In the Turnpike Company v. Brown, 2 Penns. Rep. 462, it was held, that the law implies no promise to pay tolls for the use of a turnpike; but it was not intimated that an express contract to pay tolls, or any other stipulated sum, is not binding. Such contracts are of daily occurrence; and it would be not only a misconstruction, but highly inconvenient to hold them to be inconsistent with the regulations of the charter. Here a promise is explicitly laid; and whether it were express or implied, being matter of evidence and not of pleading, can not be told from the record, since every promise is laid according to its legal effect, and consequently in the same way. If the point therefore be not made at the trial, it cannot be made on a writ of error, by an allegation that the plaintiff had not shown a cause of action; for such an allegation must be contradicted by the record. As to the assignment of a new day for the hearing, the defect, if it were one, was cured by the defendant’s appearance, though under a saving of exceptions. It was open to him to refuse to go on, or to waive exception; but not to *129take the benefit of an actual defence, and yet give an exparte character to the proceeding. He thought proper to go on, and he is concluded by his election.
Judgment affirmed.