CAPTURE, ETC., IN THE CLOSE SEASON. .567 



seizure by a deputy of the game commissioners without a 

 warrant or order from court. *^ 



An act imposing a penalty on having in possession at one 

 time more than a certain quantity of game does not make it 

 unlawful for a common carrier to transport during the pro- 

 hibited season more than the legal amount, if it was killed 

 at a lawful time.** 



Where by statute the possession of a bird of a certain kind 

 is evidence that it Avas killed in violation of law, the possession 

 being shown, the burden is on the accused to show that his 

 possession is consistent with a lawful taking."'" And where 

 game unlawfully killed is commingled with game lawfully 

 killed, the burden is on the possessor to prove, as against the 

 State, what portion was lawfully killed. ^^ 



One who has in possession or ofifers for sale deer at a for- 

 bidden season is not exempt from liability by reason of the 

 fact that his title and possession were by purchase at a sheriff's 

 sale on execution against the killer of the game.^^ 



Where the plaintififs employed the defendant to store game 

 during the "closed season" which they had on hand at the 

 commencement of such season, intending to withdraw it when 

 the "open season" returned, and subsequently brought an 

 action for damages owing to the game being insufficiently 

 kept, it was held that the plaintiffs could not recover as the 

 intention of the parties could not be considered and the de- 

 fendant's contract to preserve and restore the garne was void 



"Averill v. Chadwick, 153 Mass. 171. 



" Bennett v. American Exp. Co., 83 Me. 236. And see 13 L. R. A. 

 804 n, where this is said to be an "important modification" of some of the 

 -decisions cited above. See also Allen v. Young, 76 Me. 80 



A tieer roaming wild in the defendant's park containing from 700 to 800 

 acres, and surrounded by the sea except a narrow strip, where artificial 

 structures had been placed, was held not to be so in the defendant's posses- 

 sion that he could kill it in close time: State v. Parker, 89 id. 81. 



'° State V. Stone (R. I.), 40 Atl. Rep. 499- 



"Thomas v. Northern Pac. Exp. Co. (Minn.), 75 N. W. Rep. 1120. 



" Bellows V. Elmendorf, 7 Lans. (N. Y.) 462. 



