General or special. Penalty. Being present for purpose of drilling others. Drilling others. Being unlawfully drilled. Definition of affray. Penalty. prohibit persons when assembled for any other purpose from so training or drilling themselves or being trained or drilled. 2. Any such prohibition may be general or may apply only to a particular place or district or to assemblies of a particular character, and shall come into operation from the publication in the Canada Gazette of a proclamation embodying the terms of such prohibition, and shall continue in force until the like publication of a proclamation issued by the authority of the Governor in Council revoking such prohibition. 3. Every person is guilty of an indictable offence and liable to two years' imprisonment who, without lawful authority and in contravention of such prohibition or proclamation,— (a) is present at or attends any such assembly for the purpose of training or drilling any other person to the use of arms or the practice of military exercises or evolutions; or, (b) at any assembly trains or drills any other person to the use of arms or the practice of military exercises or evolutions. 55-56 V., c. 29, s. 87. The prosecution must be commenced within six months from the commission of the offence. Section 1140 (d). 99. Every one is guilty of an indictable offence and liable to two years' imprisonment who, without lawful authority, attends, or is present at, any such assembly as in the last preceding section mentioned, for the purpose of being, or who at any such assembly is, without lawful authority and in contravention of such prohibition or proclamation, trained or drilled to the use of arms or the practice of military exercises or evolutions. 55-56 V., c. 29, s. 88. The prosecution must be commenced within six months from the time when the offence was committed. Section 1140 (d). Affrays and Duels. 100. An affray is the act of fighting in any public street or highway, or fighting to the alarm of the public in any other place to which the public have access. 2. Every one who takes part in an affray is guilty of an indictable offence and liable to one year's imprisonment with hard labour. 55-56 V., c. 29, s. 90. If the fighting be in private it is not an affray, but an assault. 4 Bl. Com. 145; R. v. Hunt, 1 Cox C.C. 177. Mere quarrelsome words will not make an affray. I Russ. Cr. 5th ed. 390. It differs from a riot in that two persons may be guilty of an affray, but it requires three or more to constitute a riot. Sections 87 and 88. 101. Every one is guilty of an indictable offence and liable Challenge to to three years' imprisonment who challenges or endeavours by fight a duel. any means to provoke any person to fight a duel, or endeavours to provoke any person to challenge any other person so to do. 55-56 V., c. 29, s. 91. Sending challenge to fight.]-It was a very high offence at common law to challenge another, either by work or letter, to fight a duel; or to be the messenger of such a challenge or even barely to provoke another to send such a challenge or to fight, e.g., by dispersing letters to that purpose containing reflections and insinuating a desire to fight. Hawk. P.C., b. 1, ch. 63, sec. 3; R. v. Phillips, 6 East 464; R. v. Rice, 3 East 581. If the defendant's intent does not sufficiently appear from the words proved, the prosecution should give evidence of circumstances from which the jury may infer the intent. R. v. Phillips, 6 East 464; Archbold Cr. Evid. 1060. Where a letter challenging to fight is put into the post office in one county and delivered to the party in another, the venue may be laid in the former county. R. v. Williams (1810), 2 Camp. 506. The sending of the challenge is the offence and the offence is complete if the letter be mailed, although it does not in fact reach the person to whom it is addressed. Ibid. Forcible Entry and Detainer. 102. Forcible entry is where a person, whether entitled or Definition of not, enters in a manner likely to cause a breach of the peace, or forcible reasonable apprehension thereof, on land then in actual and entry. peaceable possession of another. detainer. 2. Forcible detainer is where a person in actual possession Definition of of land, without colour of right, detains it in a manner likely forcible to cause a breach of the peace, or reasonable apprehension thereof, against a person entitled by law to the possession thereof. 3. What amounts to actual possession or colour of right is a Question of question of law, 55-56 V., c. 29, s. 89. Forcible entry.]