V • 10 . THE LAW OF TAXATION. EZRA A. BOURNE VERSUS CITY OF BOSTON. R E P 0 R T OB' THE CASE OF EZRA A. BOURNE VERSUS THE CITY OF BOSTON, TRIED IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS, AT DEDHAM, MARCH, 1853. RETORTED BT WILLIAM ROGERS, COUNSELLOR AT LAW. / BOSTON: 1 8 5 3 . EASTBURN’S PRESS. 20, /?°Y NOTE. A report of this case, involving as it does the subject of taxa¬ tion, and the law of domicil applicable thereto, was thought likely to be of much interest to the public. The reporter attended the trial, and took full minutes ; and this report is believed to present an accurate statement of the case. The importance of the prac¬ tical points decided, both of law and evidence, seemed to ren¬ der it desirable to make a more minute report of the whole pro¬ ceedings than is usual. Digitized by the Internet Archive in 2019 with funding from Duke University Libraries https://archive.org/details/reportofcaseofezOObour SUPREME JUDICIAL COURT. NORFOLK SS. FEBRUARY TERM, 1853. Before Hon. B. F. THOMAS, Justice. EZRA A. BOURNE y. CITY OE BOSTON. Edward D. Sohier, ) Charles A Welch ( Counsel for the Plaintiff. P. W. Chandler, City Solicitor, for the Defendant. This was an action of contract, brought by Ezra A. Bourne, described as of Newport, in the State of Rhode Island, gentleman, against the City of Boston, wherein the plaintiff alleged that the defendant owed him $3,571.50, for money received by the defendants to the plaintiff’s use. The writ was dated November 29, 1851, and was made returnable to the Court of Common Pleas for the County of Norfolk, on the third Tuesday of February, 1852. The case was re¬ moved to the Supreme Judicial Court, upon the defendant’s affidavit, in the usual form, April 29, 1852. The plaintiff’s bill of particulars was as follows : 2 “ City of Boston to E. A. Bourne, Dr. “ 1st. To amount of taxes upon personal property and poll tax illegally assessed upon him and paid by him under protest, November 29, 1851, by the hand of E. D. Sohier, $3,571.50.” The answer of the city admitted that the said sum had been received by the city, and was paid under protest; but denied that the city owed the plaintiff the same or any part thereof; or that the city received the same or any part thereof to the plaintiff’s use ; or that the same or any part thereof was paid for taxes illegally assessed to him; and it alleged that the said money was paid by the plaintiff to the defend¬ ant for city of Boston and county of Suffolk taxes, legally assessed to him upon his personal property and for his poll tax. The trial of the case commenced at Dedham, in Norfolk county, on the 2d day of March, 1853. Mr. Welch opened the case for the plaintiff. He stated to the jury, that the tax which Mr. Bourne sought to recover back, consisted of three classes; 1st, his poll tax and the tax upon his own personal property; 2d, the tax upon the per¬ sonal property of his wife, held by him in trust ; and 3d, the tax assessed upon him as guardian and trustee for the Miss Thorndikes, the daughters of his wife by her former husband. The taxes upon real estate situated in Boston were, of course, properly assessed in Boston. But in relation to the taxes upon his own personal property and that of his wife, those could only be assessed to him in the town where he was an inhabitant on the first day of May, 1S51 ; and the same rule applied to the tax upon the personal property held by him as guardian of the younger Miss Thorndike. In relation to the personal property held by Mr. Bourne as trustee of the young lady who was of age on the 1st day of May, a still further question arose ; and he should maintain that for the portion of the tax assessed thereon, Mr. Bourne was not 3 legally taxed, wherever his residence might have been. The personal property of a minor under guardianship was, by the Revised Statutes, to be assessed to the guardian, in the town of which he was an inhabitant; but personal property held in trust, for the benefit of a person who was not a married woman or a minor, was to be assessed to the person for whose benefit the property was held in trust, in the place where such person resided. This part of the tax should not have been assessed to Mr. Bourne in any event. These taxes having been, as the counsel contended, ille¬ gally assessed upon Mr. Bourne, he was compelled to pay them, to avoid having his person arrested or his property taken by process of law ; and he did pay the same under protest. He now brought this action to recover back the amount. The main question for the jury now to determine would be, was Mr. Bourne an inhabitant of Boston, for the purpose of taxation, on the 1st day of May, 1S51. The question where he did reside was of secondary importance. If he was not an inhabitant of Boston, if that was not his legal