FOREST AND STREAM 
217 
JUDICIAL DECISION OF THE GAME 
LAWS. 
T HE general term of the Common Pleas Court has ren¬ 
dered a decision which will largely control the de¬ 
fenses made to the Game Laws. Mr. Racey is a large 
poulterer in Center Market and has a refrigerating house 
large enough to hold all the game killed in the State. He 
buys immense quantities of game when it is cheap just at 
the close of the open season, keeps it over till spring and 
then sells it at large profits. The Society for the preservation 
of game proposed to stop this trade and under the advi#e of 
its counsel, Mr. Charles E. Whitehead, after vainly urging 
its abandonment, brought suit against Mr. Racey under the 
statute for several thousand dollars penalty. Mr. Racey 
defended on the ground that he was entitled to preserve 
game killed in season by his freezing process and no law 
could prevent his enjoying the use of it. 
To this plea the plaintiff demurred and obtained a judg¬ 
ment in the court below for the whole amount of the pen¬ 
alty, and this judgment has been now confirmed by the 
general term on appeal. The opinion of the Chief Justice 
is so important to all interested in this important subject 
that we publish it at length:— 
ROYAL PHELPS VS. J. H. RACEY. 
Daly., J. O. 
The judge below sustained the demurrer so far as it applied to the 
answer put in to the first and second causes of action averred in the com¬ 
plaint from which decision the defendant has appealed, and the judge 
overruled the demurrer to the answer to the third cause of action in the 
complaint, from which decision the plaintiff appealed. 
I shall first consider the defendant’s appeal. The act,(Law of N.Y.,Yol. 
1,871, p. 1,671, §7,)declares that no person shall kill,expose for sale or have 
in his or her possession any quail between the 1st day of January and 20th 
day of October; or any grouse commonly called partridges or pinnated 
grouse, commonly called prairie chicken, between the 1st day of January 
and the 1st day of September. The answer admits that the defendant had 
in his possession and exposed for sale on the 15th of March, six quail, 
and that he had in his possession and exposed for sale on the 19th of 
March two pinnated grouse, which was admitting the cause of action 
stated in the first two counts; the plain import of the act being, as was held 
in Bellows vs. Elmendorf 7, Lansing 462, to prevent any evasion and 
make all persons lia ble who had possession of or exposed such property 
for sale. 
It makes no distinction between game killed within or without the 
limits of this State except in the case provided for in sec. 33, Phelps vs. 
Trim, et al., J. Yan Brunt, Supreme Court special term, February, 1873. 
So far, therefore, as respects this appeal, the judgment below should be 
affirmed. 
The assumed unconstitutionality of the law I shall consider under the 
next head. 
In answer to the third cause of action the defendant admits that he 
had in his possession on the 19th of March one hundred quail, and in 
justification thereof, avers that he is an extensive dealer in game; that 
he has patented an apparatus by which ^e is enabled to preserve game 
after it has been killed for the period of a year; that the one hundred 
quail admitted to have been in his possession on the 19th of March, were 
put up by him in the said apparatus in the month of December, 1872, 
when the killing of it was not prohibited by law in this State, or after re¬ 
ceiving it from States where the killing of it was at the time legal. By 
the 33d section of the act it is lawful to sell or have in one's possession 
quail from the 1st of January to the 1st of March, provided the party 
proves that it was killed within the period allowed by the act or killed 
outside the limits of the State at some place where the law did not pro¬ 
hibit such killing. 
This right, however, is limited to the 1st of March, and the defendant 
admits that he had there one hundred quail in his possession afterwards, 
that is on the 19th of March. The justification he sets up is, that he had 
them then in his patented apparatus in which they were placed at a time 
when the killing of them was lawful. But the statute has made no pro¬ 
vision for such a case. It has allowed game to be killed before the 1st 
of January, or in States where the killing of it was at the time lawful, to 
be sold or kept in possession between the 1st of January and the 1st of 
March, and that is all. Beyond that the prohibition is positive that no 
person shall have any of the game specified m his or her possession, and 
I am wholly at a loss to see upon what ground it can be said that the pos¬ 
session which existed in this case was not the kind of possession which 
the statute meant. It may be that when the law was made that no such 
thing was contemplated as that game killed in the autumn of one year 
could be preserved, (as in this case,) so as to be sold a year afterwards 
within the prohibited period. But we cannot say so as a matter of law 
for, for all that we know or for all that appears in this answer, this ap¬ 
paratus may have been known and in use when this law was enacted. In 
Bellows vs. Elmendorf, supra, the skin and carcass of the deer was bought 
at the Sheriff’s sale and sold by the purchaser to the defendant, whose 
possession was held to be in violation of the act. In that case the animal 
was killed within the forbidden period, which commenced on the 1st of 
January. It was killed on the Sth of January and purchased on the 21st 
of that month, and for all that appeared the defendant may not have 
Known when it was killed. The law allowed persons to have such game 
in possession or to expose it for sale for ten da;y s after the 1st of January 
or to possess or sell it if received for sale prior to the Uth of January. 
