*666The opinion of the court was delivered by
Royce, J.
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 *667ground that he had discovered she had a husband whose name she was legally entitled to bear.
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. *668And it has been determined in ex parte Kellogg, 6 Vt., 509, Kellogg v. Paris & Paris, 10 Vt., 261, and in Ingraham v. Leland & Edmunds, 19 Vt., 304, that the justice, in exercising such discretion and judgment, acts judicially and not ministerially, and hence that he is disqualified from the .performance of any such act when he shall have been of counsel, under sec. 22, chap. 31, of the General Statutes. The case finds that the notary, who signed the citation and authorized Emerson to servo it, was at the time counsel for the plaintiff in the suit in which the deposition was taken to be used, and the same rule which disqualified a justice to make such authorization disqualified him. The law upon the subject of notice to the adverse party was not changed or altered by the act permitting notaries to sign such citations, and no authority was conferred by the act to the notary to authorize any one to serve them. In the absence of any such authority, his power over the subject would be limited by the general law, which provides the mode and manner of giving such notice. Hence -wo think this objection was well taken, and- the deposition should have been excluded for the want of any legal notice to the defendant of the intention of the plaintiff to take it.
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 *669the notice, says: “But we all agree that when it is inserted the party taking the deposition is not at liberty to go to another mag^ istrate to take the deposition.” It is difficult to see why, if the. notice would have been good without the name of Judge BROCK-way in it, the insertion of his name wmfld vitiate it;- for, if all that is required is, a literal compliance with the statute, a notice which is certain as to time and place would be good, notwithstanding it contained unnecessary matter. The form .given for the notice evidently contení] latcd that the name of the authority before whom the deposition was to be taken should be inserted. And the reasons assigned by the court, in the case above cited, why a. party should not be permitted to go to any other magistrate to take the deposition than the one whose name is inserted in the notice, demonstiates the propriety and justice of having the name of the officer who is to take the deposition inserted in the notice. The knowledge of this fact may influence the conduct of the party against whom the deposition is taken to be used From the known character of the officer he may elect to trust him to take the deposition without an appearance upon his part. And if the officer is unknown to him, or known to be prejudiced or incompetent, he should have such notice as to be able to acquaint himself with the character of the officer in the one case, and to take all proper advantage of his incompetency or prejudice in the other. And although the statute does not in terms require that the name of the officer who is to take the deposition should be inserted in the notice, we think the spirit and intention of the statute, taken in connection with the form prescribed, do require it.
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 *670the only conflict that there seems to have been in the testimony was as to the terms upon which he took her — the plaintiff’s evidence tending to show that if the overseer would consent to his taking her to his house he would take good care of her, and that she should be no expense to St. Johnsbury. The defendant’s evidence tended to show that he did not so agree. The defendant took the pauper to his house in Danville, and soon after carried her back to St. Johnsbury and left her. The court charged the jury, among other things, that if the relation she sustained toward St. Johnsbury was not changed by what took place between thó overseer and the defendant, he would not be liable for bringing her back. The portion of the statute upon which this suit is brought is highly penal, a.nd must be construed by the rules applicable to the construction of penal statutes. In Barnet v. Ray et al., 33 Vt., 205, the plaintiff made a contract with the defendant Ray to take the paupers from Barnet to his house in Peacham and keep them there three months ; and the court held that if they had no settlement in Barnet, that if they had become chargeable there, and they contracted to have them kept in Peacham while they were so chargeable, their legal relation to Barnet and the legal liability of that town to support them was not thereby changed, and that, if, at the expiration of the contract they were still in need of support, Ray would have the right to convey them back to the overseer of Barnet, and would not be liable though he knew the result would be to make that town liable for their future support. And Judge Redfield says, in the opinion : “And perhaps he might have taken them back at a subsequent period if there had been no change in the relation existing between all the parties, except such as naturally resulted from lapse of time.” Admitting the facts in relation to the agreement made between the overseer and the defendant to be as the plaintiff claims them, that case is analagous to this, except in that case the contract as to the time Ray was to keep the paupers was certain ; here the time seems to have been left indefinite. It might have been claimed as of perpetual obligation, or as being determinable at the will of either party; but in this action the defendant was entitled to the construction which would be most beneficial to himself, and *671this construction would be the one which allowed him to determine the contract when he saw fit. So that if the agreement was as the plaintiff’s evidence tended to show, the relations of the pauper to the town of St. Johnsbury were not so changed thereby as to subject the defendant to the penalty given by statute for conveying her back to that town before she had' become chargeable to any other town, and while she was in need of relief. But by the change, the liability of the defendant was made to depend upon the question of whether the relation of the pauper to the town had been changed by what took place between the overseer and the defendant. In this we think there was error, because there was no evidence in the case that tended to show that the legal relations of the pauper to the town had been changed.
Judgment reversed, and cause remanded.