fulfilling the contract on the aforesaid date. In the event of my not fulfilling this contract the said sum is forfeited to M. M. Robinson to be used in defraying the expenses in connection with said exhibition. Providing I do not meet with an accident that would disable me so that I would not be fit to enter the ring."

The contract with Lang was practically the same, excepting that instead of a definite sum he was to receive twenty-five per cent. of the gate receipts for his services.

Upon the evidence, the important parts of which I have set out, and this contract, the learned police magistrate found these men guilty under section 105 of the Criminal Code of engaging as principals in a prize fight. With all deference I must differ from this conclusion.

Section 105 of the Criminal Code reads as follows:

"Every one is guilty of an offence and liable, on summary conviction, to imprisonment for a term not exceeding twelve months and not less than three months, with or without hard labour, who engages as a principal in a prize fight."

Did these men engage as principals in a prize fight as this conviction says they did? They began to do that which in the agreement they promised to do that is, give an exhibition of boxing-scientific boxing.

The young men, members of this athletic club, practice and engage in boxing as one of their sports. It is not unreasonable then that they should desire to see and were willing to pay these men for an exhibition of superior skill in boxing. Neither in these agreements nor in fact was there any reason or inducement for these appellants to desire or intend to injure, or be brutal, towards each other. A Court has no right to assume that under cover of giving a boxing exhibition they were going to turn the engagement into a prize fight. The terms of the agreement are all that can be acted on in this case because nothing was really done by these appellants. If the contest had

gone on and these men or either of them had fought or indulged in brutality, it would have been the duty of the police officers present to have stopped it and to arrest the offenders who could and should in that case have been punished under section 105 of the Code.

As this case stands the whole question is, is a "boxing exhibition" a "prize fight" within the meaning of the Code? For if a “boxing exhibition" is not a "prize fight," this conviction is bad. It is very difficult to draw up a definition of any such term that accurately and clearly defines what the draftsman has in mind.

The Minister of Justice who prepared our Criminal Code has given in sub-sec. 31 of section 2 thereof an interpretation of the words "prize fight." Sub-section 31 says a "prize fight" means an encounter or fight with fists or hands between two persons who have met for such purpose by previous arrangement made by or for them." This interpretation eliminates the word "prize," but otherwise it is not new.

In the common acceptance of the words "prize fight" it would mean a "fight" for a prize, but there need be no prize to constitute an offence under section 105 of the Code. There must be an "encounter or fight. We have still to ascertain

Most men will, without looking on at two per

what "encounter or fight" here means. hesitation, say that they could tell when sons having an engagement whether or not it was a "fight." The deputy chief of police, who says he has had many opportunities of witnessing in different parts of the world genuine "prize fights" and also "boxing exhibitions," says in his evidence. that there certainly is a distinction between a "prize fight" and a "boxing exhibition"-"that one is blows, the other is simply scientific boxing." He further says that in a "boxing exhibition" a man may be "knocked out" but it would be accidental, not intentional.

In all the cases a distinction has been made between a “boxing or sparring exhibition" and a "fight." In Rex v. Orton, 14

Cox Criminal Cases, page 226, the Judge upon a trial of an indictment against some persons for unlawfully assembling together for the purpose of a "prize fight," states the law as follows:

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In

"A mere exhibition of skill in sparring is not illegal. If, however, the parties meet intending to fight till one gives in from exhaustion or from injury received, it is a fight and a breach of the law, whether or not with gloves. This statement was approved on appeal. Boxing is, of course, rough sport, but so is hockey, lacrosse and football. a boxing exhibition one of the contestants may be knocked down, but that is not the intention. In a fight is is the intention of each to so injure the other that he can no longer continue the encounter. The former has been held to be legal, the latter under the common law illegal. So in football a man may be knocked out, or have a leg or arm broken, but that is not the purpose or intention of those engaging in the game.

