The opinion of the court was delivered by
Wheeler, J.
So far as the motions to quash in each of these cases are founded upon matters not apparent upon the face of the proceedings and no trial of fact has been had upoir them without objection, they are not of any effect to raise any question upon such extraneous matters. The rule appears to have been established early that all such matters must be alleged in a traversable form by plea unless some statute expressly provided otherwise; and that rule appears to have been uniformly followed where any question has been made about the method of procedure. Barrows v. McGowan, 39 Vt., 328. These motions to that extent are disposed of upon this ground, but without intending to imply that any of the objections would have been fatal if raised by plea.
All parties seem to have waived this question as to so much of the motion in the case of Kelly, Carr and Blanchard as sets forth an alteration of the complaint by the state’s attorney, and evidence appears to have been received without objection, from which the court found the facts upon that subject. This course brought all questions arising upon the facts so found, before that court, and they were so disposed of there as to be revisable here. What the state’s attorney did in that behalf, however, did not alter the complaint in fact or effect. He defaced it, but the defacement of it, although done with pen and ink, did not, when done, vary it at all, [217]*217but left it as it was before. See Bellows v. Weeks, 41 Vt., 590. The decision of the county 6ourt upon these facts, as to that part of the motion, appears to have been correct.
So far as the motions were founded upon matters apparent upon the face of the proceedings, they properly and regularly raised all questions arising upon such matters.
The objection that the complainants did not appear to have been legal voters in the city of Burlington, as often as made in either case, was not founded upon fact* In Kelly’s case, where there is the most color for this objection, the complaint, after the direction to the justice, treating the word “ and” — which is in a line by itself and not at all connected with any other words — as sur-plusage, proceeds to state that “ come legal voters in the city of Burlington and complain,” etc.: to which the signature of three persons is appended. This is a plain statement that these persons come and complain as legal voters, and clearly implies that they are such. This is as much as the statute requires, and is sufficient.
The same is true of the objection urged that the persons sworn to the complaints do not appear to be those who signed the complaints. The certificate of the oath in each case contains the names of the persons sworn and the names are similar to those signed to the complaints, although in some instances the initials of the given names are used in one place and a part or the whole of those names in the other. In each certificate the persons are described as those above named, and this reference is to the complainants and to no others and amply shows that the complainants made oath to their complaint.
The description of the places to be searched, in each case, left no discretion to the officer in respect to what places he would search. The warrants directed him in that respect, .and did not leave Mm to direct himself. This seems to be sufficient in such cases.
The statute points out no particular mode for summoning claimants. In these cases the officer returned that he summoned them, without specifying how he did it. They appeared and objected that the returns did not show sufficient service in that respect. In cases of this kind the process is returnable forthwith. If upon [218]*218return it appeared to have been served improperly or insufficiently, further service could be required by the court and made before proceeding with the prosecution. If no service should be made upon a claimant, he could voluntarily appear and make claim, and if he should do so the proceedings would be as well founded upon his voluntary claim as upon the most perfect service. These claimants, after they had objected to the return of service, remained before the court and made claim, and the proceedings thereafter were well founded upon the voluntary stay of the claimants. There was no occasion for any further service, when the claimants voluntarily staid in court upon that already made. And there is no occasion now to decide whether the service would have been sufficient to bind the claimants in any way if they had left the proceedings to stand upon the strength of the return and had not made any claim.
This disposes of all the questions arising upon the motions and of all questions made in Kelly’s case.
In each of the. other cases question is made as to the admissibility of assessment rolls made by assessors under the laws of the United States, and of entries made by collectors under the same laws of payments made by the claimants of special taxes as retail dealers in sjñrituous liquors. No question is made but that the fact of such payment if properly proved would be proper evidence tending to show that the claimants had procured the liquors in question for the purpose of retailing them. And no such question could successfully be made; for the fact that a person put himself to the expense of a license as a retail dealer in liquors would be quite pertinent to show that he did so for the purpose of that avocation, intending to pursue it. The question is made solely concerning the admissibility of the evidence. The lists appear to have been made by the assessor, whose duty it was to make such assessments. If the laws of the United States did not require him to make such lists, the nature of his duty under the laws did. The same is true of the entries made by the collector. He could not properly perform his duties without keeping such accounts and making such entries as these. They were both public officers and made the entries in the course of their official du[219]*219ties. The documents appeared to have been made under the personal observation of the officers whose duty it was to make them, and to have come from the proper custody. In 1 Greenleaf on Evidence, § 483, it is laid down that books kept by persons in public office, in which they are required — whether by statute or by the nature of their office — to write down particular transactions occurring in the course of their public duties and under their personal observation, are generally admissible in evidence. In the next section, books of assessment of public rates and taxes are enumerated among the proper instruments of this class of evidence. No cases or text-books are cited that are contrary to this rule, and it seems to be well enough founded. This evidence was fairly within the rule and was properly admitted. This disposes of all questions made in Rowe’s case.