domicil, he was certainly not taxable in Boston. But if he was an inhabitant of any other place, he could not be an inhabitant of Boston. A person can have but one such residence, at any particular time, as will render him liable to taxation. Our courts have decided that, in a doubtful case upon a question of residence, a mere declaration of an inten¬ tion to reside in one town rather than in another, will be sufficient to turn the scale. An election to be taxed in one town rather than in another, has the same effect. If a person has a domicil in one place, that domicil continues until he has acquired a domicil in some new place. He should main¬ tain that another place, and not Boston, was the place of Mr. Bourne’s residence on the 1st day of May, 1851. This would appear from the facts of the case, which he would briefly state. In 1847, and for many years previous, Mr. Bourne resided _in Boston, in the house of his wife in Pemberton Square, the year round, except for a portion of the year, which he spent in a visit to his farm on the Eastern shore of Maryland. In 4 1848, he moved to Brookline in this county, in the latter part of April, and remained until November of the same year. When he removed, he gave notice to the assessors of Boston and of Brookline, that he had changed his place of residence from the former to the latter place. He was taxed in Brook¬ line that year, and paid his tax; and he was not taxed in Boston. In 1S49, he again went to Brookline in April, and returned in October or November; was taxed and paid his tax in Brookline, and was not taxed in Boston. In 1849, he hired a house in Newport, on a lease of five years. In April, 1850, he removed to Newport, in the State of Rhode Island, and notified the assessors of Newport. He was taxed that year in Newport, paid his taxes there, and was not taxed in Boston. He returned to Boston in the fall. During his ab¬ sence, he left his house in Boston under the charge of his domestics. He left orders with his trades-people to supply his domestics with provisions and groceries. He had pro¬ perty invested in Boston, and he did not change his invest¬ ments when he removed. In April, 1851, he again removed to Newport. His daughter-in-law, Mrs. Rice, came on from Maryland, where she resided, to Boston, in the spring of 1851, and Mr. Bourne gave her the use of his house while she was here. She was about to be confined, and was anxious to be under the care of Dr. Warren, who had always been the family physician. Mr. Bourne left his carriage in Boston, and allowed Mrs. Rice to make use of it when she wished to ride out, and did everything in his power to make her comfortable. He and Mrs. Bourne then paid their usual spring visit to their farm on the Eastern shore of Maryland. Mrs. Bourne returned first, and was with her daughter during the most dangerous period of her illness. Mr. Bourne after¬ wards came on from Maryland, and resided at Newport, where Mrs. Rice and the rest of the family joined him when she had sufficiently recovered, and they spent the summer there. He was taxed that year in Newport, and paid his taxes there. Mr. Welch then put into the case what were supposed to 5 be copies of the tax bills paid by Mr. Bourne under protest, the originals having been lost. These were three, and were dated October 1, 1851. 1. Ezra A. Bourne. Poll,.1.50 Personal estate or income, - - 875.00 $876.50 2. Ezra A. Bourne, trustee of Mrs. M. M. Bourne. Real estate, - 175.00 Personal estate or income - - 875.00 $1050.00 3. Ezra A. Bourne, trustee and guardian of the Misses Thorndike. Real estate, - 366.10 Personal estate or income, - - 1820.00 $2186.10 He also put in the summonses thereon, issued in the usual form, and dated November 20, 1851. It was admitted that all of the above taxes had been paid by Mr. Bourne, under protest, except those on real estate. Mr. Welch then put in the answers of George E. Head, one of the assessors of the city of Boston, to certain inter¬ rogatories proposed by the plaintiff, as follows :— 1. A tax was assessed upon Ezra A. Bourne upon personal property in 1847, and, from the books of the treasurer of said city, said tax appears to have been paid. This, I believe, was the last tax on personal property, assessed upon Mr. Bourne, prior to July, 1851. 