v. Huntingdon Bank, 2 Penn. 438. BARGAIN AND SALE.

(Proof of consideration.) Where no consideration is expressed in a deed of bargain and sale, parol evidence may be given to show that a consideration did pass from the grantee to the grantor. White v. Weeks, 1 Penn. 486.

BILLS OF EXCHANGE AND PROMISSORY NOTES. 1. If the payor of a note stands by and sees it assigned to a third person, without giving the assignee notice of an existing defence, he shall afterwards pay the amount of the note to the assignee, although the consideration thereof should have entirely failed, and whether his conduct proceeded from ignorance or design. Decker v. Eisenhauer, 1 Penn. 476.

2. (Alteration.) One who executes a note as a surety, and gives it to the principal to be executed by him, and delivered to the payee, but who, before so doing, alters the amount mentioned in the note from a greater to a less sum, cannot take advantage

of such alteration upon the plea of non est factum. Ogle v. Graham, 2 Penn. 132.

3. (Witnesses.) Nor does it affect the validity of a note, that it was executed by one of the payors in the presence of one witness, and by the other in the presence of another, although it purports to be executed by both in the presence of two subscribing witnesses. Ib.

4. (Of partners.) A due bill signed by one partner or by the clerk, in the name of the firm, is prima facie evidence that it was given for the debt of the firm. Foster v. Andrews, 2 Penn. 160. 5. (Of partners.). If a note be given by one partner, in the name of the firm, for his own private debt, and the other partner, upon being informed of the transaction, does not dissent or give notice to the payee, that he will not be liable, he shall be bound lb.

6. (Without defalcation.) The words 'without defalcation,' in a single bill or note under seal, do not preclude the obligor from making a defence to a suit brought by the assignee for value received. Houk v. Foley, 2 Penn. 245. 7. (Rights of assignee.) Every bond or note under seal is liable to investigation as to its truth and fairness in the hands of the assignee or indorsee-the single exception is where the assignee calls on the obligor who tells him there is no defence, or where the obligor induces the assignee to take it.

8. (Variance.) A variance in the date, or in the substance of a note offered in evidence, from that set out in the statement, is a fatal objection to such evidence. Church v. Feterow, 2 Penn.

301.

9. (Alternative.) When a note is given for the payment of a certain sum of money, within a certain time, to be paid in furniture or other specific articles; until the day of payment, the payor has an election to pay either in money, or in such specific articles, but after the day of payment is past, his right of election is gone, and the payee's right to demand the money is absolute. lb.

10. (Consideration.) The compromise of an action of slander, in which the words laid in the declaration were not actionable, is a good consideration for a note for the payment of money. O' Keson v Barclay, 2 Penn. 531.

BOND.

1. (Waiver of set-off.) If one who is about to receive the assignment of a single bill, call upon the payor to know whether he

will pay the money, and is informed by him that he will, he cannot afterwards set up any defence against the payment of the money to the assignee, which existed previous to such declaration. Elliott v. Callan, 1 Penn. 24.

2. (Waiver of set-off.) One about to take an assignment of a bond, is bound to inquire into every circumstance that might be set up against payment of any part of the debt, and having failed to do so, he stands exactly in the place of the obligee. Frantz v. Brown, 1 Penn. 257.

3. (Waiver of set-off.) It is competent, therefore, for an obligor to set up as a defence to the payment of his bond in the hands of an assignee, a parol agreement between him and the obligee, made after the bond was executed, but before it was assigned, that in a certain event, which might and did happen after the assignment, the bond was not to be paid. 1b.

4. (Sealed by one of two.) A signed his name to a blank paper and gave it to B, for whom he had agreed to be surety to C, for money about to be borrowed. B got the money and wrote a joint and several note, together with his own signature, and put a seal to it, above the signature of A, and also a seal to the signature of A: held, that in a suit on the note, against B alone, he could not avail himself of these circumstances, as a defence, upon the plea of non est factum. Pallerson v. Palterson, 2 Penn. 200.

See EXECUTORS, &c. 12.

CON SIDERATION.

(Forbearance.) An agreement to forbear to sue for a reasonable time, is a consideration certain enough, upon which to sustain an action. Sidwell v. Evans, 1 Penn. 383.

See BILLS, &c. 10.

CONSPIRACY. See FRAUD, 3.
CONSTITUTIONAL LAW.

