that is, if it be a mere exhibition of skill in sparring; but if parties meet intending to fight till one gives in from exhaustion or injury received it is a breach of the law and a prize fight, whether the combatants use gloves or not." I wish to make it clear that I am as much opposed to prize fighting and brutality and intentional injury in boxing, football, hockey or lacrosse, as any person can be. At the same time I feel confident that it will be a long time before Parliament will think it wise to so hedge in young men and boys by legis lation that all sports that are rough and strenuous or even dangerous must be given up. Virility in young men would soon be lessened and self-reliant manliness be a thing of the past. I make one more citation: Lord Bramwell, L.J., in Reg. v. Bradshaw, 14 Cox C.C. 83, said:

"I have no doubt but that the game was in any circumstances a rough one, but I am unwilling to decry the manly sports of this country, all of which are no doubt attended with more or less danger and roughness."

Appeal allowed with costs.

Defendants acquitted.

[SUPREME COURT OF SASKATCHEWAN.]

BEFORE WETMORE, C.J., AND PRENDERGAST, NEWLANDS, JOHNSTONE AND LAMONT, JJ.

THE KING v. TETREAULT.

Speedy trial-Election-Committal on preliminary enquiry-Conveying to gaol in another district-Election before officer in same district while en route to gaol invalid-Reserved case-Discharge from detention upon illegal sentence-Order for new trial—“Committed to gaol for trial," meaning of Cr. Code secs. 303, 825, 826, 1016, 1019.

1. The place of election of speedy trial by a district Judge without a jury is the district to the gaol of which the accused has been legally committed on the preliminary enquiry and an election taken before the

prosecuting officer of another district while the accused was in custody under the commitment and was being conveyed to gaol, is not sufficient to confer jurişdiction, even although the latter district was the place of the offence.

2. The words "committed to gaol for trial" used in Code sec. 826 refer to the actual incarceration of the accused for the purpose of detention in custody until tried and not to a temporary detention elsewhere en route from the place of the preliminary enquiry to the common gaol, nor does such temporary detention make the accused a person "otherwise in custody awaiting trial on the charge" within Code sec. 825, subsection 4.

3. Where a speedy trial has been held upon an election invalid in law, the Court of Appeal on a case reserved will order the discharge of the accused from custody under the sentence, and direct a new trial.

DECIDED: July 9, 1909.

Crown case reserved by Forbes, Dist. Ct.J.

T. H. McGuire, K.C., for the prisoner.

Frank Ford, K.C., and H. J. MacDonald, for the Crown.

REGINA, SASK., July 9, 1909.

The judgment of the Court was delivered by

WETMORE, C.J.:-This is a Crown case reserved by Judge Forbes. Isabella Tetreault was charged with an offence under sec. 303 of the Criminal Code. The preliminary hearing was held at Paynton, in the judicial district of Battleford. The accused was committed, by the justice who held the preliminary examination, to the common gaol in Prince Albert. The warrant under which the commitment was made commanded the constable to take the said Isabella Tetreault and her safely to convey to the common gaol at Prince Albert, and there to deliver her to the keeper thereof, together with the warrant, and the keeper of the said gaol was commanded to receive the said Isabella Tetreault into his custody in the said common gaol and there safely keep her until she should be thence delivered by

due course of law. En route to the Prince Albert gaol the accused was held over at Battleford, and there brought before the prosecuting officer at that place, and given her election to be tried by a Judge without a jury, or to remain in custody, etc., to be tried in the ordinary way by a Court having criminal jurisdiction. She elected for a speedy trial, and was then taken to Prince Albert and lodged in the gaol there. There was then no Judge resident in the Battleford district. Upon being brought before Judge Forbes at Prince Albert, the accused claimed the right of election, and also made an affidavit that she did not knowingly or intentionally consent to be tried by a Judge without a jury on the charge, but, on the contrary, she understood that she was going to be tried by a jury. The learned Judge fixed the trial to be held at Battleford, at the District Court there, and the accused before pleading at the trial, renewed the application for election. The accused was convicted and sentenced to three years' imprisonment in the penitentiary.

