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and to state what penalties the defendant had forfeited, and judgment was to be entered for the plaintiff in such an amount as the Court should direct, not exceeding the amount of one penalty, with costs of suit. If decided in the negative, judgment of nolle prosequi, with costs of defence, was to be entered up for the defendant.

During the argument the Court having said, that it was very important to ascertain whether any person derived a revenue from the performances, the following words were added to the case by consent: "No profit was made, the expenses exceeding the receipts. The money received by the sale of tickets went towards the payment of the choir and the rent of the hall."

Denman (Rochfort Clarke with him), for the plaintiff.-Two questions arise: 1, Is this a 66 public entertainment or amusement" within the statute (2)? 2, Is the defendant protected by registration? The first question is chiefly one of fact, and a jury, looking at the addresses delivered and the general character of the proceedings, would say that the visitors resorted there for entertainment. There is nothing in Sir J. Bowring's address and the anecdotes there told to shew that "religious worship" was intended, nor in the music which the visitors went to hear as at a concert, not to sing themselves. The proposal that the congregation should sing hymns was never carried out, and it would have been inconsistent with the object of the promoters, which was not religious worship.

Secondly, the defendant is not protected by mere registration under 18 & 19 Vict. c. 81, but must shew that this was a place of meeting for "religious worship." The legislature could not mean that persons by registration might evade the 21 Geo. 3. c. 49; see the old stat. 52 Geo. 3. c. 155. ss. 2, 3. and section 19. of the Toleration Act, 1 W. & M. c. 18. The name "recreative religionists" cannot make them what they

are not.

The Defendant (in person).-These proceedings were such as any earnest-minded and religious Christian might profitably attend. There was no debating, nothing comic, nothing for mere amusement. Stat. (2) The statute is quoted in the judgment, post, page 6.

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21 Geo. 3. c. 49. is generally considered obsolete, is not to be found in Chitty's Statutes or Russell on Crimes; nor have we been able to discover a record of a single case of prosecution under it. To incur the penalty we must both use the place for 'public entertainment or amusement," and admit for money. We did neither. Admission to the hall was free. Tickets for Mr. Spurgeon's services, for many of the Roman Catholic Churches in London, and other religious services, are sold for money. Our title, "Re-creative," means creating again, not "diverting." As secretary of a large institution I was advised by counsel that a place used for such lectures as are delivered at the Royal Institution, if the admission were on Sundays for money, would be contrary to this statute, and we intended these proceedings not to resemble such lectures, but to be legal.

[BYLES, J.-What meaning do you give to "entertainment"?]

Comic songs, burlesque, or such a performance as the late Mr. Albert Smith's. 66 or" shews that The " amusement" explains and illustrates the meaning here of entertainment, which does not include instruction, such as a lecture by Professor Huxley on Anatomy.

[BYLES, J.-Webster's Dictionary says one meaning of "to entertain " is " to amuse or instruct by discourse." The entertainment of the senses is often used as an accessory to religion.]

Yes; e. g.,

the present Ritualists. [WILLES, J.-The Church in and after the twelfth century was obliged to have dramatic representations in order to interest the congregation (3).]

The legislature in 1781 did not intend to affect such proceedings as ours. The author of 21 Geo. 3. c. 49. was Bishop Porteus, who said, "it restrains no one from professing that mode of religion, and joining in that form of public worship, which his conscience best approves. It restrains no one from speaking, conversing, or writing, upon religious subjects. It imposes no other restraint than this, . . . . that no one shall either pay or be paid for talking blasphemy or profaneness in a public room on the Lord's Day. It takes away, in short, no

(3) Strutt's Sports and Pastimes, book 3, ch. 2.

other liberty, but the liberty of burlesquing Scripture, and making religion a public amusement and a public trade” (4).

As to registration, 1 W. & M. c. 18. required a certificate wherever Protestant dissenters I met for worship, in order to secure loyalty, to enable the civil power to attend and see if the congregation were good subjects. It exempted Protestant dissenters from those statutes, e. g., 23 Eliz. c. 1, 29 Eliz. c. 6, 3 Jac. 1. cc. 4, 5, which made absence from church and non-communion highly penal. The liberal scope of 18 & 19 Vict. c. 81. and the intention to include every creed without restriction are shewn by the words of section 2, "any other body or denomination of persons," and by the remarkable words of Schedule A, which include others besides Christians. Section 11. provides that the Registrar General's sealed certificate shall be evidence in judicial proceedings of the facts, and our certificate protects us against this prosecution so long as it exists-see section 6.

