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REX v. AUSTIN AND OTHERS.

employed the child within the meaning of s. 47 of the Elementary Education Act, 1876. There is no employment within that section unless it results in gain to the father (Mather v. Lawrence, [1899] 1 Q. B. 1000; 63 J. P. 455). The justices have found as a fact that there was no gain.

Danckwerts, K.C. (Raymond Asquith with him), in support.-Section 9 of the Elementary Education Act, 1876, is the only section that allows any exception to the prohibition against the employment of children. This case does not come within that section. If the father employs the child at all in his business, he is to be deemed to have taken the child into his employment within the meaning of s. 47. There is a clear finding of fact that the boy worked for his father in the way of trade. The justices say that the father made no gain by it, but he must have done so. In Mather v. Lawrence, supra, the child was not employed in the way of trade. Section 47 does not say merely "for the purposes of gain," but

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by way of trade or for the purposes of gain." It does not matter that the child was only employed casually. The father by employing the child at all in any labour exercised by way of trade commits the offence.

ALVERSTONE, L.C.J.-We are clearly of opinion that we ought not to order the justices to state a case. If there was any

doubt about what the decision of the magistrates was, or if any further facts could have been stated, it would have been better to make the rule absolute, even if we might have come to the same conclusion on the argument of the case stated. But we have now got all the evidence, and as far as I can see they have dealt with this as a question of fact, and have in no way gone wrong in law. It is said that the word "employs" in s. 47 of the Elementary Education Act, 1876, means "allows his child to be occupied or to do some work or to give him some help," and that in such a case there may be evidence of the father employing within the meaning of the section. In my judgment that is not the meaning of the section. The meaning of the section is that the prohibition against employment was to apply to the case of a father taking his son into his employ, and employing him to a great extent in the same way as if he was a stranger. The unfortunate circumstances of the poor boy show the common-sense view the magistrates took. The doctor said, "Don't send the boy

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to school; let him do what he likes." That was a wise piece of advice. The father allows him to do what he likes and assist in making horseshoes, and I understand that the magistrates quite disbelieved the exaggerated evidence as to the way in which the father treated his son. They found that the child was allowed by the father to go into the workshop when he pleased, but whenever he was minded so to do he absented himself and frequently went into a neighbouring public park. If some court is going to hold that that is employment within s. 47 of the Elementary Education Act, 1876, they must hold it contrary to my distinct opinion. It would be a grievous thing if we were obliged to hold that the magistrates were wrong in law in holding that a father who on the advice of the doctor allowed his child to endeavour to assist him when he pleased by doing work of a light nature and who made no gain thereby did not employ the boy within the meaning of the section. There is no ground for ordering a case to be stated on the ground that the facts are not before us or that the magistrates went wrong in law.

RIDLEY, J.-I agree. If you take as facts paragraphs (6), (7), and (8) of the justices' affidavit there was no employment of the child and nothing to show that the father caused him to do any work. What the boy did was entirely at his own volition. It would be stretching the word "employs" in the section far beyond its proper meaning if we were to say that the permission that the father gave that the boy might so amuse himself was employment.

DARLING, J.-I am of the same opinion.
Rule discharged.

Solicitors for the defendant justices: Emmet & Co., for Claude Leatham & Co., Wakefield.

Solicitors for the applicant: Clements, Williams & Co., for Trevor C. Edwards, Wakefield.

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Case stated by a metropolitan police magistrate sitting at Clerkenwell Police Court on an information laid on May 3, 1906, by the appellant against the respondents, whereby they were charged that on the 25th April, 1906, they did keep a certain place, to wit, the temporary reading room of the Furnishing Trades' Exhibition holden at the Agricultural Hall, Islington, for the purpose of exercising therein a certain lottery, to wit, a lottery entitled "Draw in aid of the Furniture Trades' Provident and Benevolent Association," contrary to s. 2 of the statute 42 Geo. 3, c. 119.

