ness with the bank as a depositor and

otherwise.

2.

That between August 16, 1875, the date of the maturity of the note, and December 8, 1875, the date of the closing of his account, he had on deposit in the bank sufficient funds to pay the note.

Under these facts we consider the law of the case to be properly stated in Miller v. Stem, 2 Penn'a St. Rep. and that the surety or endorsed is discharged

I.

1. By virtue of an extension of the time of payment, which was sufficiently definite to meet the requirements of the law,

and

2. Because there was a valuable and sufficient consideration in the case.

Therefore judgment is now entered in favor of the defendant, and against the plaintiff, non obstante verdicto.

The specifications of error were

I. The court erred in holding that the defendant was discharged by reason of the extention of time, as follows: "By virtue of an extension of the time of payment, which was sufficiently definite to meet the requirements of the law."

2.

The court erred in entering judgment upon a point which was not reserved.

3. The court erred in directly judgment to be entered in favor of the defendant non abstante verdicto.

Opinion by Green, J. May 25, 1883. We assume that the matters contained in the fifth clause of the agreement of facts signed by the parties constituted an actual agreement, though it is not so stated. The sixth clause, however, refers to the subject of the fifth as "the agreement aforesaid." As there stated, the agreement between the bank and Lowenstein, extending the time for the payment of the note in suit, was indefinite, as "no particular time was specified or agreed

We are not able to concur with the court as to the character of the agreement for extension of time of payment. Nothing is said about it in any other part of the paper, except the fifth clause, and there it is distinctly stated that no particular time was specified or agreed upon. The remainder of the clause speaks only of a proposition for more time to pay the note,

an increase of the rate of interest to be

paid, and a continuation of business by

Lowenstein with the bank. We see no element of certainty in this as to the time when the note was to be paid. On the contrary, that time is essentially indefinite and uncertain, and there was nothing to prevent the bank from bringing suit on the note the next day after the agreement to extend was made. This being so, the endorser could, by paying off the note, demand its surrender, and commence an action immediately. This consideration brings the case clearly within the operation of the rule as stated in Miller v. Stem, 2 Barr 386, and the line of cases which have followed, and never questioned it. All the elements of the rule are thus presented in Henderson's Administrator v. Ardery's Administrator, 12 Cas. 451. "That a creditor, having a principal debtor and a surety, discharges the surety by entering into an agreement with the principal, which can be enforced at law or in equity, whereby he extends the time of payment for any indefinite period beyond that mentioned in the original contract, is proved abundantly by our authorities." In Miller v. Stem, the case turned upon this very question, together with an absence of consideration. On page 288 we said; "But mere consent to forbear for a loose and uncertain period does not tie up the creditors' hands."

And also: "To take away from the plaintiff a just debt in order to relieve a surety, justice requires there should be a clear, distinct agreement by the creditor, placed beyond reasonable doubt for a time certain or total forbearance, or forbearance for a reasonable time." In Brubaker v. Okeson, 12 Cas. 522, Strong, J., said: "Nothing short of an agreement to give time, which binds the creditor, and prevents his bringing suit, will discharge the surety." As we have observed, there was no agreement to extend the payment of the note in suit for any definite time, and therefore the bank was not prevented from bringing suit at any time, and the judgment of the court below must be reversed for this reason. Another point was made, however, though not determined by the court, notwithstanding it was reserved, which, if sound would still defeat the plaintiff's right of recovery. It grew out of the fact that Lowenstein continued to do business with the bank, and had at various times sums on deposit with the plaintiff sufficient to pay the note. It is contended that these funds, being within the power of the plaintiff, an obligation arose to appropriate them to the payment of the note as in favor of the endorser, and this not being done, the latter was discharged. We do not think so. While it is true that a bank is a mere debtor to its depositor for the amount of his deposit, and therefore, in an action by the bank against the depositor, on a note upon which he is liable, the latter may set off his deposit, yet we do not think the bank is bound to hold a deposit for the protection of an endorser of the depositor. A bank deposit is different from an ordinary debt in this, that from its very nature it is constantly subject to the check of the depositor, and is always payable on demand. The convenience of the commercial world, the enormous amount of transactions by means of bank checks occurring on every business day in all parts of the country, require that the