[BYLES, J.- - Could this certificate be cancelled? If, for instance, you use the hall for dancing? If it cannot, your argument that it protects you is weakened.]

We might be prosecuted at common law for such a flagrant violation, but here we are protected.

[BYLES, J.-Would the statute apply to Mohammedans impugning the Christian doctrines? WILLES, J.-Or to Mormons? If the Queen's Indian subjects, moved by a commercial spirit, were to establish the practice of reading the Koran, howling in concert and riding over bodies of prostrate worshippers, and so amusing the crowd, would that be within the statute?]

St. James, in his Epistle, chap. i. verse 27, defines "pure religion."

[BYLES, J.-Not religion, but opnoreía.] The plaintiff objects to the absence of prayer, but in Christian worship it is not

(4) Hodgson's Life of Bishop Porteus, vol. i. p. 82. See the entertaining debates in Cobbett's Parliamentary History, vol. xxii. pp. 262-290, whence it appears that the act was aimed at two kinds of assemblies: one a promenade for exercise and refreshment; the other, a theological debating society, "a school for Metaphysics, Ethics, PulpitOratory, Church History, and Canon Law."

necessary that prayer should be public or audible, e. g., the Quakers, and High Mass

Prayer is the Soul's sincere desire
Uttered or unexpressed.
James Montgomery.

"When thou prayest, enter into thy closet" -Matt. vi. 6. St. Paul's "Pray without ceasing"--1 Thess. v. 17-could not mean

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pray in public without ceasing." "Laborare est orare." There was prayer on each occasion. Many eminent persons came and made suggestions. Sir J. Bowring wrote his hymn for these occasions. Registration under 18 & 19 Vict. c. 81. does not strain that act so much as the holding our meetings in "a disorderly house" would strain the 21 Geo. 3. c. 49, which was aimed against brothels.

Denman replied." Profaneness" in 21 Geo. 3. c. 49. is used in the classical sense of "non-religious"-Richardson's Dictionary. This act was intended to put down all such meetings as would be thought wrong in those days, and these would certainly have been thought wrong.

[WILLES, J.-You must establish two points: first, is this "religious worship"? If it is, it is not within 21 Geo. 3. c. 49. If it is not religious worship, still, is it contrary to that act? What is "religion"? Is it not what a man honestly believes in and approves of and thinks it his duty to inculcate on others, whether with regard to this world or the next? A belief in any system of retribution by an overruling power? It must, I think, include the principle of gratitude to an active power who can confer blessings (5).]

The absence of prayer is very important.

[BYLES, J.-What is prayer? Barrow (6) says it is not only supplication, but adoration. If there was no prayer here, that may indicate a want of devotional feeling, which is not confined to this assembly.]

Section 12. of the 52 Geo. 3. c. 155,

(5) Andrews's Lat.-Eng. Dict. prefers the derivation of "religio," which presents "the careful pondering of Divine things" as the root of the meaning.

(6) Works, vol. I., Sermon 6., on the duty of prayer.

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On the 19th of November the judgment of the Court (Byles, J. and Willes, J.) was read by

BYLES, J.-This case was argued, at the Sitting of the Court after last Trinity Term, before my Brother Willes and myself. Its novelty and great and general importance induced us to take time for deliberation.

