fore, or upon the expiration of the said one year from the time of pawning the same, give notice in writing or in the presence of one witness, to the pawnbroker, or leave the same at his usual place of abode, not to sell the same, at the end of the said first year, then, and in every such case, such goods shall not be sold or disposed of by the pawnbroker until after the expiration of three calendar months, to be computed from the expiration of the said year, during which said term of three calendar months, the owner of the said goods shall have liberty to redeem the same upon the terms stipulated in the act." In this case, however, no such notice had been given, but the year and the day were suffered to expire, and, therefore, the plaintiff had forfeited all title to the goods. No meaning could be given to the words "shall be deemed forfeited," other than that now contended for, unless they could be in any way controuled by the 19th section; but as the plaintiff had not brought himself within the protection there given, the 17th section must be considered as working a forfeiture; for the moment the year and the day expired, all right or interest in the owner of the goods was gone, and the pawnbroker had a right to dispose of them in the manner provided by the act, there being no other mode provided, of indemnifying him for any expences he might have incurred. It had always been understood in the trade and business of a pawnbroker, that this was the meaning of the statute. There was no meaning in language, unless the words of the 17th section were to have this construction, and therefore the defendant was entitled to enter a nonsuit.

ABBOTT, C. J.-I am of opinion, that we cannot give to the word "forfeited" the effect contended for in argument, and for this reason,-forfeiture, imports that the party forfeiting has lost the entire absolute right to the

1822.

WALTER

V.

SMITH.

1822.

WALTER

v.

SMITH.

property; whereas it is manifest, that after the period which the law has fixed by this statute, namely, a year and a day, though the goods are declared to be forfeited, and may be sold, yet the whole property in the goods is not gone from the original owner. If that were so, the sale would be entirely for the benefit of the pawnbroker, but that evidently was not the intention of the legislature. The object of the legislature in giving the pawnbroker a power of sale, is to enable him to reimburse himself for the money lent, and for the interest which has accrued; but at the same time the statute gives the original owner an opportunity of redeeming his property before the sale takes place. Looking to the provisions of the act of parliament, it is impossible to put that sense upon the word "forfeited," which is contended for. It is quite unnecessary to do so. The act may stand well enough, and answer all the purposes of justice without it. If at the end of the year and the day, the pledge be not redeemed, the pawnbroker may take measures for putting up the property for sale; but if at any time before the sale has taken place, the owner tenders the principal and interest of the money lent, and all the expences incurred, the pawnbroker may, with very great justice, restore the goods. He sustains no injury, and is just in the same situation in which he would be if the goods were actually sold; because, by the 20th section, the overplus, if any, after deducting the principal, interest, and expences, must be paid on demand to the owner, at any time within three years after such sale; whereas a contrary construction would impose the most serious injury on the owner of the goods. It appears to me, therefore, that the most just and reasonable construction we can put upon this statute is to say, that the right to the goods is not absolutely forfeited by the 17th section, notwithstanding the want of notice under the 19th section.

BAYLEY, J.-I am of the same opinion. I do not think that the construction we are now putting upon this statute can make any difference to the pawnbroker, because the power of sale is only given for the purpose of reimbursing him, and paying whatever interest is due at the time of sale. The pawnbroker, by the sale, gets his principal and interest, and if the party pledging, before any sale takes place, reimburses the pawnbroker for every expence he has incurred in the progress towards making the sale, it seems to me, that he has complied with every thing which, according to the act of parliament, ought to be done. The words of the 17th section "shall be deemed forfeited, and may be sold." I do not think that means so forfeited as to become the absolute property of the pawnbroker, but only so far as that the pawnbroker may take steps towards proceeding to sell, and if the original proprietor tenders every thing which the pawnbroker can demand or receive before the sale takes place, he has the power of redemption.

are,

HOLROYD, J.-I am of the same opinion. I think, that by the 17th section, the pawn is not to be considered forfeited to all intents and purposes, if not redeemed within the year and day; but only to enable the pawnbroker to sell the pledge for the purpose of raising the principal money, interest, and warehouse room, due thereon. The profit which the pawnbroker is entitled to take, is so much, according to the amount of the sum lent upon the pledge, from, and during the time the property remains in pawn. Therefore, I apprehend, that so long as the pledge remains undisposed of, the original owner has the power of redeeming it, because the right to sell is only for the purpose of enabling the pawnbroker to obtain his profit upon the pawn. The object of the sale is not for the benefit of the pawnbroker merely, be

1822.

WALTER

v.

SMITH.

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WALTER

v. SMITH.

cause he can only take to himself the principal, interest, and other incidental expences, returning to the owner the surplus after sale. The plaintiff in this case tendered the money lent, and the interest, and, I think, he had a right to redeem his property upon paying the principal, profit, and expences incurred. If the pawn were absolutely forfeited by the 17th section, the other provisions of the statute would be absolutely useless, and such advantages would be given to the pawnbroker as could never have been contemplated by the legislature. I am clearly of opinion, that if the pawner tenders the principal, interest, and expences, at any time before sale, he is entitled to redeem his property, and that it is not forfeited by force of the 17th section, if not redeemed within the time there stipulated.

BEST, J.-This statute having been passed for the purpose principally of protecting the labouring classes of the community against the improper practices of pawnbrokers, it is fit we should put such a construction upon it as shall do no injustice to the pawnbroker, but at the same time, shall give a protection to those whose misfortunes compel them to resort to this mode of relieving their distresses. The difficulty in this case has arisen upon the construction of the word "forfeited," which, generally speaking, has a different meaning from that obviously given to it by this statute. The word "forfeited," in its ordinary sense, means putting an end to all right of property in the person to whom it originally belonged, and to transfer it to somebody else. The legislature could not have meant to convey that sense by the word here used. It would have been most unjust so to declare; but if that had been their intention, it would have been unnecessary to say, that after the expiration of twelve months the pawnbroker might sell, for, if the goods were completely forfeited to all intents and purposes, the right of sale and

disposal would vest as a matter of course in the pawnbroker; but that certainly was not the intention of the legislature, for they have only said, that the goods shall be deemed forfeited, and "may be sold" at the expiration of one whole year. These latter words would be unnecessary if the word "forfeited" were to have the ordinary construction which belongs to it. The words

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may be sold," clearly mean "may be sold for the benefit of the pawner," who is to receive the surplus after the pawnbroker has satisfied his demand for money lent, and the high rate of interest due upon the property whilst it remained in pledge. It would be absurd to say, that the property becomes absolutely forfeited, if not redeemed within the time specified by the 17th section. It can be no benefit to the pawnbroker to sell so long as he gets all his money back, and his legitimate profits; but to the pawner it may be a matter of great importance to have his property restored, by putting the pawnbroker in as good a situation as he possibly could be, with reference to this act of parliament. It is said that the pawnbroker is put to certain expences, and that there is no other mode of indemnifying him except by the sale of the goods pledged. Whatever expences he has fairly and legitimately incurred, he is entitled to receive. It would be unnecessary that this act should provide for that, because every broker, of whatsoever denomination, has his lien for any expences he has incurred, with reference to the goods of another in his possession. But in cases of this description it would be very difficult to apportion the expence on each minute article contained in a pawnbroker's catalogue of sale. There is no coin in the realm which would be sufficiently small for a tender in many instances, to cover the expence incurred by the pawnbroker. That question, however, does not arise in this case. I am of opinion that this verdict ought to stand.

Rule refused.

1822.

WALTER

v.

SMITH.