1858. FERGUSSON v. NORMAN. house with a number; and also, that he was a lodger, except in the two cases above-mentioned. Barstow, for the Plaintiffs. The Pawnbrokers' Act, 39 & 40 G. 3. c. 99. s. 6., enacts, that the pawnbroker, before advancing any money on a pledge, shall enter a description of the goods in a book; the name of the person pawning them; the name of the street and number of the house in which such person shall abide, and whether lodger or keeper of the same; using the letters L. and H. for that purpose; the name and abode of the owner of the goods, according to the information of the person pawning: into all which circumstances the pawnbroker is required to inquire: that he shall number each entry; and upon taking the pledge shall give to the party pledging a memorandum corresponding with the entry. In the nine cases, therefore, in which the Defendant has entirely omitted in his books the letters L. and H.; in the sixty-seven in which there have been omissions in the duplicates, and in the single case entirely omitted in his books, the Defendant having violated the injunctions of the statute, acquired no property in the goods as against the Plaintiffs, and can establish no lien. dience to those injunctions being required before the advance of any money, neglect of the condition precedent renders the contract void; and this, notwithstanding the disobedience is visited with a penalty under s. 26.; for the object of the act was general, to prevent depredation, by rendering detection easy; and in Bartlett v. Viner (a) it is laid down, that every contract contrary to a statute is void. In Law v. Hodson (b) it was held that the statute 17 G. 3. c. 42., which requires bricks for sale to be of certain dimensions, and gives a penalty for the breach of that regulation, being passed to protect the buyer against the fraud of the (b) 11 East, 300. (a) Carth. 252. Obe seller, if bricks be sold and delivered under the statutable size, unknown to the buyer, the seller cannot recover the value of them. And since the case of Forster v. Taylor (a), it may be safely advanced as a general proposition, that an act forbidden to be done, under a penalty, is in legal effect absolutely prohibited, and that the prohibition exists whether the penalty be introduced in a statute passed for a financial object, or for the general protection of society. So in Cope v. Rowlands (b) it was held that a broker could not maintain an action for work and labour, and commission for buying and selling stock, &c., unless duly licensed by the mayor and aldermen of the city of London, pursuant to 6 Anne, c. 16. In Armstrong v. Armstrong (c) Lord Brougham C. said, "If a person agrees with another to be a secret partner in the business of a pawnbroker, he agrees to do that which is illegal and punishable by the 39 & 40 G. 3. c. 99., an act containing provisions highly beneficial, and bringing the trade in question under regulations which are wholesome to the community, inasmuch as they prevent the abuse of such traffic; regulations which will never be objected to by the respectable part of the body concerned in carrying the trade on, and which only affect those whom the police ought to watch over." And in this respect there is no difference between seeking to enforce a contract, and asserting a 'claim to a lien; for Fitzroy v. Gwillim (d), which seemed to countenance such a distinction, has been overruled by Wood v. Grimwood (e) and Hargreaves v. Hutchinson. (g) Petersdorff, for the Defendant. There is nothing in the case to shew that the Defendant took more than (a) 5 B. & Adol. 887. VOL. V. (d) 1 T. R. 153. 1838. FERGUSSON V. NORMAN. 1838. 5 per cent. interest; and unless he did, he is exempted, by sect. 30., from observance of the formalities preFERGUSSON Scribed by sect. 6. It is the province of a jury to say what was the nature of the contract; Tregoning v. Attenborough. (a) V. NORMAN. But even if he were lending money in the capacity of a pawnbroker, he has his lien on the goods for the money advanced, notwithstanding he may have failed to observe the regulations prescribed by sect. 6. Even where a claim is barred by the Statute of Limitations, it has been held that the creditor may still avail himself of a right of lien; Higgins v. Scott (b), Nicholson v. Chapman. (c) The right to enforce a contract, therefore, and the right to insist on a lien, are not corelative and co-extensive. It is true a lien cannot arise on a tortious taking: but these goods were taken on an advance of money; and an illegal act, collateral to the