Page:Harvard Law Review Volume 9.djvu/175

NOTES. 147 76 Tnd. 223; Vossv. Ea7tk, 83 111. 599; Martin v. Bank, 6 Har. & J. 235 ; Bank v. Peck^ 127 Mass. 298 {obiter). It is of course well settled that in cases of this sort the bank may, if it chooses, refuse to pay so much of its debt to the depositor as will equal the debt which the depositor in turn owes the bank. If this right of refusing to pay, which is sometimes called a set-off and sometimes a lien, is a genuine lien, it would seem to follow that the bank, by voluntarily payuig the depositor's claim, relinquished a lien, and so discharged a surety on the depositor's note, in like manner as the relinquishment of any other security would discharge a surety. May not this right of refusing to pay the depositor's claim very properly be regarded as a lien — a lien on the claim ? It gives the bank the right of retaining control over the claim for the purpose of security, and such a right, when given by law over the property of another, is certainly very similar to a lien. To be sure it is a lien on a chose in actio?t^ but that does not seem to be an in- superable difficulty. A stock certificate is a chose in action, and clearly the bank would have a lien on a stock certificate deposited with it, even if the certificate happened to be one of its own, and so, as in the principal case, a claim against the bank itself. The only difference, so far as is perceived, between the case of the stock-certificate and the principal case, is that in the latter there is no formal assignment to the bank of the depositor's claim, the chose in actiofi. But as the law has already given the bank power to deal with the claim for its security in like manner as if it had been assigned, a formal act of assignment does not seem to be called for. If it be conceded that the banker's right of control over the de- positor's claim is a lien on the claim, there would seem to be no diffi- culty on principle with the Kentucky decision ; for payment of the claim would clearly be a relinquishment of the lien, and so a discharge of the surety. That the result which the case reaches is a desirable one from the standpoint of justice and convenience seems hardly open to question. If the bank wishes to be polite, and honor its depositor's checks regard- less of the state of accounts between them, it ought not to call on the surety to make good the resulting loss. Statute of LiMrrATiONS. — An interesting point, apparently a novel one in this country, has arisen in the Pennsylvania courts {Lewey v. Frick Coke Co., 31 Atl. Rep. 261). The defendant company mined coal under the plaintiffs land, inadvertently it would seem, though the report is not clear. For seven years the plaintiff had no means of discovering the de- fendant's act. The defendant, in an action of trespass, set up the Statute of Limitations. The court, in its alternative capacity of court of equity, treated the action as though the plaintiff had brought a bill of account for coal taken ; and declined to apply the Statute of Limitations on the ground that before a plaintiff has had reasonable means of discovering the existence of his cause of action, equity will not allow the Statute of Limitations to operate as a bar to his suit. The court satisfactorily distin- guishes an underground trespass, with its exceptional characteristics, and its difficulty, often impossibility, of speedy discovery, from a surface trespass, where the owner of the close is held to know, constructively at least, of any invasion of his boundaries. Some hesitation may be felt in admitting the propriety of allowing a bill of account for coal taken with- 20