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I, after hearing evidence, dismissed the information for the reason hereinafter set forth. The following facts were proved on the hearing of the information: The appellant visited the Royal Agricultural Hall about 10 a.m. on April 25, 1906. An exhibition called "the Furnishing Trades' Exhibition was then being held at the hall. The appellant purchased at a stall managed by the respondent, Charles Dunk, a ticket, a copy of which is set forth below, paying 18. for the ticket. The ticket was torn for the appellant from a book of tickets and counterfoils. The appellant subsequently on the same day saw the respondents and cautioned

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71 J. P. 30.

them not to allow the drawing in respect of which the said ticket was sold to take place. The respondents said they would jointly take the responsibility for the drawing taking place. The appellant again visited the Royal Agricultural Hall at 9 p.m. the same evening, and in a temporarily erected building, called a reading and writing room," some 40 or 50 people were assembled, including the respondent Charles Dunk. The counterfoils of the tickets sold in connection with the drawing were placed together, mixed up, and the first six tickets drawn determined the six winners of the prizes specified on the ticket, of which a copy appears below. It was further proved before me that the exhibition was for the trade and not for the general public, admission to it being by ticket only; that an order for 25 books containing 25 tickets each for the drawing was given by the respondent Harold Hyam Benjamin, who was the manager of the exhibition, and that the drawing was for the Furniture Trades' Provident and Benevolent Association, in which the respondents were interested from benevolent motives; that all moneys received for the sale of such tickets were intended for and were handed over to the association, and that the articles named on the ticket set out below were given for the respondents did not make, and never inbenefit of the association; and that the tended to make, any profit out of the draw, and that in whatever they did they acted entirely out of charitable motives. It was contended upon the above facts before me, on two grounds, that no offence had been committed by the respondents against s. 2 of the Gaming Act, 1802 (42 George 3, c. 119); first, that the draw was not a lottery within the meaning of the Act, and, secondly, that the reading and writing room in the Royal Agricultural Hall was not "kept for the purpose of exercising therein a lottery" within the true meaning of such Act, and the case of R. v. Davies, [1897] 2 Q. B. 199, was cited in support of that contention. I was of opinion that the draw amounted to a lottery, but I was doubtful whether the mere user of the reading room for a few minutes on one occasion for the purpose of the draw was "keeping an office or place for the purpose of exercising therein a lottery" within the meaning of s. 2 of the Gaming Act, 1802, and dismissed the summons. The question for the opinion of the Court is whether in the circumstances the respondents kept an office or place for an unauthorised lottery contrary to s. 2 of the

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Parliament

J. BROS.

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The Gaming Act, 1802, s. 2, provides: "No person or persons whatsoever shall publicly or privately keep any office or place to exercise, keep open, show, expose to be played, drawn, or thrown at or in, either by dice, lots, cards, balls, or by numbers or figures, or by any other way, contrivance, or device whatsoever, any game or lottery called a little goe, or any other lottery whatsoever not authorised by and every person so offending shall be deemed a rogue and vagabond and shall be punishable as such rogue and vagabond accordingly." By the Vagrancy Act, 1824 (5 Geo. 4, c. 83) s. 1, all provisions theretofore made relative to rogues and vagabonds were repealed, but s. 21 provides "that wherever by any Act or Acts of Parliament now in force it is directed that any person shall be punished

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on or attempted to be carried on." There is no analogy between the statutes 42 Geo. 3, c. 119, 4 Geo. 4, c. 60, and the Betting Act, 1853 (16 & 17 Vict. c. 119): per Lord HALSBURY, L.C., in Powell v. Kempton Park, [1899] A. C. 143, at p. 165; 63 J. P. 260, at p. 262.

Avory, K.C. (J. B. Matthews with him), for the respondents.-For the purpose of s. 2 of 42 Geo. 3, c. 119, the mere user of a place on a particular occasion does not amount to keeping a place. This principle has been recognised in the case of disorderly houses (Shutt v. Lewis Lewis (1804), 5 Esp. 128; Marks v. Benjamin (1839), 3 J. P. 405; 4 J. P. 44; 5 M. & W. 565). There must be something like habitual keeping, and mere incidental user will not suffice. On that principle the court acted in R. v. Davies, supra.

Danckwerts, K.C., in reply.-In the case of a disorderly house there must be a series of acts before the house can become dis

orderly, and the public must be admitted. Under the Lottery Acts the use of a place once is sufficient, and it makes no difference whether the thing is done publicly or privately. Gregory v. Tuffs (1833), 6 C. & P. 271, shows that Shutt v. Lewis, supra, was decided on the ground that the room was a private room of the defendant. Section 1 of the Act 10 Will. 3, c. 23, declares all lotteries to be common and public nuisances. In R. v. Crawshaw (1860), 25 J. P. 37; Bell's C. C. 303, there was only a single lottery, and it was held that the jury were justified in finding that the defendant had kept a lottery. [DARLING, J.: Which statute uses the words "6 as a rogue and vagabond keep a for any offence specified in such Act or Acts, and not herein before provided for by this Act, in every such case, whether such person shall or shall not have committed any offence against this Act, every such person shall be punished under the provisions, powers, and directions of this Act."