The marking of the liquors claimed by Caine to him at Platts-burgh via Burlington while he lived in Burlington and kept a grocery there, in connection with the quantity of the liquors and the fact that they were at Burlington, tended to show that the liquors were got for unlawful and not for innocent purposes, and was sufficient to be submitted to the jury upon the trial of the claim to the liquors. The case of Com. v. Madden, 1 Gray, 486, cited to the effect of the fact that Caine kept a grocery, recognizes that evidence of such fact is admissible in connection with other evidence, and only decides that alone it is not sufficient to warrant a conviction.
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The opinion of the court was delivered by
Wheeler, J.
So far as the motions to quash in each of these cases are founded upon matters not apparent upon the face of the proceedings and no trial of fact has been had upoir them without objection, they are not of any effect to raise any question upon such extraneous matters. The rule appears to have been established early that all such matters must be alleged in a traversable form by plea unless some statute expressly provided otherwise; and that rule appears to have been uniformly followed where any question has been made about the method of procedure. Barrows v. McGowan, 39 Vt., 328. These motions to that extent are disposed of upon this ground, but without intending to imply that any of the objections would have been fatal if raised by plea.
All parties seem to have waived this question as to so much of the motion in the case of Kelly, Carr and Blanchard as sets forth an alteration of the complaint by the state’s attorney, and evidence appears to have been received without objection, from which the court found the facts upon that subject. This course brought all questions arising upon the facts so found, before that court, and they were so disposed of there as to be revisable here. What the state’s attorney did in that behalf, however, did not alter the complaint in fact or effect. He defaced it, but the defacement of it, although done with pen and ink, did not, when done, vary it at all, [217]*217but left it as it was before. See Bellows v. Weeks, 41 Vt., 590. The decision of the county 6ourt upon these facts, as to that part of the motion, appears to have been correct.
So far as the motions were founded upon matters apparent upon the face of the proceedings, they properly and regularly raised all questions arising upon such matters.
The objection that the complainants did not appear to have been legal voters in the city of Burlington, as often as made in either case, was not founded upon fact* In Kelly’s case, where there is the most color for this objection, the complaint, after the direction to the justice, treating the word “ and” — which is in a line by itself and not at all connected with any other words — as sur-plusage, proceeds to state that “ come legal voters in the city of Burlington and complain,” etc.: to which the signature of three persons is appended. This is a plain statement that these persons come and complain as legal voters, and clearly implies that they are such. This is as much as the statute requires, and is sufficient.
The same is true of the objection urged that the persons sworn to the complaints do not appear to be those who signed the complaints. The certificate of the oath in each case contains the names of the persons sworn and the names are similar to those signed to the complaints, although in some instances the initials of the given names are used in one place and a part or the whole of those names in the other. In each certificate the persons are described as those above named, and this reference is to the complainants and to no others and amply shows that the complainants made oath to their complaint.
The description of the places to be searched, in each case, left no discretion to the officer in respect to what places he would search. The warrants directed him in that respect, .and did not leave Mm to direct himself. This seems to be sufficient in such cases.