loan, will not deprive the lender of his securities. Thus in Kerrison v. Cole (d), it was held that though a bill of sale for transferring the property in a ship by way of mortgage might be void as such, for want of reciting the certificate of registry therein, as required by the statute 26 G. 3. c. 6. s. 17., yet the mortgagor might be sued upon his personal covenant contained in the same instrument, for the repayment of the money lent. So, in Readshaw v. Balders (e), a covenant in an annuity deed, made prior to the statute 46 G. 3. c. 65. s. 115., which statute had a retrospective operation, whereby the grantor of the annuity covenanted to pay the same on the days and times specified, without any deduction in respect of the then present or any future property tax,-was held to be void in respect (a) 7 Bingh. 97. (d) 8 East, 231. (e) 4 Taunt. 57. 1838. FERGUSSON บ. of its obligations on the grantor not to deduct the property tax, but not in respect of the payment of the annuity, subject to such deduction; and in Mouys v. Leake (a), where, in a deed of grant of a rent-charge NORMAN, by a rector out of his benefice, the grantor also covenanted personally to pay the rent-charge, and gave a warrant of attorney to confess judgment as a collateral security for payment, the Court refused to order the deeds to be delivered up to be cancelled. The cases in which the Courts have held a non-observance of a statute to constitute a forfeiture of goods, or an avoidance of a contract, are cases in which such has appeared to be the intention of the Legislature; those cases are referred to in Cope v. Rowlands; but in the present act, from the circumstance that, under sect. 11., persons buying or taking in pledge unfinished goods, or linen or apparel intrusted to others to wash or mend, are to forfeit double the sum lent, and to restore the goods, and under sect. 13., where goods are unlawfully pawned, the pawnbroker is to restore them, while no such provision is made in sect. 6., it may be inferred that it was not the intention of the Legislature to avoid the contract, or deprive the pawnbroker of his lien for an omission to observe the formalities prescribed in sect. 6. Barstow, in reply. It sufficiently appears, from the facts found by the arbitrator, and the language used, that the Defendant took these goods in the capacity of a pawnbroker; and then, in order to found a right of lien, there must be a legal contract, which here there was not, for want of observing the conditions precedent to its validity. In none of the cases cited for the Defendant was the contract, as here, void ab initio. (a) 8 T. R. 411. 1838. FERGUSSON บ. NORMAN. TINDAL C. J. It appears to me in this case, that all the contracts which were entered into between the parties who pledged goods and the pawnbroker, in which the requisites prescribed by the sixth section of the Pawnbrokers' Act were not observed, are to be held void. Upon looking at that section, the requisites that are made necessary are those that are to precede the contract, and to accompany and make it out: they are not, as has been contended, collateral to the contract itself. A distinction may easily be drawn as to those duties imposed on the pawnbroker which are entirely collateral to the individual contract; and it would be too much to say, because he had not observed the enactment of the statute in such matters, that therefore the contract made by him should be void. Suppose an instance in which his name was required to be put up over the door, and some mistake had been made. A penalty is given for not putting up the name; but it would not follow that contracts entered into by an individual whose name had been incorrectly spelled, would be therefore void. However, when we look at the present section, the case is extremely simple: it enacts, that every person who, after the commencement of this act, shall, by way of pawn or pledge, take from any person whatsoever goods or chattels of any kind soever, whereon shall be lent any sum exceeding 5s., shall forthwith, and before he shall make, advance, or lend any money on such pawn or pledge, enter the same in a book in a particular manner. Then it goes on to describe other duties to be performed; some of which are to inquire the place of abode of the party who brings the goods, whether he be a lodger or housekeeper, and to put a certain mark according to the fact, H. or L., on entering the loan. And it goes on to direct that the pawnbroker shall, at the time of taking any pawn or pledge, give a duplicate in the manner there |