The carcass and skin was levied upon on the 14th and sold by the 
Sheriff and purchased by the defendant on the 21st of January, and this 
was held to be a possession on the part of the defendant in violation of 
the act. The difference between that case and this is, that there the game 
was killed within the prohibited period and here it is answered that it was 
not; in connection with which, it is sufficient to say that the act under 
which the present action is brought, has made provision for the sale and 
keeping possession of this particular kind of game after the period when 
it is allowed to be killed and that time had expired when the defendant, 
as he admits, had the one hundred quail in his possession. 
The words of the statute are expressed that no person shall have game 
of thi s description in his possession within the prescribed period; a pro¬ 
hibition that may have been designed and probably was, to take away any 
inducement to kill these game birds within the prescribed period, as no¬ 
body can after that period commences lawfully have or keep them in their 
possession. 
The objection raised that this act is unconstitutional, is untenable. It 
violates no regulation made by Congress in respect to commerce and de¬ 
prives no one of property. 
The act held in Wynchamer vs. The People, 13, N. Y., 378, to be un¬ 
constitutional. was very different. 
It'authorized the destruction of the property of persons owned by them 
hen the law took effect. Here the quails were acquired by the defend¬ 
ant s own showing after the law was in force, and with knowledge of the 
existence of it, which is a very different case. Slaughter Hous'e cases, 
ib Wall, 36. 
The judgment as to the answer to the two first counts, should in my 
opinion, be affirmed; and as to the third count, it should be reversed 
and judgment given fo. the plaintiff upon that count. 
A.n otter was caught in Westfield, Vermont, recently 
which measured four feet seven inches from tip to tip. 
THE WIMBLEDON TARGET. 
/^VUR most thorough contemporary, the Volunteer Service 
Gazette , devotes some three pages to 1 the views of 
eminent riflemen in England in regard to the vexed subject 
of the new regulation targets to be used at Wimbledon. 
Perhaps the most interesting of them all is a communication 
from Mr. Edward Ross, well known as the. best of English 
riflemen. Mr. Ross objects strongly to the change, and a 
portion of his letter is so interesting that we reproduce it 
as follows:— 
“With regard to the other changes, which are mere 
matter of paint, and cost nothing, I only wish to point out 
that considerable misapprehension seems to exist with re¬ 
gard to the reduction of the bull’s eye. It is assumed that 
the smaller the mark the greater the skill required to hit the 
mark; but that is not necessarily so. It entirely depends 
on whether or not the size of the mark is within the com¬ 
pass of the rifle. If it is proved when a rifle is fired from a 
machine rest at a given distance, that it cannot be relied on 
to hit a smaller space than, say two feet in diameter, then 
it is no proof of extra skill on the part of the firer if he 
should chance to place a few consecutive shots in a space 
of six inches; his doing so would be entirely attributable to 
circumstances over which he has no control. And his op¬ 
ponent, who places the same number of shots over a wider 
space, but within the two feet circle, deserves just as much 
credit; he has done all that the rifle can be relied on to do, 
and anything more than that is a chance.” 
We have taken some trouble to bring all this subject of 
changes in form of targets before our own riflemen, so that 
all the pros and cons may be thoroughly understood. We 
would call particular attention to the system of marking, 
proposed by our contributor, “T. C. C.,” in our present 
number, whose articles on rifle shooting at long range have 
been so thoroughly appreciated by our marksmen. We 
feel certain that the connecting link between the targets as 
to their capacity of showing finer shadings as suggested by 
“T. C. C.and the method of making the riflemen instant¬ 
ly acquainted with the exact position of the ball on the tar¬ 
get, will soon be found without advocating an automatic pro¬ 
cess. We think that the system of squares could be readily 
telegraphed by ground wires to the shooter by means of the 
simplest telegraphic instruments a thousand times less com¬ 
plicated than those machines which print off the move¬ 
ments of the stock board. We only intend to be suggestive 
about these things and are looking to the future. For the 
present, we are perfectly satisfied with things as they are, 
though we do believe that before the Creedmoor season is 
over some improvements will be made in the method of 
signalling the shots. We are awaiting every day for the 
clever telegraph inventor, (and there are a thousand such,) 
who will patent such a contrivance. 
