Wilson and O'Kinealy, JJ.
1. This is a suit against a banker, or his representative by the representative of an alleged customer of the bank, to recover money deposited with interest.
2. (After stating the facts as above, and noticing other grounds on which the Lower Appellate Court had reversed the decision of the first Court, the judgment continued).
3. The remaining ground on which the decree of the first Court was reversed, the ground of limitation, gives rise to more difficulty. The question is whether the case is governed by Article 59 or Article 60 of Schedule II of the Limitation Act. Article 59, dealing with 'money lent under an agreement that it shall be payable on demand,' prescribes a period of three years from the time 'when the loan is made.' Article 60, dealing with 'money deposited under an agreement that it shall be payable on demand,' prescribes three years from the time 'when the demand is made.' If the former of these articles governs the case as held by the Lower Appellate Court, the suit is barred. If the latter governs, as held by the first Court, the suit is in time.
4. There can be little doubt probably that the money of a customer in the hands of his banker is money lent. And that Article (59) might apply to the case if Article 60 were not present. Probably too on the same supposition such money would often be money received to the use of the customer within the meaning of Article 62. But the question is not whether such a case is covered by the words of Article 59 or any other article, but whether Article 60 applies to it; for if it does, the more specific provision must prevail.
5. Assuming money paid to a man's credit with his banker to be money lent to the latter, the loan is at least of a very special kind, having many peculiarities, which have often been pointed out. And the question is whether such a transaction is a deposit within the meaning of Article 60. That in ordinary and popular language it is so there can, we think, be no doubt. Take up a newspaper, and look at the returns of any bank which publishes the details of its position, and you will always find public and private deposits used in the sense of balances. Indeed 'deposit' seems to us the word which any one not a lawyer would be more likely to use than any other to express money in a bank.
6. In the schedule in question the term 'deposit' or its correlatives are used in the article now in question, and in Articles 133 and 145. In the latter two instances, which have to do with moveable property, it is clear from the context that the deposit meant is a deposit of goods to be returned in specie, and that is in accordance with the old use of 'deposition,' with which all lawyers are familiar. In Article 60, dealing with money, it is equally clear that a return in specie is not contemplated. It is so first, because it would be contrary to the ordinary usage of the language to hold such a thing; deposits of money are made, for instance, under many Acts of the Legislature with public officers and others, and no one ever heard of the idea of the return of the identical coins deposited. It is clear, secondly, because the word 'payable' excludes suchan idea.
7. So far as the Act itself is concerned then, we have, in order to give a meaning to Article 60, to find a case in which one man places his money in the hands of another, on the terms that an equivalent sum is to be paid back on demand, and a case to which, according to the ordinary usage of the language, the term 'deposit' is applicable. And we think the case of the banker and his customer is exactly such a case.
8. Turning to the authorities, the decisions upon the earlier Limitation Acts do not seem to afford any assistance. There was in them no provision like that in art, 60. The only provisions as to deposits corresponded rather to Article 145 and clearly contemplated the return of goods in specie.
9. The meaning of Article 60 in the schedule to the present Act has been considered in the case of Earn Sukh Bhunjo v. Brohmoyi Dasi 6 C.L.R. 470. That case came on second appeal before White and Maclean, JJ. The facts are thus stated in the judgment of White, J. 'It has been found by the Lower Appellate Court that in 1861 the plaintiff deposited Rs. 1,000 with the defendant's father, who was to pay upon it interest, which was originally fixed at 15 per cent., but was subsequently reduced to 12 per cent., and that up to the close of the year 1282, corresponding with 1876, the plaintiff regularly received her interest. The agreement made at the time of the deposit was that the money be repayable on demand.' That learned Judge then says that 'the Lower Appellate Court considers that the transaction was a deposit, and that as the demand was alleged to have been only recently made, the plaintiff is not barred.' He dissents from the view that the transaction was a deposit; but he held that, viewing the case as one of loan, the same result followed, for interest had been paid within three years. In giving his reasons for not regarding the case as one of deposit under Article 60 the learned Judge said: 'In my opinion the transaction, though called a deposit, was in point of law a loan upon which interest was to run.' We quite concur in thinking that the mere use of the term 'deposit' cannot alter the substance of the transaction. And in that case, so far as appears from the report, the borrower was not a banker or a person carrying on any business analogous to banking; nor did the lender keep with him anything similar to a banking account. But the learned Judge added: 'I think that the word 'deposit' in the Limitation Act, as distinct from 'loan,' points to cases where money is lodged with another under an express trust, or under circumstances from which a trust may be implied.' Maclean, J., is only reported to have said: 'I concur in dismissing the appeal.' There is nothing to show whether he concurred in the view just cited as expressed by White, J., and that view was obviously not necessary to the decision of the case. We are unable to concur in the view there expressed by White, J. Had it amounted to a decision of the Bench, we should have thought it necessary to refer the present case to a Full Bench, but as it does not do so, we are bound to act on our own view of the law.
10. For several reasons we think 'deposit' cannot have been used to mean 'trust.' In the first place, so toehold appears to be giving a wholly new meaning to the word, for which there is no sanction in popular usage or in the ordinary terminology of the law, or in the context in which the word occurs. In the second place, the case of trust is elsewhere provided for in the Limitation Act. Thirdly, to apply Article 60 to express trusts might lead to great confusion, and might curtail very seriously the beneficial effects of Section 10 of the Act.
11. We think, therefore, that the suit is not barred by limitation, and that the decree of the Lower Appellate Court must be set aside and that of the Subordinate Judge affirmed with costs in all the Courts.