It is an action brought to recover the sum of 8001. as penalties incurred by the defendant under the act 21 Geo. 3. c. 49, for having opened a house of public entertainment or amusement on the Lord's-day, to which the public were admitted on payment of money. The case depends on the construction of the act, which is intituled "An Act for preventing certain abuses and profanations on the Lord's-day, called Sunday." The recital of the act is as follows: "Whereas certain houses, rooms, or places, within the cities of London and Westminster, or in the neighbourhood thereof, have of late frequently been opened for public entertainment or amusement upon the evening of the Lord's-day, commonly called Sunday; and at other houses, rooms, or places, within the said cities, or in the neighbourhood thereof, under pretence of inquiring into religious doctrines, and explaining texts of Holy Scripture, debates have frequently been held on the evening of the Lord's-day, concerning divers texts of Holy Scripture, by persons unlearned and incompetent to explain the same, to the corruption of good morals, and to the great encouragement of irreligion and profaneness." Then follows the enacting clause (section 1), upon which the question arises:

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That, from and after the passing of this present act, any house, room, or other place, which shall be opened or used for public entertainment or amusement, or for publicly

debating on any subject whatsoever, upon any part of the Lord's-day called Sunday, and to which persons shall be admitted by the payment of money, or by tickets sold for money, shall be deemed a disorderly house or place; and the keeper of such house, room or place shall forfeit the sum of 2001. for every day that such house, room, or place shall be opened or used as aforesaid on the Lord's day, to such person as will sue for the same, and be otherwise disorderly houses." The only other part punishable as the law directs in cases of of the act of parliament to which it is necessary to call attention is the proviso in section 8, "that nothing in this act contained shall be construed to extend to take away, alter, or abridge, any of the liberties or immunities to which the Protestant subjects of this kingdom are entitled by an act made in the 1 Will. & Mary (c. 18.), intituled An Act for exempting their Majesties' Protestant subjects, dissenting from the Church of England, from the penalties of certain laws.'"

The case states that a number of gentlemen, in December, 1866, formed an association calling itself an association for the development of religious feeling by the elevation and instruction of all persons who should either join the association or attend at the services hereafter described. The defendant was president of the association, and he duly registered a place called St. Martin's Hall as the place of meeting intended to be used for religious worship by the association, under the title. of "Recreative Religionists." This designation was explained at the bar to refer, not to recreation in its ordinary sense, but to the creation of a new form of religious worship, by which it was hoped to remedy the alleged indifference of the people at large to ordinary religious services.

The services in question at St. Martin's Hall were held on Sunday evenings, which hall for this purpose was registered as a place of religious worship. The services consisted of pieces of sacred music, such as the Stabat Mater, performed on the organ accompanied by other instruments and by a gratuitous choir; but there were some paid singers. An address was delivered always instructive, sometimes of a religious tendency, sometimes neutral rather

than religious, but never aggressively irreligious, and never profane. There seems to have been a desire to introduce the singing of hymns, and to this end certain hymns were printed and circulated among the audience, but they were never sung. Some of the hymns could scarcely be called devotional compositions, but among the hymns was to be found Addison's metrical paraphrase of the 19th Psalm. In most of them were expressed sentiments of adoration towards the Supreme Being, and in all of them exhortations to moral duty. There was no public prayer or address to the Deity, other than was contained in the musical compositions. There was no debating or discussion; nothing dramatic or comic, or tending to the corruption of morals, or to the encouragement of irreligion or profanity.

Admission to the body of the hall was gratuitous; but tickets were sold and money taken for admission to reserved seats. The object of the promoters of the association was not pecuniary gain: on the contrary, the services were carried on at a pecuniary loss to themselves, although attended by considerable numbers of the public.

Few litigants present themselves under circumstances which entitle them to greater respect. The plaintiff is honestly endeavouring to stop by this action what he deems a public desecration of the Lord'sday, and only asks judgment for a single penalty. The defendant is expending his time and money, as he conceives, for the public benefit. The plaintiff, however, contends that the registration of the place of meeting as a place for religious worship was a mere colourable attempt to evade the effect of the statute 21 Geo. 3. c. 49. But this is a question of fact, and we are by the terms of the special case to draw inferences of fact, and we think this imputation on the defendant is not well founded, but that the defendant honestly did intend to introduce religious worship, though not according to any established or usual form.

We have now to determine whether the services at St. Martin's Hall, so registered, constituted a disorderly house, within the true meaning of the statute 21 Geo. 3. c. 49. The precise question therefore is, whether

the services above described constituted a public "entertainment or amusement" within the meaning of the statute.

