« PreviousContinue »
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.
EXCHEQUER COURT OF CANADA. AUDETTE, J. APRIL 10TH, 1913.
FELT GAS COMPRESSING COMPANY AND A. J. PARIS, JR. v. WILLARD O. FELT, R. S. WALKER, TRUSTEE; A. PARK, LUCINDA. J. BISNETT, AD. MINISTRATRIX OF C. L. BISNETT, DECEASED, R. L. BRACKIN AND J. B. DETWILER.
Patents for Invention—Jurisdiction of Erchequer Court in Cases not Falling within the Statutes—Rights of Parties Dependent upon Contract—Validity 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. G. Powell and Caldwell, for motion for judgment on objections in law. Dr. Lewis, K.C., contra.
AUDETTE, J. FEBRUARY 17th, 1913. THE KING v. CRUMB.
Public Land—Lease—Information to Cancel—Improvidence —Knowledge of Crown Officials of Litigation Respecting Property in Question.
In proceedings on behalf of the Crown to annul and cancel a certain lease of Ordnance and Admiralty lands, it appeared that, although there was information on their files respecting litigation at one time pending in the civil Courts between the defendant’s predecessor in title and other parties with respect to the property demised, the officials of the Department of the Interior issued the lease in question. It appeared, however, that at the time the lease was issued the Department was not aware of a judgment in one of the civil Courts, which decided adversely to the rights of the defendant’s predecessor in title.
Held, under all the circumstances, that the lease was issued through inadvertance and improvidently, and that the same should be cancelled.
2. The officers of the Crown should have satisfied themselves before issuing the lease that the litigation, of which there was knowledge in the Department, had first been disposed of in favour of the applicant.
Suayze, for the plaintiff.
AUDETTE, J. MARCH 10TH, 1913. THE KING v. A. O. AND C. N. FALARDEAU.
Erpropriation—Water Lots—Prospective Value—Remoteness at Date of Erpropriation.
The Crown had expropriated for the purposes of the National Transcontinental Railway a discarded lumber cove near the city of Quebec, with all the buildings and wharves erected thereon. In the days of wooden ships, and when the lumber trade was flourishing at its best in Quebec, the property in question was worth a great deal. After that time the property had very much depreciated in value, but the defendants relied upon the prospective capabilities of the property for docking purposes, when steamers in the St. Lawrence trade became too large to proceed up the river to the port of Montreal. Held, that such a rise of the property was too contingent and remote at the date of expropriation to be regarded as an element in the market value of the property,
Flynn, K.C., and Choplean, for plaintiff.
AUDETTE, J. MARCH 17TH, 1913.
CANADIAN RUBBER CO. OF MONTREAL, LTD. v. COLUMBUS RUBBER CO. OF MONTREAL, LTD.
Trade Mark—Infringement — Similarity of Mark—Injunction–Damages.
Plaintiff company was the duly registered owner of ageneral trade-mark consisting of an effigy of Jacques Cartier surrounded by the words, “The Canadian Rubber Company of Montreal, Limited.” The plaintiff, and its predecessor in title, had been for years large manufacturers of rubber footwear to which this mark was applied. It was established that so well-known was the mark in the trade that customers of merchants handling the plaintiff's goods in the province of Quebec would ask for them by the name of “Jacques Cartier.” the “Canadian,” or the “Sailor.” In June, 1912, the defend. ant company proceeded to manufacture and sell a certain class of rubber footwear with the effigy of a sailor closely resembling that of Jacques Cartier in the plaintiff's trade-mark, surrounded with the words, “ Columbus Ruber Company of Montreal, Limited,” in a scroll chiefly differing from the one used by the plaintiff in that it was rectangular in form while that of the plaintiff was round. Defendants' mark was not registered. Held, that there was such a similarity between the defendant’s mark and that of the plaintiff as to be calculated to
deceive the public into purchasing the defendant’s goods for those of the plaintiff, and that the defendant should be enjoined from placing on the market and selling rubber footwear and goods bearing the mark as above described. 2. That there should be a reference to the Registrar to ascertain what damages were sustained by the plaintiff by reason of the defendant’s interference with its business.
T. C. Casgrain, K.C., and Stairs, for the plaintiff.
AUDETTE, J. APRIL 2ND, 1913.
HARRISON V. THE KING.
Negligence—Public Work—Ice on Approach—Injury to the Person—Liability.
Suppliant sustained bodily injury by falling whilst walking over the footpath on one of the approaches to the Seigneur Street Bridge, over the Lachine Canal, in the city of Montreal. The place where he fell was under the care and control of the Dominion Government; and the superintendent of the canal and his assistants were charged with the duty of maintaining the footpath in question in good order. The accident happened at 11.30 o'clock of the night of the 6th of January, 1912, which date was a holiday. The footpath was in a slippery condition owing to ice, the weather at the time being very changeable. It was shewn by a witness, whose specific employment it was to spread ashes over this footpath for the purpose of preventing accidents to pedestrians, that at four o'clock on the afternoon of the day before the accident he had spread ashes on the spot where the suppliant fell; and that, although it was a holiday, he visited the foot. path at two o'clock on the afternoon of the accident and found that the ashes were still there and that no more were required for safety.
Held, upon the facts, that no negligence was attributable to the superintendent of the canal or his assistants, and that the suppliant was not entitled to recover.
Curran, for suppliant.