Jfiws from Jlbi[oad. 
W E have frequently commented on the peculiarities 
of the English laws in regard to the rights of the 
chase. In the last issue ol the Forest and Stream the 
article entitled “Trespass and Game Protection” gave an 
insight into the peculiar character of these laws, and how 
certain privileges were combined with the holding of prop¬ 
erty. Some time ago we expressed our astonishment that 
in Ireland there w T ere certain restrictions still enforced 
about keeping greyhounds. A hare, to use an appropriate 
bull, having become of late a rara avis in the Emerald Isle, 
its scarcity is said to have arisen from the fact that people 
who had no rights kept greyhounds. Quite lately a Mr. 
Kilmartin was prosecuted and fined for keeping such dogs 
without the proper qualification. Our most learned con¬ 
tributor, B., adverts exactly to those peculiar laws which 
have a bearing on these cases. . There is an old law, of the 
time of William III., which reads that no one not possess¬ 
ing a freehold of £40 a year, or a personal property worth 
£1,000, can keep either hounds or spaniels. In 1787 this 
law was made even more comprehensive, for pointers, 
beagles, and greyhounds were added to the list. Though 
in the present case five magistrates were on the bench, and 
two dissented, the sanctity,of a wretched old law was car¬ 
ried out and Mr. Kilmartin was fined. Our English con¬ 
temporary very properly expresses the desire “that such 
unnecessary restrictions should be abolished with all con¬ 
venient speed, and that all Irishmen henceforth should be 
permitted to keep whatsoever dogs they please.” We note 
these facts to show how these stupid old privileges are al¬ 
lowed to remain on the Irish statute books, which are as 
arriere and as much behind the age as would be the black 
letter Norman law if we applied it to-day for the govern¬ 
ment of a State. It is exactly such restrictions against free 
rights and common sense which cause dissension among the 
Irish. As far as field sports go, perhaps by their enact¬ 
ments not a single hare more is allowed to live, and they 
are capable of promoting much graver political troubles. 
Think of it! In A. D. 1874, an Irishman cannot keep the 
kind of dogs he wants to. 
—We feel very much obliged to a correspondent in Land 
and Water for bringing to the attention of English readers 
the fact that large quantities of prairie chickens, together 
with other game, were exposed for sale at the poultry shops 
in London and elsewhere, at a late date. The writer says 
“No sportsman can help feeling disgusted on passing any 
poulterer’s shop at this time of the year (April 18th) at the 
sight of the quantities of prairie fowls exhibited for sale, 
the birds being now nearly tasteless, and what taste they 
have resembling carrion.” In our issue of April 28d we 
called attention to the fact of the large numbers of prairie 
chickens exposed for sale in Liverpool, and showed how 
these birds must have been killed in our close season. To 
sell prairie chickens in London up to the middle of April 
must be to offer to our English game eating friends a most 
disgusting mess, as unpalatable as unwholesome. After 
March 1st pinnated grouse are no longer edible. Our 
thanks are then due to N. Y. Z., of the Land and Water, 
who protests against the disposal of our game birds in Eng¬ 
land at improper seasons. 
—Perhaps as we write this the Grace team will be at 
home in England, and after a week or so of rest we may 
have to record once more the prodigious efforts of the 
cricketing Leviathan and of the other mastodons. If on 
their Australian tour they have not exactly swept away 
whole forests of stumps, they have achieved some wonder¬ 
ful victories. Just think of the odds all the time—eleven 
versus twenty-two. Australia has developed some elevens 
of distinguished merit. A correspondent to Land and 
Water , possibly the writing member of the eleven, says:— 
“We have now played nine matches, five of which we have 
won, three we have lost, and one has been drawn. It was 
not owing to the bad ground that we ever lost a match at 
all, for although they (the Australians) play much better 
than I ever expected, they are not anything like a match 
for this team.” Some day, to revive that forever hack¬ 
neyed quotation of Macaulay’s, we may say “The Austra¬ 
lian striding over the ruins of Lord’s cricket ground will 
bowl out the last of England’s cricketers.” We sorry to 
notice that there has been the least suspicion of ill hu¬ 
mor somewhere. Something is said about Australian 
bounce and American bunkum in regard to these matches. 
