44 Vt. 662 | Vt. | 1871
This was an action on the case, brought to recover the penalty given by sec. 31, of chap. 20, of the General Statutes, for transporting Augusta Jackson, a poor and indigent person, from Danville to St. Johnsbury.
The first objection made to the plaintiff’s right of recovery was on account of an alleged misdescription of the person transported by the defendant. It was necessary for the plaintiff to aver in his declaration who the person was that was transported, so that the defendant might know the particular charge he was called upon to answer to, and this averment, being a material one, must be substantially proved. Whenever an objection of this kind is made, it may be replied that the description given is the one by which the person is generally known, and if this issue is found in favor of the description given, it is good even though the legal name of the person may be different from the description given. In Williams v. Burgess, 3 Taunton, 127, it was held, in a penal action, if a parish is described by its popular and well known name, it is well enough, though that is not the name of consecration. And where there is a conflict of evidence upon this question, or as to the identity of the person to whom the evidence applies with the one described in the pleadings, it is a proper mat-tar to be submitted to the jury, as was done in Litchfield v. Farmington, 7 Conn., 100. But here the exceptions state that she was known and called Augusta Jackson, her maiden name, and the name by which she was described in the declaration, by the defendant and others in that vicinity, and that it was not generally known that she was married. We are to understand by this language that there was no conflicting testimony on those questions, and that the name by which she was described in the declaration was the one by which she was generally known, and the one by which she was known by the defendant. The defendant then was not misled by this description, but, on the contrary, the plaintiff gave just such a description of her as the defendant would have given, if she was known and called by him by the same name. Upon principle and authority, the court were right in holding that the defendant could not defeat the right of recovery upon the
The first, second and third objections made to the deposition offered in evidence were of the same character as the one we have considered, and, we think, were properly overruled.
The fourth objection relates to the sufficiency of the notice given to the defendant of the taking of the deposition. By sec. 6, ch. 36, of the General Statutes, the party wishing to take the deposition of a witness was required to either cause personal notice to be given by the magistrate taking such deposition, to the adverse party, or a citation to be issued by a justice, to be served in the same manner as a writ of summons. The law of 1864, No. 47, altered the previous law so far as to permit the citation to be served on the adverse party to be signed by a justice, notary public or master in chancery, but did not change the manner of service. The manner of service of writs of summons is prescribed by sec. 21, ch. 33, of the General Statutes. This section provides that such writs shall be served by delivering to the defendant a true and attested copy of the same, with the officer’s return thereon, or leaving such copy at the house of his usual abode, &c.
The citation to take this deposition was signed by Elisha May as notary public, who was at the time counsel for the plaintiff in the suit in which the deposition was taken to be used, and was directed to any sheriff or constable in the State, or to John Emerson, an indifferent person, and the service was made by said Emerson by delivering a true and attested copy of the summons to the defendant, with his return thereon endorsed, and attested by him as an indifferent person. Was this such a service of the citation as the law requires ? Sec. 3-5 of chap. 31 of the General Statutes provides that where it shall be made to appear to a justice that any precept returnable to him may fail of service for the want of a proper officer seasonably to be had, he may authorize a suitable person to serve such precept. To justify the authorization of a person to serve a precept, there arc two subjects upon which the justice must exercise his discretion and judgment: — fiirst, if the precept will fail of service unless such authorization is made, and second, upon the person whom he will authorize.
The fifth objection related to the competency of the person who was authorized and made the service of the citation. We aré agreed that the deposition should have been excluded under the objection already noticed, and the sixth, and have not considered or decided the question arising under this.
The sixth objection taken by the defendant to the admissibility of the deposition was for the reason that the notice did not name any authority before whom to appear to attend the taking of the deposition. The question presented by this objection is one of considerable practical importance, and we are not aware that it has ever before been directly before this court; although it seems to have been virtually decided in Henry v. Huntley, 37 Vt., 316. The objection taken to the notice in that case was that the notice was to take the deposition before Judge Brockway, and that it was taken before another person and officer not named in the notice. Judge Aldis, after saying that they do not decide whether it i.s or is not necessary to insert the name of the magistrate in
The only remaining exception is to the charge to the jury. The case is not so fully stated, in all particulars, as to enable us to determine with certainty, just what evidence the charge was predicated upon. We have to assume that all that appeared upon the trial in relation to what transpired between the overseer of the poor of the plaintiff town and the defendant is detailed in the exceptions. From the exceptions it' appeared that the defendant knew, when he took the pauper from St. Johnsbury to his home in Danville, that she had been chargeable to St. Johnsbury; that he took her away by consent of the overseer of St. Johnsbury; and
Judgment reversed, and cause remanded.