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[Dec. 26, 1908. 
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BIG GAME AT SEA 
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THE WEINSTOCK CASE. 
Continued from page 1019. 
under the provisions of Section 39 of that law. 
Section 27, of the Forest, Fish and Game 
Law, as amended by Chapter 335 of the laws 
of 1905, provides that “grouse and woodcock 
taken in this State shall not be sold or offered 
for sale within this State, or carried without the 
State, nor shall grouse or woodcock taken with¬ 
out the State be sold or offered for sale within 
the State except pursuant to the provisions of 
this section. Possession of grouse or woodcock 
by any person shall be presumptive evidence that 
they were taken in this State, provided that such 
presumption shall not attach to the possession of 
grouse or woodcock by any person who shall 
have given to the commissioner a bond to the 
people of the State, as hereinafter provided, ap¬ 
proved by him as to form, amount and suffi¬ 
ciency of sureties, so long as the same shall be 
in force. The bond shall be for a specified 
time, and shall continue in force for that time 
unless sooner disapproved by the commissioner 
for breach of its conditions or failure of sure¬ 
ties. 
“Such bond shall be conditioned that such per¬ 
son shall not knowingly have in his possession 
or sell grouse or woodcock taken in this State, 
and shall contain such other provisions as to 
inspection of grouse or woodcock possessed by 
him, evidence that the same were taken without 
the State, by way of bill of sale, way bill or 
otherwise, and generally such requirements as 
the commissioner may deem necessary to secure 
the enforcement of this section; nor shall pre¬ 
sumption attach to possession of grouse and 
woodcock by any person purchasing the same 
for consumption from a person whose bond is 
in force as aforesaid. But no presumption that 
grouse or woodcock are possessed free from the 
presumption that they were taken in this State, 
as herein provided, shall arise in any action or 
legal proceeding until it affirmatively appears 
that the provisions of this section have been 
complied with. Any person violating any of the 
provisions of such bond shall be denied the 
privilege of giving another bond under this 
section.” 
The words italicized show the amendment 
that was made to Chapter 291 of the Laws of 
1903. It consequently appears that, under the 
former statute no limitation was placed upon 
the sale of grouse taken without the State other 
than that the possession of grouse shall be 
presumptive evidence that they were taken 
within the State unless a bond was given to 
the commissioner in accordance with the pro¬ 
visions of the act. The question now presented 
for determination is as to the effect that should 
be given to the amendment. The construction 
given to it by the learned Appellate Division is 
that it provides a penalty, not for the sale of 
grouse taken without the State, but for the 
failure to give the bond provided for. 
If this be so, then this anomaly in the con¬ 
struction of the statute arises. If a person be 
charged with the offence of selling grouse taken 
within the State the fact that he has not given 
a bond raises a presumption of fact that the 
grouse so sold were taken within the State and 
the burden is cast upon him of showing that 
they were taken elsewhere. But if he be 
charged with selling grouse taken without the 
State, he is not liable to the penalties for mak¬ 
ing the sale, but is liable for his failure to give 
the bond. We do not think that this was the 
intention of the Legislature. The purpose of 
the bond is plainly stated in the statute. It is, 
that the possession of grouse raises a 
presumption of fact that they were taken 
within the State unless the bond pre- 