2. I find on the files in the assessors’ office for 1848 and 1849, letters, of which the copies, dated in those years, and annexed to the interrogatories, are correct. I do not find let¬ ters, dated in 1850 and 1851, of which papers purporting to be copies are annexed to the interrogatories, and therefore am unable to answer in regard to them. The letters of 1848 6 and 1849 were addressed to the permanent and assistant assessors of the city of Boston, and must have been received by them. The following were the copies annexed to the said inter¬ rogatories :— Brookline, Mat 1, 1848. To the permanent and assistant Assessors of the City of Boston: Gentlemen,— This is to give you notice, that, on the 29th ult., I removed together with my whole family, from my house in Boston to my house in Brookline, where I am domiciliated, and a citi¬ zen according to law, on this first day of May, 1848, and where I propose to reside and pay all my taxes for the future, excepting upon real estate in Boston, as trustee, for which only shall be legally liable. Respectfully, Your obedient servant, E. A. BOURNE. Brookline, Mat 1, 1849. To the permanent and assistant Assessors of the City of Boston: Gentlemen,— This is to give you notice, that I have removed to my house in Brookline, where I am domiciliated and a citizen, according to law, on this first day of May, 1849, and where I propose to reside, and pay all my taxes for the future, ex¬ cepting upon real estate as trustee and guardian, for which only I shall be liable, as follows, viz.:— House No. 19 Pemberton Square. Do. do. 5 Otis Place. Do. do. 6 do. Do. do. 7 do. Do. do. 6 Winthrop Place. Respectfully, Your obedient servant, E. A. BOURNE. (Signed) 7 Gentlemen,— I would give you notice that I am liable to be taxed, as trustee and guardian, upon the same real estate as last year, in the city of Boston. I shall be domiciliated in my house out of this city, on or before May 1st, 1850, where I shall be taxed upon my personal property, for the future, as hereto¬ fore. Respectfully, Your obedient servant, E. A. BOURNE. To the 'permanent and assistant Assessors of the city of Boston. April 26, 1850. I would give you notice that I am liable to be taxed, as trustee and guardian, upon the same real estate as last year, in the city of Boston. I shall be domiciliated in my house, out of this city, on or before May 1, 1851, where I shall pay all taxes upon my personal property, for the future, as heretofore. Respectfully, Your obedient servant, (Signed) E. A. BOURNE. To the permanent and assistant Assessors of the city of Boston. April 26, 1851. The following witnesses were then called, sworn, and ex¬ amined, on behalf of the plaintiff :— Charles Stearns. —I reside in Brookline, in Norfolk Coun¬ ty. I was, in 1848, 1849, 1850, and 1851, an assessor for the town of Brookline. I know the plaintiff, Ezra A. Bourne. He was assessed as an inhabitant of Brookline in 1848 and 1849. I found him in Mr. Francis’s house, in the north part of the town, when I went to assess the taxes. It was on the 1st day of May, 1848. I saw him myself. He gave us notice, in April, of his intention to reside in Brookline. I 8 saw him there at other times. He was also assessed in 1849. He paid his taxes in each of those years. I live within three quarters of a mile of the house in which he lived in Brook¬ line. I saw him frequently. Cross-examined .—I could not say what day in April he gave notice to the assessors. It was by letter. The letter was dated in Boston. I looked for it the other day, and could not find it. This letter stated that he intended to re¬ side in Brookline, and wished to be taxed there. I found him, on the 1st of May, in Mr. Eben. Francis’s house. It was in the north part of the town, between the mill dam road and Charles River. It is remote. No road passes by it. The land was taxed to Mr. Francis ; the house to Mr. Bourne. His tax, in 1848, was $136.55. His tax on the house was about $6. His whole tax, as trustee and guardian, was $136.55. I cannot tell what the items were, as I did not take them down. I don’t recollect whether any return of stocks were made from the officers of corporations to the assessors of Brookline. We doomed him. Otis Withington .—I have been collector of Brookline since March, 1849. Mr. Bourne paid me taxes in 1S49. I left his bill at the house owned by Mr. Eben. Francis. I did not see him then. He came to my house and paid the taxes, just before the 1st of October. I was not collector in 1848. Cross-examined. —The amount of Mr. Bourne’s tax, in 1849, was $147.50. His tax as trustee was $70 ; as guardian, $50. He was taxed for his poll, $1.50 ; for real estate, $6 ; personal estate, $140. I do not know whether he requested to be taxed on his house. I had no tax against him in 1850. The house was remote, on the banks of Charles River. Direct resumed. —The house was just off cf the mill dam road. An avenue leads to it. It is a large house. Cross-examined .—The house might rent for $400 or $500 this year; it might for more. I should think $150 would be a cheap rent. Direct resumed. —Another family lived in the part called 9 the farm house. One part is called the farm house, and the other part the mansion house. A farmer carried on the farm. Charles Stearns, recalled by the defendant. Mr. Bourne’s whole tax was less in 1848 than in 1849. We did not tax him in 1850. I did not find any body in the house in 1850. Mr. Welch then put in the following depositions :— DEPOSITION OP NATHAN B. HAMMETT, OF NEWPORT, R. I. Questions by the plaintiff’s counsel. 