We fancy that that curse of all sports, betting, has had 
something to do with the matter. 
—Last year one of our leading New York journals gave 
a most' humorous account of the canoe cruising in our 
waters, and how a New Jersey coroner, in quest of a job, 
kept hovering in the neighborhood of the canoeists. They 
have had a grand cruising on the Thames, starting from 
Greenwich, and from all accounts they must have had a 
good time of it amidst wind, water, and hail. The frailty 
of the crafts and the pluck of the skippers seemed to have 
excited the admiration of even the regular old salts. In 
an amusing account in the Field, one beery bargee having 
examined a canoe, and seeing its occupant alive, at table 
next day remarked, looking in the canoeist’s face, “Go it, 
guv’nor; that’s the last breakfast you’ll ever eat. ”It seems 
to have been a jolly cruise, however. Everybody got wet, 
and had hairbreadth escapes, but all came in safe, the mem¬ 
bers of the cruising club “expressing the greatest satisfac¬ 
tion,” and are ready to try it over again. 
--Blessed dog! Talk not to us of instinct, sagacity, 
friendliness, or affection developed in man’s most faithful 
companion, but think of this trait of character, which sur¬ 
passes them all. There is in England a Newfoundland dog, 
a prize winner at the Crystal Palace show for beauty and 
intelligence. Now this dog has manifested a devotion to 
man, and an abhorrence for bad music. Street bands are 
this dog’s peculiar abomination. If a German band strikes 
up in his neighborhood they are instantly and ignomin- 
iously dispersed. His pet hatred is a trombone. Fie will 
only snarl at a French horn, individually; but this admir¬ 
able creature always singles out the trombonist, and inva¬ 
riably brings him and his instrument to grief. If we had 
only such a dog; say even a pack of ihem, for just now as 
we write this a prowling band are absolutely loosening the 
Guidette pavement in our neighborhood, and curdling the 
ink, like as if it was milk in a thunder storm, by their dis¬ 
cordant jarrings. If Dr. Stables, M. D. R. N. and H. M. 
S.,will only send us one of Pembroke’s issue we promise to 
treasure him. Just around the corner there is a field for 
the fullest development of all those endearing qualities 
which this Newfoundland dog is said to be celebrated for. 
Pinnated Grouse in England.— Richard Valentine, 
Esq., the industrious Secretary of the Wisconsin State 
Poultry Association, informs us that he has made arrange¬ 
ments to procure a few clutches of pinnated and sharp-tail 
grouse eggs for setting, and proposes to send a couple of 
dozen to England, to determine by experiment whether 
they cannot be as easily and successfully hatched there, as 
are the eggs which our poultry breeders receive from Eng¬ 
land and hatch here. Mr. Valentine having requested us 
to name certain gentlemen in England to whom he might 
send the eggs, we have designated those whom we believe 
would pay special attention to the rearing of these birds. 
We have to thank the worthy Secretary of the Wisconsin 
State Poultry Association for having met the views of Eng¬ 
lish sportsmen, who are desirous of introducing our game 
birds into their country. Later we will give the names of 
those who have received the eggs, and will acquaint our 
readers with the success of the experiment. 
The,Adirondack Park.— Mr. Alvord has charge of the 
Adirondack Park bill in our State Legislature, and he has 
assured our travelling representative that it will pass almost 
if not quite, unanimously. Verplanck Colvin, Esq., who 
was appointed to prepare a map of the region and make his 
] eport to the Legislature, claims to have discovered and 
named thirty-eight new lakes in the North Woods. He has 
promised our readers an account of his adventures there 
last winter, as soon as he can find time to write them. 
—Seth Green, the veteran Fish Cuhurist, writes all his 
notes with lead pencil on scraps of paper, but these rough 
notes, tossed off like chips from a sturdy axe, always con¬ 
tain words of wisdom. Seth is very modest withal, though 
possessing a compiendable degree of pride in whatever 
work he undertakes or accomplishes. 
