Dissenting opinion by
Judge Paynter:I dissent because I am of the opinion that the bank could have brought its suit at any time after the debt matured. If it was misled by the deposit, it was again placed in a position to extricate itself from the effect of it, because within six months it was advised by the suit to have it so treated, that it was a preferential act. When this was done the bank was bound to take notice of the effect of the transaction, and if it desired to keep the statute of limitation from running, it should have brought its suit. After deducting the time which elapsed between the date of the deposit and the institution of the suit to have it adjudged a preferential act, more than seven years elapsed after the maturity of the note until the suit was brought on it. If the surety had pleaded that the deposit paid the note, the bank could have successfully shown it did not amount to a payment of it, because of the preferential character of the act. The debt was never extinguished, and was enforceable.