1. (Statute cannot divest rights.) The legislature passed an act, to authorize the incorporation of a company for the purpose of making a turnpike road, between specified points; books were opened by the commissioners appointed to take subscriptions of stock, at two different places on the contemplated route; but subscriptions to an amount sufficient to authorize the granting of a charter, were not obtained. A supplement to the original act was then passed, which divided the contemplated road into two parts, authorized the granting of two charters, and provided that those who originally subscribed for stock, at a certain place, should be members of one of the companies; and those who

subscribed at another place should be members of the other. Held, that the latter act is unconstitutional; and that one of said companies cannot recover from an original subscriber the amount of stock subscribed by him. Indiana T. R. Company v. Phillips, 2 Penn. 184.

2. (Conscientious scruples.) The conscientious scruples of a Jew to appear in court and attend to the trial of his cause on Saturday, the Jewish sabbath, is no ground for the continuance of his cause. Simons v. Gratz, 2 Penn. 412. CONTRACT.

1. (Delivery of a part.) When a contract is entire, for the delivery of a number of specific articles, at a certain time and place, the vendee is not bound to receive a part; and though part be delivered, he is not liable to pay for the same, if willing to accept and pay for the whole. Roberts v. Beatty, 2 Penn. 63.

2. (Acceptance of a part.) If the vendee accept a part, he thereby disaffirms the entirety of the contract, and will be obliged to accept and pay, for so many articles as are individually furnished according to the contract. lb.

3. (No time or place fixed.) The general rule of the common law is, that when no time or place is fixed by the contract for the payment or delivery of specific property, there must be an offer or tender within a reasonable time to pay or deliver. If no place be fixed, the obligor or payor must seek the creditor, if within the State, and tender or offer to perform the stipulation contained in the contract; and if the property is portable, it must be taken to the creditor and delivered to him; or at his residence. If the property be too ponderous, then the debtor must call upon the creditor a reasonable time before, and ask him to appoint a time and place when and where he will receive them. lb.

4. (Doubtful event.) Where each of the parties to a contract treat a matter as doubtful, and is content to take the risk of its turning out in a particular way, chancery will certainly not relieve against the event. Ascum v. Smith, 2 Penn. 211. 5. (By sheriff at sale.) A sheriff is bound to sell the debtor's whole interest in the land, and can lawfully reserve nothing for him, either in the land or the price of it, and any contract to do this in prejudice of the lien creditors would be positively illegal, and no action could be sustained, nor can the defendant by any transfer to another, give a right to enjoy the fruit of such a contract. Riegle v. Seiger, 2 Penn. 340.

6. (Performance by plaintiff.) When a contract is entire, before any recovery can be had of the consideration money, the plaintiff must prove, that he has performed, or is ready to perform his part of the contract, or that the performance was prevented by the defendant. Shaw v. Turnpike Co. 2 Penn. 454. 7. (Waiver of right.) Either party may waive any right introduced into, or provided by the contract, either expressly or tacitly, by acts or declarations, fairly indicating a relinquishment of any provision or part of a provision, and without the performance of which, unless relinquished or waived, a recovery could not be had. In all such cases, the facts are for the determination of the jury; but whether, if established, they amount to a waiver, is a question of law. Ib. 8. (Subscription for stock.) The benefit which results to individual property by the incorporation of a company and location of a public road, does not, in contemplation of law, enter into the consideration of the contract of subscription; and such subscriptions are necessarily subject to the power of the legislature to change the location of the road, where the contrary is not expressly stipulated. Irvine v. Turnpike Co. 2 Penn. 466. 9. (In consideration of embarrassments.) A release in consideration of present embarrassment, is, necessarily, on an implied condition in morals, that advantage be not taken of it, after the the embarrassment has ceased. That which has been conceded to a debtor's necessities, may be justly and honestly retracted on the principle of failure of consideration, when he no longer has necessities to be relieved. All that is wanting to that end, is a legal means, which the creditor may conscionably use when it is put into his hands by the debtor himself; such as a subsequent promise to pay. McPherson v. Kees, 2 Penn. 521. 10. (Consideration.) A having released a debt of the estate of which he was executor, subsequently settled his administration account in the Orphans' Court, as did also B his coexecutor. In consideration of some arrangement B charged himself with the debt thus released by A, and the accounts were confirmed. Held, that the confirmation of the accounts by the Orphan's Court was a conclusive discharge of A from all liability to pay the debt released by him, and that there did not remain such a moral obligation on his part, as would be a sufficient consideration to support a subsequent promise to pay it. Such promise was without consideration, and there could, therefore, be no recovery upon it. Ib.

See CONSIDERATION, 1, 13; FOREIGN LAW AND JUDGMENTS, 1.