446 APPENDIX. 



feet from the pole, as the rules prescribe, and as all our old tracks 

 were measured, it was found to be short. Now, either of these 

 things would have invalidated the performance. It was also stated 

 and admitted that by reason of buildings and trees about a quarter 

 of a mile of this course at Cold Spring was shut out of the view 

 of the judges, and it was argued that this was a thing prohibited 

 by inference, necessary inference, by the rule which requires 

 that heats shall not be trotted when the horses cannot be plainly 

 seen by the j udges from the stand. I am now of the opinion that 

 this argument was strained too far, because there was a sort of 

 prescription in favor of the course, which had been used for trot- 

 ting before without protest. There are very grave objections 

 against a course a quarter of a mile of which is hidden from .the 

 j udges. That fact ought to be sufiScient to prohibit its use for 

 trotting purposes in the future, but inasmuch as it had been used 

 before and then without protest, it would not, of itself, warrant 

 the expunging of the record. The latter was a, penal proceeding, 

 and it must go on in virtue of a specific enactment ; an inference, 

 drawn from another rule, would not justify it. But all this was 

 nothing to the parties who afterwards moved the Board of Ap- 

 peals to expunge this record. They were in blissful ignorance of 

 the first principles of law and jurisprudence. They moved the 

 Board, and they made what they called an argument, the most 

 feeble twaddle ever seen. It had just one effect. It convinced 

 everybody who had entertained doubts of this performance that 

 the record could not be disturbed, and so the board found with 

 unanimity. Instead of producing any evidence of either of the 

 things which would have been fatal to the record, viz., the color- 

 able and collusive ownership, or the shortness of the course, 

 the appellants went maundering on about religion and reform. 

 All the evidence came from the other side, and cleared up the 

 doubts on those points which would have been fatal if established. 

 I have since been informed that publication has been recentlv 

 made of a number of articles I wrote against the record when 