greatest facilities should be afforded for the use of bank deposits by means of checks drawn against them. The free use of checks for commercial purposes would be greatly impaired if the banks could only honor them on peril of relieving endorsers, without an investigation of discounted paper. This question does not seem to have frequently arisen in the courts, but in three cases out of four to which we have been referred, the right of the bank to pay out the deposit of the party in default on his paper, without relieving the endorser, has been affirmed. Thus in Maryland, in the case of Martin v. Mechanics' Bank, 6 Har. & Johns, 235, in an action on an inland bill of exchange by an incorporated bank, as the holder of the bill which they had discounted before it became due against the payee, evidence was given that the acceptors of the bill on the day it became due, and for a long time before, and for several months thereafter, kept an account at the said bank by depositing, and from time to time checking out money, and that on the day the bill became due they had no money in bank, but that about a month afterwards a balance was struck between the bank and the acceptors, when they had a sum of money sufficient to have discharged the bill. Held, that the bank was entitled to recover the amount of the bill from the payee; that the conduct of the holders of the bill with regard to the acceptors, was not a waiver of their right against the endorsers, nor a release as to them; and, as between the holders and acceptors, there was no payment. The case was elaborately argued by counsel, and fully considered by court. It was held that a deposit of money in a bank by a regular depositor is not to be regarded as an appropriation by him of the money deposited to the payment of existing indebtedness of his, but rather for the mutual benefit and convenience of the bank and depositor, "according to the common course of business in our money institutions." On page

247 the Chief Justice said: "The mere placing money in bank on deposit by the Messrs. Woods had not of itself the affect to discharge the appellant from his liability as endorser of the bill; and the not diverting, by the plaintiffs, the money from the purpose for which it was so placed and received by them in bank, and applying it to the payment of the bill, was not more to the prejudice of the endorsers that their forebearing to sue the acceptors and did not amount in law to a waiver of their right of action against either of the parties? In Voss v. The German American Bank, 83 Ill. 599, it was held that where the principal on a note payable to a bank has funds on deposit in the bank after maturity more than sufficient to pay it, the omission of the bank to appropriate the deposit to the payment of the note will not discharge the surety. In New York, in case of the National Bank of Newburgh v. Smith, 66 N. Y. 271, it was held, that where, after the maturity of a promissory note held by a bank, and due protest and notice thereof, the maker makes a general deposit in the bank, of an amount sufficient to pay the note, this does not of itself, as between the bank and an endorser, operate as a payment. In the absence of any express agreement or directions it is optional with the bank whether or not to apply the money in payment; it is under no obligation to do so. The case of McDowell v. The Bank of Wilmington, I Harrington 369, in the State of Delaware, holds the contrary doctrine; but we think the better reason is with the three preceeding cases, above cited. It is beyond question that the bank in the absence of any special appropriation of the deposit by the depositor, would have the right to apply a general deposit to the payment of any existing matured indebtedness of the depositor. But that privilege is a right which the bank may or may not exercise in its discretion. As before stated, a bank deposit creates a form of indebtedness of a peculiar and ex

ceptional character. It is thus stated in Morse on Banks and Banking, on page 35: "The bank is under the obligation of honoring the customers' drafts and checks whenever the same are presented for payment; provided, that at the time of such presentment, the balance of the account, if then struck, would show a credit in favor of the customer, of funds on which the bank has no lien, sufficient to meet the sum called for by the check or draft. The contract so to honor the depositors orders is implied from the usual course of business. The deposit is made with the tacit understanding that the bank shall respond to the depositors' orders so long as there is sufficient balance to his credit." It may well be that special circumstances may exists in particular cases, which will convert into an obligation or legal duty, as to endorsers and others contingently liable, that which would otherwise be a mere privilege of the bank. Thus an original direction by the maker and endorser on the one hand, and the bank on the other, that general deposits of the maker should be applied in discharge of the endorsed paper after maturity, or possibly a course of dealing to that affect, might suffice to create such an obligation. But, in the absende of such circumstances and of special direction we think that general deposits, made after maturity of the depositor's obligation, are to be treated in the same manner, subject of course, to the option of the bank, as the same class of deposits made at any other time and before maturity; that is, according to the general usage and understanding prevailing in the commercial world. We fully recognized the rule that where a principal creditor has the means of satisfaction actually or potentially within his grasp, he must retain them for the benefit of the surety; but we regard the case of bank deposits as an exception to the rule. We are not prepared to say, and do not hold, that when the bank has funds of the maker in hand, at the time of bringing suit, the endorser

may not avail himself of the maker's right of set-off in defence. In such a case the equities of the maker touch the holder directly, and are available to the endorser. Such was the decision of this court in case of Sitgreaves v. The Bank, 13 Wright 362, and we know of no reason why that doctrine would not be as applicable to the case of a deposit as to any other form of obligation by the bank to the maker. But in the present case the doctrine is inapplicable, because at the time of bringing this suit, it does not appear that the plaintiff held any money of Lowenstein's on deposit. In addition to this, it was part of the agreement for extension of the time of payment between Lowenstein and the bank that he should continue to do busi

ness with the bank. If he could not draw

out funds deposited, he could not do banking business, and we think there is a clear implication from the agreement for extension that Lowenstein was to be at liberty to draw against his future deposits, notwithstanding the dishonor of the note in suit. Such an understanding would operate against the right of the bank to appropriate such deposits to the payment of the note. In view of these considerations, we think the learned court below was in error in not entering judgment in favor of the plaintiff for the amount of the note and interest, on the point reserved,

in accordance with the verdict of the jury.