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Danckwerts, K.C. (A. H. Bodkin with him), for the appellant.-The wording of s. 2 of the statute 42 Geo. 3, c. 119, shows that it was intended to make it an offence to draw a lottery even once. The word "lottery" is used in the singular. The Lotteries Act, 1823 (4 Geo. 4, c. 60), s. 60, extends the meaning of the word " place' so as to include "any place in or out of an inclosed building or premises, whether upon land or water, where such illegal practices or any thing relating thereto shall be carried

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lottery?] Section 2 of the Act 10 Will. 3, c. 23. [DARLING, J.: The Act 42 Geo. 3, c. 119, says "keep a place."] Keeping the place for one lottery is enough. Lotteries are also declared common and public nuisances by s. 1 of 42 Geo. 3, c. 119, and the preamble to s. 60 of 4 Geo. 4, c. 60, shows that a single lottery creates the offence. In Hardwick v. Lane, [1904] 1 K. B. 205; 68 J. P. 94, a single sweepstake was held to be an offence.

RIDLEY, J.-We are both of opinion that the magistrate's opinion was right on the point argued. The facts appear to be that the respondents were summoned on an information stating that they kept a certain place for the purpose of exercising therein a certain lottery. The facts were these: That the appellant had purchased at a stall managed by the respondent Dunk a ticket

MARTIN V. BENJAMIN AND DUNK. torn for the appellant from a book of tickets and counterfoils, and on the same evening in a temporary reading-room in the Royal Agricultural Hall the counterfoils of the tickets sold in connection with the drawing were placed together and mixed up, and the first six tickets drawn determined the winners of the prizes specified on the ticket. The point argued is whether or no, when it was shown that on that evening the tickets were drawn in the temporary reading-room of the exhibition, that amounted to a keeping of the place within s. 2 of 42 Geo. 3, c. 119. Whether it was an office or place is not the question here. The question is whether it was kept. At first I thought that there was a good deal of reason in the observation that if this is not a keeping on this one occasion on which it was done, a man might shift from one house to another and so evade the Act. But that is not really the point of the case. If it were merely the keeping or drawing of a lottery, if the offence were merely that, it could be proceeded against under s. 41 of 4 Geo. 4, c. 60, or s. 2 of 10 Will. 3, c. 23. Take the latter statute, under which R. v. Crawshaw, supra, was decided. There, by s. 2, no person or persons whatsoever shall publicly or privately exercise keep open show or expose to be played at drawn at or thrown at or shall draw play or throw at any such lottery or any other lottery either by dice lots cards balls or any other numbers or figures or any other way whatsoever." But that Act of Parliament is directed against the keeping of a lottery, not the keeping of a place where a lottery is to be drawn. Along with the word "keep" are other words which show that the Act is directed against a particular lottery, and no doubt Mr. Danckwerts is right in saying that by Act of Parliament all lotteries have been made a public nuisance. The Act 4 Geo. 4, c. 60, seems to be directed in the same way against selling tickets in a lottery. The Act 10 Will. 3, c. 23, is aimed against a particular lottery, and 4 Geo. 4, c. 60, is an extension of the same principle. In 42 Geo. 3, c. 119, s. 2, the words are different, namely: "No person shall

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keep any office or place to exercise, keep open, show, or expose to be played

any game or lottery," etc. Therefore that deals not with the keeping of a lottery but with the keeping of an office or place to exercise a lottery. But Mr. Danckwerts says that this case is to be distinguished from those cited by Mr. Avory on the meaning of "keep," because the Acts under consideration in those cases only had