The statute points out no particular mode for summoning claimants. In these cases the officer returned that he summoned them, without specifying how he did it. They appeared and objected that the returns did not show sufficient service in that respect. In cases of this kind the process is returnable forthwith. If upon [218]*218return it appeared to have been served improperly or insufficiently, further service could be required by the court and made before proceeding with the prosecution. If no service should be made upon a claimant, he could voluntarily appear and make claim, and if he should do so the proceedings would be as well founded upon his voluntary claim as upon the most perfect service. These claimants, after they had objected to the return of service, remained before the court and made claim, and the proceedings thereafter were well founded upon the voluntary stay of the claimants. There was no occasion for any further service, when the claimants voluntarily staid in court upon that already made. And there is no occasion now to decide whether the service would have been sufficient to bind the claimants in any way if they had left the proceedings to stand upon the strength of the return and had not made any claim.
This disposes of all the questions arising upon the motions and of all questions made in Kelly’s case.
In each of the. other cases question is made as to the admissibility of assessment rolls made by assessors under the laws of the United States, and of entries made by collectors under the same laws of payments made by the claimants of special taxes as retail dealers in sjñrituous liquors. No question is made but that the fact of such payment if properly proved would be proper evidence tending to show that the claimants had procured the liquors in question for the purpose of retailing them. And no such question could successfully be made; for the fact that a person put himself to the expense of a license as a retail dealer in liquors would be quite pertinent to show that he did so for the purpose of that avocation, intending to pursue it. The question is made solely concerning the admissibility of the evidence. The lists appear to have been made by the assessor, whose duty it was to make such assessments. If the laws of the United States did not require him to make such lists, the nature of his duty under the laws did. The same is true of the entries made by the collector. He could not properly perform his duties without keeping such accounts and making such entries as these. They were both public officers and made the entries in the course of their official du[219]*219ties. The documents appeared to have been made under the personal observation of the officers whose duty it was to make them, and to have come from the proper custody. In 1 Greenleaf on Evidence, § 483, it is laid down that books kept by persons in public office, in which they are required — whether by statute or by the nature of their office — to write down particular transactions occurring in the course of their public duties and under their personal observation, are generally admissible in evidence. In the next section, books of assessment of public rates and taxes are enumerated among the proper instruments of this class of evidence. No cases or text-books are cited that are contrary to this rule, and it seems to be well enough founded. This evidence was fairly within the rule and was properly admitted. This disposes of all questions made in Rowe’s case.
The marking of the liquors claimed by Caine to him at Platts-burgh via Burlington while he lived in Burlington and kept a grocery there, in connection with the quantity of the liquors and the fact that they were at Burlington, tended to show that the liquors were got for unlawful and not for innocent purposes, and was sufficient to be submitted to the jury upon the trial of the claim to the liquors. The case of Com. v. Madden, 1 Gray, 486, cited to the effect of the fact that Caine kept a grocery, recognizes that evidence of such fact is admissible in connection with other evidence, and only decides that alone it is not sufficient to warrant a conviction.
The evidence, that one Slaimant kept the Stanton House, which was supplied with conveniences for selling liquors, was a part of the same offer, and was admissible for the same reasons that the fact of keeping a grocery was.
The testimony concerning a former seizure at that same house was also a part of the same offer, and was proper evidence if the house was kept by the claimant at the time of the seizure. It was opposed only by a general objection to the whole offer, without any claim that he did not thpn keep the house. The admission of the evidence, under these circumstances, does not affirmatively show error, and cannot, by the usual rule as to intendment, be held here to have been error.
[220]*220The claimant, Rowe, requested the court to instruct the jury that he had a right by law to keep and furnish members of his family with intoxicating liquors, and that boarders for such purpose were members of his family, and that such right would extend to them. The court refused this request. The case shows that he was the keeper of the Stanton House, and kept a large number of boarders, and entertained travelers and guests; but does not show that he had any family according to the common meaning, nor that the boarders stood in any relation to him other than that implied from the fact that they boarded at the Stanton House, which he kept. If the request would have been well founded in law upon facts that would warrant the application of the rule it contains, the facts in this case would not warrant such application, and the request was properly refused.
The verdicts were a proper determination of the issues joined upon a traverse of the allegations of the respective claimants, and were a sufficient foundation for a judgment of condemnation of the liquors. The taxation of costs was also proper, either under the general laws as to costs, or under the act of 1870, on that subject, which related to the remedy, and applied to proceedings had in any case after its passage.
Exceptions overruled, and judgment that liquors, and vessels containing them, be forfeited to the use of the city of Burlington, to be delivered to the city agent.