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injuries given and received in prize fights are injurious to the public, both because it is against the public interest that the lives and health of the combatants should be endangered by blows, and because prize fights are disorderly exhibitions and mischievous on many obvious grounds." Another Judge (Cave, J., p. 68), said: "The true view is, I think, that a blow struck in anger, or which is likely or is intended to do corporal hurt, is an assault, but that a blow struck in sport and not likely or intended to cause bodily harm is not an assault." Russell in his comprehensive work on Crimes, «ays (7th ed., p. 785): "Prize fighting," etc. He notes that there are to be excepted sparring matches with proper gloves and fairly conducted.

The evidence in this case gives some indication of what is considered "sparring," for the witnesses speak of the opening of this contest as more like "sparring" or feinting than boxing, and the Century Dictionary defines the verb, "spar" as meaning "to make the motions of attack and defence with the arms and closed fists; use the hands as if in boxing either with or without boxing gloves."

It is stated in the English Encyclopaedia of Law (vol. 2, p. 385), "That the line between unlawful and lawful contests of this kind is fine."

You will probably have gathered from what I have said that the English law on this point is to be ascertained from an examination of the cases, there being no statutory definitions. That was the state of our law when the statute was passed in 18S1 defining prize fighting and fixing penalties in respect of it. The purpose of the definition was of course to make definite what was indefinite, which is another way of saying "to define." By the same Act provisions were made for preventing a contemplated prize fight. It seems apparent therefore, that it must have been intended to render it possible to determine whether a proposed contest was to be a prize fight without the necessity of referring to the actual conduct of it.

The difficulty in construing the definition appears to be in the words "encounter or fight." I am of opinion that they do not mean "either an encounter or a fight," but rather "an encounter of the nature of a fight, or that could be designated as a fight." *I take it that the word fight is here used with its ordinary meaning, which is hard to define in simpler terms. You probably understand it quite as well as I do or as I could explain it. It suggests to me a contest or struggle in which one strives to overcome or conquer the other. It is not an uncommon use of the word to speak of a fight between two boys to see which will be ahead of the other in his class. But in the present case, the only fight to be considered is one with the fists or hands. It will include what was theretofore known as a prize fight between pugilists as also a fight arranged between persons who are not pugilists, but would not include boxing when it is carried on as an exemplification of what has been called the manly art of selfdefence, though it might, if the contest were typical of what might be designated as the brutal science of attack. It appears that if the purpose is an exhibition of sparring or boxing on its scientific side it is not within the definition and is unobjectionable, whereas if it is a contest in which one strives to conquer the other by blows and has the other accompaniments it is a prize fight within the definition, and I am of opinion that under our definition there is nothing to warrant the conclusion that the contest must be of such duration as to shew that the intention is to exhaust or wear out one or both of the combatants. Of course every prize fight would be an exhibition of the science of boxing if between competent persons, but the exhibition feature would, as far as the contestants were concerned, be only an incident— the result of the contest being the important thing.

It is necessary, then, to apply the distinction to the facts of this case.

We find that the accused and the deceased met by virtue of an arrangement previously made for them for a contest with their fists or hands, for the fact that gloves were worn as the cases point out, does not prevent it from being a contest with the fists or hands.

The question then is, was it an "encounter or fight," as I have explained that term?

It is suggested that it was not because a part of the arrangement was that it should be for ten rounds only with no decision at the termination. The affair was advertifed as "Boxing, Burns' Arena, Calgary, Saturday, May 24; Second round of the Elimination Series for the World's Heavyweight Championship, Luther McCarty, the World's Heavyweight Champion, vs. Arthur Pelkey, of Calgafy, Claimant of the World's Championship; 10 rounds," indicating that the world's championship was at stake. One of the contestants was described as the world's heavyweight champion, and the fair inference to be drawn from the notice is that the winner would carry the title. It was so well advertised that there were 3,000 people present and $8,400 was paid in admissions. The ring was prepared in the same manner and in other respects the contest was conducted, as far as it went, in the same way as many other contests in which the deceased had taken part with some possible slight modifications.