Section 825 of the Code provides:

"Every person committed to gaol for trial on a charge of being guilty of the offences which are mentioned in section 582 as being within the jurisdiction of the general or quarter sessions of the peace, may, with his own consent, be tried in any province of Canada, and, if convicted, sentenced by the Judge.'

Then section 826 is as follows: "Every sheriff shall, within 24 hours after any prisoner charged as aforesaid is committed. to gaol for trial, notify the Judge in writing that such prisoner is so confined, stating his name, and the nature of the charge preferred against him, whereupon, with as little delay as possible, such Judge shall cause such prisoner to be brought before him. Where the Judge does not reside in the county in which the prisoner is committed, the notification required by this section may be given to the prosecuting officer, instead of to the Judge, and the prosecuting officer shall in such case, with as

little delay as possible, cause the prisoner to be brought before him.'

The first question that arises in the stated case is, was the prisoner, within the meaning of the section of the Code which I have quoted, committed for trial at Battleford? I am of opinion that she was not. I am very clearly of the opinion, under the facts set forth in the case, that the prisoner was merely held over at Battleford; while she was en route to Prince Albert, for convenience, and that she was in no sense of the word committed to any prison there for trial. It has been urged on behalf of the Crown that she was committed to the gaol at Prince Albert for trial when the justices adjudged that she should be committed there. I think in one sense of the word that is correct, but I hold that it is not correct within the meaning and the intention of the sections of the Code to which I have referred. To hold the contrary would seem to me to be at variance with what the Code intends in this respect.

In the first place, sec. 825 provides that "every person committed to gaol for trial may, with his own consent, be tried, That this means a commitment to the gaol, in the sense of the party being imprisoned, is, to my mind, clear by the 826th section, which provides that "every sheriff shall, within 24 hours after any person charged as aforesaid is committed to gaol for trial, notify the Judge," etc. Now, that means 24 hours, not after the justice has made the order committing, but 24 hours after the party is actually committed to prison and is taken in custody there. The language of a statute of this character is to be strictly construed, and is not to be so construed as to give latitude to the ingenuity of counsel to imagine that the legislature intended something else beyond what they have expressed.

Sub-section 4 of sec. 825 provides:

"A person who has been bound over by a justice or justices under the provisions of section 696, and has been surrendered by his sureties, and is in custody on the charge,

or who is otherwise in custody awaiting trial on the charge, shall be deemed to be committed for trial within the meaning of this section.'

And it has been urged that that sub-section is intended to bring a prisoner within the provisions of the sections of the Code in question who may be situated as the accused was in this case. Now I cannot read that sub-section in that way. That sub-section, to my mind, is intended to cover the cases mentioned where a prisoner may not be committed for trial, strictly speaking, but at the same time may be in custody in a particular gaol by virtue of some process of law awaiting trial, or some commitment warranting his imprisonment there awaiting trial, as, for instance, a person who had been admitted to bail and had been surrendered by his sureties. So it is applicable to some person who is in custody awaiting trial, but who has not been specially committed to the gaol for trial. Nevertheless the party must be in actual custody in some prison awaiting trial. In this case the prisoner was committed to the gaol at Prince Albert for trial, according to my reading of the section, and she could not be held at any other place for trial except the Prince Albert gaol, and therefore she was not committed to any prison in the Battleford district for trial. The Prince Albert gaol is not in the Battleford district, and a prisoner who had been committed to a prison in the Battleford district could only be brought before the prosecuting officer of the Battleford district, and of course only then in case the Judge was not resident there.

It is not necessary for me to discuss the other question raised by this reserved case-as to it not appearing on the record kept by the prosecuting officer that he had explained to her when the regular Court sat, or that the sheriff had given the notice required by sec. 826, and so forth. The requirement of notice by the sheriff may be only directory. It may be that the onus is on the party setting up the irregularity, and that otherwise the principle of omnia acta rite would apply. I say nothing