It is not easy, nor indeed necessary, to define the exact meaning of the word "entertainment" in this connexion; but perhaps the two words "entertainment or amusement" reflect light on each other. Some assistance may possibly be derived from the original act, 25 Geo. 2. c. 36. (7), which statute speaks of "public dancing, music, or other public entertainment of the like kind," as constituting a disorderly house. It is not, however, necessary to express any opinion on many questions which might arise, e. g., whether meetings for mere instruction be within the statute; whether, for instance, a lecture on the higher branches of the pure mathematics would be an 66 entertainment" " within the statute. But whatever the true definition of the expression "entertainment or amusement" may be, we think it quite clear that meetings for religious worship are not within the act. It is not essential to such protected religious worship that it should be in accordance with the religion of the State, or even with the general religion of the nation. The worship of Jews, who deny the Christian revelation entirely, and of Mohammedans, who supersede it (some millions of whom are now our fellow subjects), would not be within the statute, if any of their festivals happened to fall on the Lord's-day, and persons were admitted partly gratuitously and partly by tickets, as in the case under consideration. Indeed, Jews are now placed on the footing of Protestant Dissenters.

The plaintiff may consider the worship to be of a dangerous tendency, or the religious element introduced to be so scanty and shadowy as to be altogether inadequate to meet the urgent necessities or satisfy the religious instincts of human nature; but these are inquiries into which we, it is plain, cannot enter.

Some stress was laid on the fact that the words sung were often in the Latin language only, and that the principal attraction was the music. But, if this objection prevailed, it is easy to see that it would

(7) Section 2.

have a more extensive application than the plaintiff contemplated.

The discourses delivered were intended to be instructive. It is true that occasionally a diverting incident or passage was introduced. But it must be remembered that the greatest preachers of the English Church, such as Bishop Latimer or Dr. South, have not hesitated to do the same, when the subject required it, or perhaps when it became necessary to sustain attention.

It is sufficient to say that in our opinion a place duly and honestly registered as a place of public worship, in which no music but sacred music is performed or sung, where nothing dramatic is introduced, where the discourses delivered are intended to be instructive, and contain nothing hostile to religion, where the objects of the promoters may be either to advance their own views of religion, or as they allege, "to make science the handmaid of religion," is not "used for public entertainment or amusement" within the statute.

Our opinion being that the case does not fall within the enacting clause, it is only necessary to observe on the proviso in section 8, that the fact of payment being made for the reserved seats, the doors being open, does not deprive the defendant of the protection of the Toleration Act. (See 1 W. & M. sess. 1. c. 18.)

We are duly sensible of the inestimable value and importance to the whole nation of the statutes passed to prevent the desecration of the Lord's-day, but we think we should unduly stretch a penal enactment if we applied the statute of 21 Geo. 3. c. 49. to the case now under consideration.

Judgment for defendant.

Attorneys-Baxter, Rose, Norton & Co., for plaintiff; Shaen & Roscoe, for defendant.

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To constitute larceny, there must be a taking of the property against the will of the owner. But the cashier of a bank has authority, arising from the nature of his employment, to pay the money of the bank to persons presenting genuine orders, and to judge of their genuineness. Therefore, a cashier who, deceived by a forged order purporting to be drawn by a customer, pays money to the payee, who presents it knowing it to be forged, thereby parts with the property in the money of the bank to the payee so as to bind his employer; and the payee, is therefore not guilty of larceny, but of obtaining money by false pretences. And a conviction of a person who received the money, with a knowledge of the fraud, from the payee who had obtained it in the manner above mentioned, for receiving the money knowing it to have been stolen, was held bad.

This case was reserved by the Common Serjeant:

The prisoner was tried at the August Session of the Central Criminal Court, on an indictment charging him, in the first count, with stealing money to the amount of 1007., the property of Henry Allen; in the second count with receiving the same knowing it to have been stolen; and in two other counts the ownership of the money was laid in the London and Westminster Bank.

It appeared in evidence that the prosecutor, Henry Allen, had paid moneys, amounting to 9007., into the London and Westminster Bank, on a deposit account in his name, and on the 27th of April, 1868, that sum was standing to his credit at that bank. On that day the wife of Henry Allen presented at the bank a forged order, purporting to be the order of the said Henry Allen for payment of the deposit, and the cashier at the bank, believing the

* Coram Bovill, C.J., Channell, B., Byles, J., Blackburn, J. and Lush, J.

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