-"Entering" here means not merely going upon land or trespassing upon it; there must accompany the act of going upon the land some intent to take possession of the land itself and deprive the possessor of the land. Such an interference with the possession as trespassing upon it for the purpose of taking away chattels upon the land is not an "entering" within the Code. R. v. Pike (1898), 2 Can. Cr. Cas. 314, 12 Man. R. 314. Forcible entry of a dwelling house may consist of an entry made with such threats and shew of force as would, if resisted, cause a breach of the peace, although no actual force was used. R. v. Walker (1906), 12 Can. Cr. Cas. 197, 4 W.L.R. 288. In the same case it was said that evidence law. Penalty. relating to the title of the occupant is not admissible as to which see R. v. Child, 2 Cox 102; R. v. Hoar, 6 M. & S. 266. Lord Tenterden, C.J., expressed himself as follows, in Rex v. Smyth, 5 C. & P. 201: "An indictment for a forcible entry cannot be supported by evidence of a mere trespass; but there must be proof of such force, or at least of such kind of force as is calculated to prevent any resistance." To enter upon lands with such force as to exceed a bare trespass and so as to cause a public breach of the peace was an indictable offence at common law. R. v. Wilson, 8 T.R. 357; R. v. Bake, 3 Burr. 1731. Everyone commits the offence of forcible entry, who, in order to take possession thereof, enters upon any lands or tenements in a violent manner, whether such violence consists in actual violence applied to any other person, or in threats, or in breaking open any house, or in collecting together an unusual number of persons for the purpose of making such entry. Stephen's Digest of Crim. Law, p. 51. Where, therefore, from thirty to forty employees of the G. W. Railway Co. went upon land then in possession of the S. & H. Railway Co., and those resisting had good reason to apprehend violence in the event of further resistance, and yielded possession in the apprehension of such violence, it was held that the entry was a forcible one. R. v. Smith (1878), 43 U.C.Q.B. 369. The evidence which supported the allegation of forcible entry in the case of R. v. Smith, supra, was held to support the allegation of forcible detainer. Ib., p. 383. The gist of the offence is the forcible depriving of the other's actual and peaceable possession in a manner likely to cause a breach of the peace. R. v. Cokely, 13 U.C.Q.B. 521; R. v. Studd, 14 W.R. 806; Beddall v. Maitland, 17 Ch.D. 174. Even if the defendant had a right of entry, the assertion of that right "with strong hand or with multitude of people" is equally an offence as if he had no right. Taunton v. Costar, 7 T.R. 431. A landlord may not so eject his tenant although the term of the tenancy has expired. But it has been held that the English statute regarding forcible entry (5 Ric. 2, ch. 7) does not apply to the ejectment of a mere trespasser. Browne v. Dawson, 12 A. & E. 624; Scott v. Browne, 51 L.T. 747. A person who forcibly enters upon lands of his own which are in the custody of his servant or bailiff, is not guilty of forcible entry. 1 Hawk., ch. 64, sec. 32. Actual possession does not necessarily imply actual residence, either personally or by a servant or agent. 13 Am. & Eng. Encyc. of Law, 2nd ed., p. 750. Forcible detainer.]-Everyone commits the offence called forcible detainer, who, having wrongfully entered upon any lands or tenements, detains such lands and tenements in a manner which would render an entry upon them for the purpose of taking possession forcible. Stephen's Digest of Crim. Law, p. 51. Restitution.]-It is within the discretion of the judge who tries the cause either to grant or refuse restitution. R. v. Wightman (1869), 29 U.C.Q.B. 211; R. v. Smith (1878), 43 U.C.Q.B. 369; R. v. Jackson Draper's Rep., Upper Canada, 53. 103. Every one who forcibly enters or forcibly detains land is guilty of an indictable offence and liable to one year's imprisonment. 55-56 V., c. 29, s. 89. Prize Fights. 104. Every one is guilty of an offence and liable, on sum- Challenging, mary conviction, to a penalty not exceeding one thousand etc. dollars and not less than one hundred dollars, or to imprisonment for a term not exceeding six months, with or without hard labour, or to both, who sends or publishes, or causes to be sent or published or otherwise made known, any challenge to fight a prize fight, or accepts any such challenge, or causes the Accepting same to be accepted, or goes into training preparatory to such challenge, fight, or acts as trainer or second to any person who intends to engage in a prize fight. 55-56 V., c. 29, s. 93. Prize fight defined.]—See sec. 2(31). etc. 105. Every one is guilty of an offence and liable, on sum- Engaging as mary conviction, to imprisonment for a term not exceeding principals. twelve months and not less than three months, with or without hard labour, who engages as a principal in a prize fight, 55-56 V., c. 29, s. 94. Prize fight.]