1. What town office did you hold in the year 1850? what in the year 1851 ? Ans. I was one of the assessors of taxes, and one of the town auditors, in the years 1850 and 1851. 2. Do you know the plaintiff in this suit, Mr. Ezra A. Bourne ? Ans. He saith that he is acquainted with the said Mr. E. A. Bourne. 3. Whether or not was the said Bourne an inhabitant of the town of Newport during the years 1850 and 1851, or either of them ? Ans. The said Ezra A. Bourne was an inhabitant of said Newport, in the years 1850 and 1851. 4. Whether or not was any tax assessed upon him, as upon personal property or his poll, during said years, or either of them ; and if yea, did he or not pay the same ? Ans. Mr. Bourne was assessed a personal property tax, on the sum of ten thousand dollars, in the year 1850, and a personal property tax on thirty thousand dollars, in the year 1851. The tax book shows that he paid the said taxes. Cross interrogatories by the defendants' counsel. 1. How long have you known the plaintiff, and how long has he, to your knowledge, been a resident of Newport? 2 10 Ans. I first became acquainted with him in the year 1850. I cannot tell how long he has been a resident of Newport. 2. At what time of the year are taxes assessed upon the inhabitants of Newport ? Ans. In August of each year. 3. At what time is the residence of individuals fixed to render them liable to be taxed, and at what time is their res¬ idence taken for the purpose of assessing them ? Ans. Whenever the assessors of taxes ascertain that a person has become a resident of the town. There is no par¬ ticular time, except that the person resides here, previous to the tax being ordered. 4. If you answer to the 4th interrogatory that the plaintiff did pay a tax in Newport, either in 1850 or 1851, or during both of these years, please annex copies of his tax bills to your answers. If you have not his tax bills or copies, please annex extracts from your tax books, showing the amount of personal property for which he was taxed in Newport in any capacity, and the amount of taxes he paid therefor. Ans. I can only say that he was taxed on ten thousand dollars for the year 1850, and thirty thousand for the year 1851. The tax collectors collect the taxes, give receipts, and keep the books. 5. State the number of years the plaintiff has been taxed in Newport, the amount for which he has been taxed in each year, and the amount of taxes he has paid in each year. Ans. Mr. Bourne has been taxed three years in this town ; on ten thousand, personal property in 1S50 ; on thirty thou¬ sand, personal property in 1851 ; on thirty thousand, person¬ al property in 1852. The tax book shows that he paid thirty-two dollars for 1S50, eighty-seven dollars for 1851, and one hundred and twenty-three dollars for 1852—the rate of taxes having been increased. Additional direct interrogatory by the plaintiff. 5. Whether or not did you receive a notice, of which the annexed is a copy, and, if so, when ? 11 (Copy.) Newport. April 30th, 1850. Gentlemen,— This is to give you notice that I have become an inhab¬ itant of Rhode Island, and a citizen of Newport, and that it is my intention to make this my permanent residence, and it is my wish to pay my tax here upon my personal property. I occupy a small house on Kay street. Hoping and trusting you will exercise your power with clemency and moderation, I am, with great respect, Your obedient servant, E. A. BOURNE. To the Assessors of the town of Newport. Ans. He says that he received such a notice, and believes it was about the time of the date. DEPOSITION OF OLIVER READ. Interrogatories by the plaintiffs counsel. 1. What town office did you hold in the year 1S50 ? what in the year 1851 ? Ans. I was collector of taxes for the year 1850. . I held no office in the year 1851. except one of the investing com¬ mittee of the school fund. 2. Do you know the plaintiff in this suit, Mr. Ezra A. Bourne ? Ans. I know the said Ezra A. Bourne. I called at his house when collecting taxes ; and Mr. Bourne afterwards came to my office, and paid me his taxes, himself. 3. Whether or not was the said Bourne an inhabitant of the town of Newport during the years 1850 and 1851, or either of them ? Ans. I should think he was. 4. Whether or not was any tax assessed upon him, as upon personal property or his poll, during said years, or either of them ; and if yea, did he or not pay the same ? Ans. In the year 1850 there was a tax of ten thousand 12 dollars assessed on his personal property, amounting to the sum of thirty-three dollars; which Mr. Bourne paid to me on my receipt to him for the same. Cross Interrogatories by the defendants' counsel. 