Judgment reversed, and now judgment is entered on the verdict in favor of the plaintiff and against the defendant for $2,977.45, with interest from the date of

the verdict, and cost of suit.

Earley's Appeal.

A borough has no authority to purchase a judgment so as to make it a set off against a judgment against the borough.

Article 9. section 7 of the Constitution, prohibits a borough from loaning its credit to any individual.

Appeal from the decree of the Court of Common Pleas of Luzurne county.

May 21, 1883. GORDON, J. On the 11th of September, 1879, a judgment was obtained by Roger Wood, for the use of M. C. Earley, against the borough of Pleasant Valley, in the sum of $476.93. On the 30th of August, 1880, a mandamus was issued for the collection of this judgment, which was returned served upon M. T. Hoban, the treasurer of said borough, who, for answer thereto, alleged that there was no money in the treasury. It seems that at the same time, Ho

ban, the treasurer, was the owner of two judgments against Early, No. 378 and 379 of May Term, 1877, which it appears, turned out to be worthless, because of the insolvency of the defendant. Then, on the 14th of June, 1882, the borough council, at a special meeting passed an ordijudgments from Hoban, for the sum of nance directing the purchase of said $150. It does not appear, from this ordinance, for what reason or purpose these

judgments were purchased, but Hoban, in his testimony, explains that he brought about the arrangement, and made the assignment, for the purpose of having them collected through the aid of the borough. It further appears that he agreed to indemnify it for any costs and expenses that might be incurred by its officers in the conduct of this business. The meaning of this transaction is easy of comprehension. The borough was to be used as

an instrument for the collection of Hoban's judgments; hence, we find, that the next step which was taken, after the alleged purchase by the borough, was to obtain the rule to show cause why these judgments should not be set off against that which Early was endeavoring to collect from the borough, and this rule, the court below, on the 15th of July, 1882, made absolute. Granting, however, that these judgments were bought, and paid for, in good faith, and for the sole purpose of subserving the interests of the

borough, there yet remains this question to be disposed of, whence did this municipality acquire the power to purchase, the outstanding judgments, or other obligations, of its creditors? We confess that even with the help of the argument of the learned counsel of the appellee, we have not been able to solve this proposition. It does seem to us, that if a borough, city, township or county, may buy up the judgments, bonds or notes of its creditors, it may buy those of any other person, and may thus, in effect, become a broker or banker. But the evils which must, in the nature of things, arise from the exercise of such a power by the various municipalities of this Commonwealth, are so obvious, and the power itself so contrary to every idea that we, as a people, have hitherto entertained, concerning the constitution of these public corporations, that we may set it down as certain, that it accords not with the policy of our government, and

that its exercise is therefore not allowable. But, as we have already observed, the facts of this case demonstrate that the borough is here being used as a mere instrument for the collection of the whole, or part of, Hoban's claim, against Early. Hoban, for this purpose, could not use the process of attachment, hence, as a substitute, a sale and assignment were resorted to, and in this manner he gets the borough's right of set-off; that is, he is credited with that right as against Early. But as this is clearly a loan of the credit of the municipality, it comes within the ban of the 7th section of the 9th Article of the Constitution of 1874, and we are therefore, compelled to pronounce against this carefully planned and, ingenious

scheme for the collection of a debt.

The decree of the court below is now reversed and set aside, and it is ordered that the appellee pay the costs.

Road in Menallen Township.

Road Law-Recommittal.

A report of viewers which sets forth that the terminus of a new road was at a "post in the Middletown and Arendtsville road," will be re-committed to the viewers scribe the location of the post. for amendment, with instruction to more particularly de

In re exceptions to report of viewers vacating and supplying a portion of the public road leading from a point on the valley road in Menallen township, at line of lands of Burkhart Wert and Josiah Griest, to a point on the Middletown and Arendtville road, at a line of lands of Moses Raffensberger and Abraham Bushey in Butler township.

Mr. McCreary, for exceptions.
Mr. Swope, for report.

MCCLEAN, P. J. The petition in this case instead of containing too little, may contain more than enough. The precedents and practice require that the petition should set forth distinctly the situation of that part of the road which the petitioners desire to have vacated, not the route or terminus of the substituted road, which are entirely for the selection and discretion of the viewers; Chartiers township road, 12 Wr. 514, vide, Road in Ross township, 36 Penn'a St. 87. Nelsons Mill road, 2 Leg. Opin. 54.

When we take up the Report we find the beginning of the substituted part distinctly enough stated, but not the ending. It was decided in Kyle's Road, 4 Y. 514. Tilghman, C.J., that no general rule can be laid down as to the definite points where a road shall begin and end being necessary to be stated in the petition. Id certum est, quid certum reddi potest. In the report we have the terminus a quo, the corner of the garden of Samuel Detrick and a terminus ad quem, the Middletown and Arendtsville Road. The latter was left to the judgment of the viewers.

The description of a road from the dwelling house of Matthew Miller to the public road leading from Carlisle to Har