-A sparring match with gloves, fairly conducted, is not unlawful. R. v. Young, 10 Cox C.C. 371. If, however, the parties meet intending to fight till one gives in from exhaustion or injury received, such fighting in unlawful whether the combatants fight with gloves or not. R. v. Orton, 14 Cox C.C. 226. A sparring match with gloves, under Queensberry or similar rules given merely as an exhibition of skill and without any intention to fight until one is incapacitated by injury or exhaustion is not a "prize fight" under Code secs. 105 and 2(31); to constitute a "prize fight" there must have been a previous arrangement for a "fight" in the ordinary sense of the term, and that involves an intention to continue the encounter until one or the other of the combatants gives in from exhaustion or from injury received. The King v. Littlejohn, 8 Can. Cr. Cas. 212. The defendants advertised a boxing exhibition which was effectively held in a public hall, and was accompanied by all the particulars and circumstances of a prize fight. Complainant submitted that the accused came within the provision of the statute; and on behalf of the defendants it was contended that the encounter was merely a scientific boxing match, and moreover only a sham fight, not forbidden by law:-Held, that, as the proof adduced established that the encounter in question was accompanied by all the circumstances and elements which constitute a prize fight, the defendants committed an infraction of the law, for which they must be found guilty. Steele v. Maber, 6 Can. Cr. Cas. 445, 19 Que. S.C. 392. The injuries given and received in prize fights are injurious to the public, both because it is against the public interest that the lives and the health of the combatants should be endangered by blows and because prize fights are disorderly exhibitions, mischievous on many obvious grounds. R. v. Coney, 8 Q.B.D. 534, 30 W.R. 678, per Stephen, J. The consent of the parties to the blows which they may mutually receive does not prevent those blows from being assaults. Ibid. The fight must be for a prize or one on the result of which the handing over or transfer of money or property depends, otherwise it is not a prize Attending or promoting. Leaving Canada to engage in fight; sec. 108; but, where that is not shewn, it may still be punished under the latter section by a fine not exceeding $50; if the fight were bonâ fide the result of a quarrel or dispute. Preventing and suppressing prize fights.]-See secs. 627 and 628. Recognizance not to engage in prize fight.]—Whenever any person who has been required to enter into a recognizance with sureties, to keep the peace and be of good behaviour, or not to engage in any prize fight has, on account of his default therein, remained imprisoned for two weeks, the sheriff, gaoler or warden shall give notice, in writing, of the facts, to a judge of a superior court, or to a judge of the county court of the county or district in which such gaol or prison is situate, or, in the cities of Montreal and Quebec, to a judge of the sessions of the peace for the district, or, in the North-West Territories, to a stipendiary magistrate. Such judge or magistrate may order the discharge of such person, thereupon or at a subsequent time, upon notice to the complainant or otherwise, or may make such other order as he sees fit, respecting the number of sureties, the sum in which they are to be bound and the length of time for which such person may be bound. Section 1059. 106. Every one is guilty of an offence and liable, on summary conviction, to a penalty not exceeding five hundred dollars. and not less than fifty dollars, or to imprisonment for a term not exceeding twelve months, with or without hard labour, or to both, who is present at a prize fight as an aid, second, surgeon, umpire, backer, assistant or reporter, or who advises, encourages or promotes such fight. 55-56 V., c. 29, s. 95. 107. Every inhabitant or resident of Canada is guilty of an offence and liable, on summary conviction, to a penalty not prize fight. exceeding four hundred dollars and not less than fifty dollars, or to imprisonment for a term not exceeding six months, with or without hard labour, or to both, who leaves Canada with intent to engage in a prize fight without the limits thereof. 55-56 V., c. 29, s. 96. When fight is not a prize fight. Discharge or fine. Penalty. 108. If, after hearing evidence of the circumstances connected with the origin of the fight or intended fight, the person before whom the complaint is made is satisfied that such fight or intended fight was bona fide the consequence or result of a quarrel or dispute between the principals engaged or intended to engage therein, and that the same was not an encounter or fight for a prize, or on the result of which the handing over or transfer of money or property depended, such person may, in his discretion, discharge the accused or impose upon him a penalty not exceeding fifty dollars. 55-56 V., c. 29, s. 97. Inciting Indians. 109. Every one is guilty of an indictable offence and liable to two years' imprisonment who induces, incites or stirs up any |