Except for the number of rounds, the matter of decisions, and the weight of the gloves, the evidence seems to indicate that the contest was to be conducted according to the same rules as the fight between Johnson,and Jeffries, which is stated to have been a prize fight and held in the only one of the United States which then permitted prize fights, and in which, one of the questions and answers suggests, there was much brutality. The manager of the deceased seemed to consider that the only difference between such a contest as this and a prize fight was that there was no prize or money dependent u]x>n the outcome of this. This of course is unimportant under our law. Mr. Smith, the referee, a recognized sporting authority, who states that he has acted as referee at more than 100 contests, says that he has been trying for 25 years to find out what the difference between a prize fight and a boxing match is.

They both appear to have in mind such a contest as took place here and there seems little room for doubt that they know prize fights. Their evidence is therefore important in this connection to enable you to determine whether there is any essential difference between this contest and a prize fight, for if there is not it is a prize fight.

You are entitled to consider the weight of the gloves to determine what the intention of the parties was, but if you are satisfied on the evidence that the intention was to fight as I have explained, the size or weight of the gloves bears no significance. The fact that it was for 10 rounds only without a decision is also to be considered by you in considering whether it was a mere scientific exhibition, but you must take this in conjunction with the advertisements and other facts. The advertisement suggests that one of them will carry away the title of champion. Now, how was that to be accomplished on the part of the one who did not have it except by defeating the one who held it? The evidence shews that when the deceased fell the referee counted 10 and then indicated that his opponent had become the winner by virtue of a rule which provided for just such a consequence.

It is suggested that a man would not become exhausted in 10 rounds and that therefore one of the elements necessary to make this a prize fight did not exist. As I have already indicated, this is not a necessary element and moreover it is for you to consider whether the fact that one of the contestants could win from the other, only by knocking him out, as the witnesses have phrased it, and that, too, within 10 rounds, might not itself conduce to greater severity and thus greater danger, than if the contest could be of longer duration, or if there could be a decision by the referee.

There are other facts for you to consider, such as that the contestants were professional pugilists, that the contest was a public one, arranged apparently solely for business purposes and such things, also that one of the witnesses states that the contest had not yet become interesting or exciting, and that another states that in such contests he has seen men knocked out. All of the facts are to be considered both for and against. It is suggested that amateur competitions are conducted under the same rules and are as likely to result in injuries. There is this distinction, however, that school or Y. M. C. A. competitions or sports of such a character are usually open to all competitors and are therefore not contests previously arranged for between two persons and thus do not come within the definition. As indicated also by what I have read you from the cases and text-books, the danger of injury is not the only reason in law for holding prize fights illegal, there being other objectionable features which would be absent from most amateur affairs. It has been shewn that this affair was orderly and that a police officer was there in the discharge of his duty, which was to prevent it from becoming disorderly, but not to stop the contest, which it would have been his duty to prevent if it had been a prize fight. I think little weight should be attached to this fact, for, whether the police thought it illegal or not, does not affect the question of whether it was in fact illegal, and, in view of the only decisions in the Canadian Courts, it is not surprising that the police should have considered themselves not justified in interfering.

If you find that it was a prize fight, you will do so upon the interpretation of the law which I have given you, which, as I have shewn you, differs in some respects from former interpretations. The fact that many reputable citizens were present also is of no importance. Probably if they had not believed it legal many of them would not have been there, but their belief could in no way help to make it legal.

James Short, K.C., for the Crown.
A. L. Smith, for Pelkey.


Audette, J. April 10th, 1913.


Patents for InventionJurisdiction of Exchequer Court in Cases not Falling within the StatutesRights of Parties Dependent upon ContractValidity of Assignments.

(1) The Exchequer Court has no jurisdiction at common law in actions respecting patents of invention, and where any relief is sought in respect of such matters, the jurisdiction of the Court to grant the same must be found in some statute.

(2) The Court cannot entertain proceedings to obtain a declaration of the respective rights of parties inter se arising under assignments of a patent of invention; nor for a declaration that such assignments are invalid; and that the registration thereof should be vacated.

M. 0. Powell and Caldwell, for motion for judgment on objections in law.

Dr. Lewis, K.C., contra.

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