1. How long have you known the plaintiff, and how long has he, to your knowledge, been a resident of Newport ? Ans. In the month of June or July, 1S50, Mr. Bourne was first pointed out to me. I cannot say how long Mr. Bourne has resided in Newport, but I believe that he resided here some time previously to June, 1850. 2. At what time of the year are taxes assessed upon the inhabitants of Newport ? Ans. The taxes are voted in June, and assessed in August, of each year, generally. 3. At what time is the residence of individuals fixed to render them liable to be taxed ; and at what time is their res¬ idence taken for the purpose of assessing them. Ans. Whenever a person gives notice to the proper authorities of his intention to become a citizen of this town. 4. If you answer to the 4th interrogatory that the plaintiff did pay a tax in Newport, either in 1S50 or 1851, or during both of those years, please annex copies of his tax bills to your answers. If you have not his tax bills, or copies, please annex extracts from your tax books, showing the amount of personal property for which he was taxed in Newport in any capacity, and the amount of taxes he paid therefor. Ans. I have no copy of the receipt of taxes paid by Mr. Bourne. The following is a correct transcript from the tax book of 1S50 :— Real. Personal. Paid. Bourne, E. A. SI 0,000 $33.00. The rate being thirty-three cents on a hundred dollars. 13 5. State the number of years the plaintiff has been taxed in Newport, the amount for which he has been taxed in each year, and the amount of taxes he has paid in each year. Ans. I cannot say, as I have not had the charge of the tax books since 1850, and can only say that he was taxed for that year, and was not taxed the two years previous. The sum paid in 1850 was thirty-three dollars. Additional interrogatory by the plaintiff. (The same as in Mr. Hammett’s deposition.) Ans. He saith that he knows nothing of the notice. DEPOSITION OF JAMES HORSWELL. Interrogatories by the plaintiff s counsel. 1. What town office did you hold in the year 1850 ? What in the year 1851 ? Ans. I held no office in 1850. I was collector of the town taxes in 1851. 2. Do you know the plaintiff in this suit, Mr. E. A. Bourne ? A7is. He says that he does. 3. Whether or not was the said Bourne an inhabitant of the town of Newport during the years 1850 and 1851, or either of them ? Ans. I considered him such, because he was assessed at his request. 4. Whether or not was any tax assessed upon him, as upon personal property or his poll, during the said years or either of them, and if yea, did he or not pay the same ? Ans. In the year 1851 he was assessed a personal property tax on thirty thousand dollars, and paid me eighty-seven dollars tax. Cross Interrogatories by the defendants' counsel. 1. How long have you known the plaintiff, and how long has he to your knowledge been a resident of Newport ? 14 Ans. I have known him about two years, and believe that he has been a resident for that length of time. 2. At what time of the year are taxes assessed upon the inhabitants of Newport ? Ans. The taxes are voted in June, and assessed in August. 3. At what time is the residence of individuals fixed to render them liable to be taxed, and at what time is their resi¬ dence taken for the purpose of assessing them ? Ans. Whenever the assessors of taxes ascertain that a stranger has become a resident of the town. I know of no particular length of time necessary for a person to claim his residence here before being taxed. If he came here in September, he would not however be assessed and taxed un¬ til the following year. 4. If you answer to the 4th interrogatory that the plaintiff did pay a tax in Newport either in 1850 or 1S51, or during both of those years, please annex copies of his tax bills to your answers. If you have not his tax bills or copies, please annex extracts from your tax books, showing the amount of personal property for which he was taxed in Newport in any capacity, and the amount of taxes he paid therefor ? Ans. I keep no copies of tax receipts or tax bills. The amount is set down in a tax book, and is marked as follows : Beal. Personal. Paid. Bourne E. A. $30,000. SS7 00. <( This shows that Mr. Bourne was taxed eighty seven dollars on thirty thousand dollars of personal property, and that he had no real estate in this town. 5. State the number of years the plaintiff has been taxed in Newport, the amount for which he has been taxed in each year, and the amount of taxes he has paid in each year. Ans. I cannot say except as regards the year 1851, when I was collector of taxes. Mr. Bourne paid in that year 15 eighty seven dollars tax, assessed on him for thirty thousand dollars of personal property. Additional interrogatory by the plaintiff. (The same as in Mr. Hammett’s deposition.) Ans. I have no knowledge of that notice. DEPOSITION OF BENJAMIN B. HOWLAND. Interrogatories by the plaintiff. 