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reference to a series of acts, and only a series of acts was made criminal, whereas here a single lottery is the gist of the offence. I do not find myself able to follow him in that reasoning. I think it is true that one lottery is a public nuisance, whereas in the other cases only a series of acts is an offence. But the essence of the offence against this section is the keeping of an office for the purpose of exposing a lottery. I do not think you keep a place for the purpose of exposing a lottery if you have only one lottery. It must be shown that the place was kept for that purpose. You do not keep the place for the purpose of showing a lottery unless more than one act be shown, and unless there is something habitual about it. I do not see how the cases quoted by Mr. Avory can be distinguished from the present. It does depend on the habit or custom, and on that which is being done by the person proceeded against. In Shutt v. Lewis, supra, which was an action to recover a penalty under 25 Geo. 2, c. 36, s. 2, for keeping a place for public dancing without a licence, it was decided that what the defendant had done was not within that Act on two grounds: (1) That the dancing was not public, and (2) that as Lord ELLENBOROUGH said, "this appeared to be a mere temporary appropriation of the room to that mode of entertainment for eight days during which it was hired, and which the persons were keeping as a festival." I think it is true that it was only a private entertainment, but Lord ELLENBOROUGH also meant to say that it was not a usual keeping, and so, therefore, not within the Act. Marks v. Benjamin, supra, which was decided on the same section, also seems to be strongly in point. It was said there by PARKE, B., although there had to be a rule for a new trial, that "in the first place the house, or room, must be kept with the defendant's knowledge; secondly, it must be kept for the purpose prohibited by the statute; there must be something like a habitual keeping of it, which, however, need not be at stated intervals; thirdly, it must be public." That last question does not seem to arise in this case because the statute says "publicly or privately." But there must be something like a habitual keeping. In this case there surely was not a habitual keeping. I think, therefore, that what the magistrate decided was right. With regard to Powell v. Kempton Park, supra, I think that what Lord HALSBURY said has not reference to keeping and using, but has reference to the word place." The point

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MARTIN V. BENJAMIN AND DUNK. he was discussing was whether the inclosure there in question was a place within the meaning of the Betting Act, 1853, and he expressed dissent from the view that there is any analogy between the statutes 42 Geo. 3, c. 119, 4 Geo. 4, c. 60, and the Betting Act, 1853, and he says that a careful consideration of those statutes would lead to an opposite conclusion, and he draws attention to 59 Geo. 3, c. 65, where, by s. 57, the meaning of the word "place" in the Lottery Acts is given to save any doubt upon the point if such could have arisen. I do not think that his observations have any application to the point which now arises, which is not the meaning of the word "place," but the meaning of the word "keep." I do not think that the one occasion on which this was done amounts to a keeping of the place. If the proceedings had been for keeping a lottery the decision of the court might have been different. If the proceedings had been not for keeping a place to exercise a lottery but for exercising or keeping open a lottery under s. 2 of 10 Will. 3, c. 23, I should not think that there was any defence, but as the point has not been argued I do not express any opinion on it.

DARLING, J.-I am of the same opinion. The respondents were charged under the statute 42 Geo. 3, c. 119, s. 2, and in the judgment that I give I do not intend to say that they might not possibly have been convicted under some other statute such as 4 Geo. 4, c. 60, or 10 Will. 3, c. 23, which have been referred to, but we must consider whether they were properly charged under this particular section of 42 Geo. 3, c. 119. The operative words are these: No person shall publicly or privately keep any place to exercise, keep open, or expose to be played or drawn any lottery." Those are not the words under which people might be convicted under 4 Geo. 4, c. 60, s. 41, for selling tickets in a lottery not authorised by the statute, but they are aimed at the keeping of an office or place, and therefore I think that the cases to which Mr. Avory drew our attention which show what the law has held to be the keeping of a house for other purposes than gaming are to the point, and when we want to find out whether they kept this place we must have regard to what was said by the judges who decided those cases. It seems to me also that you must bear in mind that lotteries when the earlier Acts were passed were objectionable, not so much on moral grounds, as because they interfered with the monopoly of the State in

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just the same way as smuggling was condemned and punished for the very same reason. No doubt later the opinion of the legislature has changed, and I think the later Acts show that lotteries are condemned on moral grounds, and I daresay smuggling I would also be condemned on the same grounds now, not only for defrauding the revenue, but also because the constant struggles between smugglers and customhouse officers, however picturesque, and however much literature may be indebted to them, are not desirable from purely moral considerations. I felt some difficulty, because, if Mr. Avory were right, it would be possible that a man might have a good answer under this statute if he went into a long street and kept a lottery once in each house all the way down the street. But I think that a good reply to that would be this, that the holding of a lottery, i.e., making the practice of holding a lottery in a series of houses one after the other would be such a continuous act as would amount to the keeping of a house or place for the purpose of a lottery. It would not be the keeping of the same house or place, but it might well be held that if you made a practice of holding a lottery in one house one day and in another the next and so on, you might be convicted of keeping a house because of the continuity of the act you are doing. The reason why this is not the keeping of a place is because it is an isolated act. In another case, Marks v. Benjamin, supra, Lord ABINGER, C.B., says it was the mere incidental use of a house. Those excuses could not be made in the case I have put, and I am satisfied with the answer I have given, though it may not satisfy some other judge.

Appeal dismissed.

Solicitors for the appellant: Wontner & Sons.

Solicitor for the respondents: Arthur J. Benjamin.

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