Although an assault without intent often doing grievous bodily harm, frequently occurs in football, it does not make the game unlawful. If, however, in football, as anywhere else, a person assaults another with intent to do him grievous bodily harm it is an illegal act and punishable. So far then as the word "fight" in the definition of "prize fight" in sub-section 31 of section 2 of the Code is concerned it must be held to have the meaning which the English decisions have given it, namely, an encounter between two persons, each intending to so injure the other that he cannot or will not continue the contest.

Then does the word "encounter" with hands or fists enlarge the meaning of "prize fight." "Encounter" by the dictionary definitions and by common understanding applies to a great many acts and events of vastly different natures. In football men constantly tackle each other with hands, and this is an "encounter" with hands, but not such as is intended by that word in the Code. Dozens of "encounters" might be mentioned coming within the true definition of this word, but clearly not

within the meaning of it as used in the Code. "Encounter" in the definitions given also includes a "fight"; it is a synonym for "fight" and it is in that sense that it is used in the Code definition.

Now, at common law a "prize fight" was unlawful, and was defined as "an encounter with fists or hands with or without gloves for a number of rounds, limited or unlimited, for a purse, stake or prize, but in which it was intended to fight until one or the other of the combatants should give in from exhaustion or injury received." Here in the law as it stood. before in the statute or Code the words "encounter with fists or hands" are used when defining a "prize fight" as distinguished from a "boxing match."

Hardcastle, on the Construction of Statutes, at page 183, says: "The meaning of ordinary words will vary according to the subject or occasion on which they are used. The rule, however, is as laid down by Lord Coleridge in Barlow v. Teale, 15 Q.B.D. p. 405, who said:

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"If Acts of Parliament use form of words which have received judicial construction in the absence of anything in the Acts shewing that the legislature did not mean to use the words in the sense attributed to them by the Courts, the presumption is that Parliament did so use them." Applying this rule in this case, as the words "encounter with fists or hands" had always been used at common law and by the Courts in speaking of prize fights as synonymous with the word "fight" and not including a boxing match, they must be so construed in the Code. If a wider or other meaning is given to the words "encounter" with fists or hands between two persons who have met for such purpose by previous arrangement made by or for them" then every time one young man telephones another and arranges with him to meet at their gymnasium after office hours and box for a quarter of an hour or so before dinner, both would be guilty of "prize fighting," and, but for the forbearance of the police, both would have to spend somewhere between three and twelve months in gaol.

The absurdity of this has but to be mentioned to be apparent. Nor can the fact that each contestant is more more skilful than most boxers, or that each is paid for an exhibition of his skill make any difference so long as they do not fight or intend to fight.

In volume 2 Encyclopædia of Law of England, page 231, it is laid down as the law as follows::

"A boxing or sparring match if it is an honest and friendly contest with gloves, fairly conducted according to the Queensberry rules or other like regulations, seems to be perfectly legal and does not fall within the definition of a prize fight."

Now, the Minister of Justice, who prepared our Criminal Code and drew the interpretation clause 31, was perfectly familiar with the fact that the rule of common law and the many decisions of learned Judges had all distinguished between a genuine "boxing exhibition" and a "prize fight," holding the former lawful and the latter unlawful, and he knew the words that had been used to define a "prize fight" as distinguished from a "boxing exhibition" and still in the Code interpretation he used the very words that had always been used to mark the distinction between these two events. According to the quotation I have made from Lord Coleridge, we must presume he used them in the same sense that they had previously been used.

If the legislature, knowing that a "boxing match" had never been considered a "prize fight," had intended to prohibit boxing matches or exhibitions, it is quite capable of saying so in the exact words, but nothing of this kind is in the Criminal Code.

In The King v. Littlejohn, 8 Can. Crim. Cases 212, a much stronger case than this one, in an appeal in New Brunswick from a conviction under this same section, the learned Judge, in a very instructive judgment, said:—

"There is also authority that a sporting match with gloves, according to well-known rules, is no offence at law,