1. What town office did you hold in the year 1850 ? What in the year 1851 ? Ans. I was town clerk in the years 1850 and 1851. 2. Do you know the plaintiff in this suit, Mr. Ezra A. Bourne ? Ans. I am not personally acquainted with him to my knowledge. 3. Whether or not was the said Bourne an inhabitant of the town of Newport during the years 1850 and 1851, or either of them ? Ans. I suppose that he was, because he was taxed on per¬ sonal property in the years 1850 and 1851. 4. Whether or not was any tax assessed upon him, as upon personal property or his poll, during said years or either of them, and if yea, did he or not pay the same ? Ans. There was a personal property tax assessed on him in both of the said years, and the returns made by the tax col¬ lectors on the books in my office, show that he paid the tax assessed on him for the year 1851. Cross interrogatories by the defendants ’ counsel. 1. How long have you known the plaintiff, and how long has he to your knowledge been a resident of Newport ? Ans. I do not know the plaintiff, and have no means of ascertaining his residence except from the record. 2. At what time of the year are taxes assessed upon the inhabitants of Newport ? Ans. Generally in August. 3. At what time is the residence of individuals fixed to 16 render them liable to be taxed, and at what time is their resi¬ dence taken for the purpose of assessing them ? Ans. Whenever the assessors of taxes suppose that a person has made this place his residence. 4. If you answer to the 4th interrogatory that the plaintiff did pay a tax in Newport, either in 1850 or 1851, or during both of those years, please annex copies of his tax hills to your answers. If you have not his tax bills or copies, please annex extracts from your tax books, showing the amount of personal property for which he was taxed in Newport in any capacity, and the amount of taxes he paid therefor. Ans. The following are copies from the tax books of 1850 and 1851: 1850. Real. Personal. Bourne E. A. $ 10 , 000 . $33 00. 1851. Real. Personal. Bourne E. A ("in Eng’s house,) $30,000. $87.00. Mr. Bourne was taxed thirty three dollars on ten thousand dollars in 1850, and eighty seven dollars on thirty thousand dollars in 1851. 5. State the number of years the plaintiff has been taxed in Newport, the amount for which he has been taxed in each year, and the amount of taxes he has paid in each year ? Ans. Mr. Bourne has been taxed three years. In the year 1850 he was taxed thirty three dollars on ten thousand dollars of personal property. In the year 1S51 he was taxed eighty seven dollars on thirty thousand dollars personal prop¬ erty, and in 1S52 he was taxed one hundred and twenty three dollars on thirty thousand dollars personal property. 17 Additional interrogatory by the plaintiff. (The same as in Mr. Hammett’s deposition.) Ans. I have no recollection of ever receiving any such notice. Mr. Welch then put in a lease from Mrs. Engs to Ezra A. Bourne. This lease had no date, except of the year 1849. It was acknowledged the 24th of April, 1849. It was a lease of a dwelling house on Kay street, in Newport, R. I., for four years from June 1, 1849, at the rent 4 of $200 a year, payable quarterly; the firs't payment to be made on September 1st, 1849. He also put in the following depositions : DEPOSITION OP MRS. ELIZABETH F. RICE, OF BALTIMORE, MD. Questions by the plaintiff's counsel. 1. How are you related or connected with the plaintiff in this suit ? Ans. He is my stepfather. 2. Whether or not were you in Boston in a part of the spring and summer of 1851 ? If yea when did you come, for what purpose, at what house did you stay, when did you leave, and for what place ? Ans. I was in Boston during a part of the spring and summer of 1851. I came on in April, the last of April, to be confined. I staid at my mother’s house, No. 19 Pemberton Square. I left in July of the same year for Newport. 3. What was your object in being confined in Boston? Ans. It was so as to be under the care of Dr. Warren. I preferred him because he had always been my family physi¬ cian, and understood my constitution. 4. W'hether or not was the plaintiff in Boston on the first of May, 1851, to your knowledge ? and state anything which you know in relation to his movements, and of any of his family, immediately previous to 1st of May. Ans. He was not to my knowledge. He was here in 3 18 Boston when I came on ; and the last of April he left here for Newport. Mrs. Bourne, my mother, went to Newport with Mr. Bourne the last of April. 