Clark, J.

“If any party, after giving notice to the adverse party as aforesaid, neglects or refuses to take a deposition, such adverse party may recover twenty-five cents a mile for actual travel of himself or his attorney to attend the same, by action on tbe case, unless seasonably notified in writing, signed by tbe party giving sucb notice, that sucb deposition will not be taken.” G. L., c. 229, s. 10.

The penalty is given only when the attendance is by the party or bis attorney at law. A recovery may be bad for the actual travel of the party himself or bis attorney, but there is no provision for a recovery for the travel of an agent who is not an attorney. Section 4 of the same chapter provides that when the adverse party resides out of the state, or more than twenty miles from the place of caption or from the party proposing to take the deposition, notice may be given to bis agent or attorney; and section 5 declares that “ No person shall be deemed an agent or. attorney for this purpose, unless he has indorsed the writ or the summons to be left with the defendant in the cause, or appeared for bis principal before the court, justice, referees, or arbitrators, where the action is pending, or given notice in writing that be is such attorney or agent.” G. L., c. 229, s. 5. Gove was not the agent or attorney of the party within the terms of this statute, and be was not an attorney at law. If the party bad resided out of the state, a notice to Gove of the taking of the deposition would have been insufficient, and a notice to him that the deposition would not be taken would have been equally ineffectual. Gove was not the attorney of the party within the meaning of Gen. Laws, c. 229, s. 10, and there should be

Judgment for the defendant.

Carpenter, J., did not sit: the others concurred.