5. When did you again see your mother, after she left in April ? Ans. I know that I saw her in June, but don’t remember whether I saw her before that. 6. How do you fix the time of your seeing her as in June ? Was it or not by her being present when you was confined ? Ans. It was by her being present when I was confined. 7. When did you again see Mr. Bourne after he left in April, and at what time ? was it or not when your child was born ? Ans. It was in June, just before the birth of my child. 8. When you went to Newport after the birth of your child, to whose house did you go ? Ans. To my mother’s house. 9. State the street and number if you know it, and who lived there besides your mother. Ahs. Kay street. I don’t know that it had a number. It was next the Jewish burying ground. Mr. Bourne and my two sisters lived there besides my mother. 10. Had you any of your own servants with you while you were in Pemberton Square, Boston ? Ans. I brought one with me, and had another one after I came. Cross interrogatories proposed on behalf of the City of Boston. 1. When Mr. and Mrs. Bourne went to Newport the last of April, as you have stated in your answer to the 4th ques¬ tion, did the house in Pemberton Square remain open as usual ? Ans. Yes. 2. When did Mr. Bourne or your mother, or either of them, return to the house after their return in June ? Ans. I don’t know. They came up in the course of the summer for a day or so ; the time I don’t know. 19 3. When did you next see Mr. Bourne after he left for Newport as you have stated ? Can you fix the day or week ? Are you confident it was not in May ? Ans. I saw him in June. I don’t remember whether I saw him before June. I can’t fix the day or week. I am not confident it was not in May. 4. When Mr. Bourne was in Boston in the summer of 1851, did he live in the house in Pemberton Square? Ans. He stopped at the house. 5. Plow long did your mother remain in the house when she returned in June? Was Mr. Bourne here as long as she was ? Ans. She remained several weeks. Mr. Bourne was not here so long. He was here only for a few days. 6. When did you leave Boston for Newport, and how long did you remain there ? Was not the house in Pember¬ ton Square left open as usual in the care of servants? Ans. I left in July, the first part of July. I staid at New¬ port till the middle or last of September. The birth of my child was on the 18th of June. I returned from Newport to Boston with Mr. and Mrs. Bourne, and remained a week or so, and then left for New York. I am not certain that Mr. Bourne returned from Newport with us in September. The house was left open as usual in the care of servants. Mr. and Mrs. Bourne joined me at New York, and we went South together. 7. Did Mrs. Bourne return to Newport after she came to Boston in September ? Ans. She did not. 8. Did not Mr. and Mrs. Bourne reside in the house in Pemberton Square during the winter of 1851-2? Did you reside with them, and have you resided with them since ? Ans. They did reside there that winter. I made a visit that winter in December of perhaps about ten days. I have not been here since until my present visit. 9. How long have Mr. and Mrs. Bourne resided in the house in Pemberton Square ? Ans. I can’t tell how many years ; about eleven years I should think. 20 10. Has it been for that length of time the family resi¬ dence in Boston ? Ans. When they have been in Boston they have always lived in this house. 11. Have they during that length of time passed most of their time in Boston ? Ans. I don’t think they have. I should think more than half their time has been passed away from Boston. 12. Where have they passed most of their time, if not in Boston ? Ans. I should say in Brookline, Newport, and Maryland. 13. What years in Brookline ? what in Newport ? what in Maryland ? Had they any residence in Brookline or Maryland, or were they merely visiting in the last named places ? Ans. Four or five years in Newport, as near as I can re¬ collect. They have made a visit to Maryland during the spring and fall of every year. The two years previous to going to Newport they went to Brookline. They had a resi¬ dence both in Brookline and Maryland. 14. Have they spent every winter in Boston ? Can you state the months when they usually resided in Brookline, Maryland, and Newport ? A?ts. I believe they have spent every winter in Boston. They went to Brookline, I think, in April of each year, and remained there until they went to the South in the fall. I can’t tell exactly the months they resided in Maryland. They left here for Newport always in April, and remained until their return to Boston or going to the South. 15. Did they go to Brookline or Maryland in the year 1851? Ans. They went to Maryland sometime in May, and about October in the fall. Further direct interrogatories proposed by the plaintiff. 1. Do you recollect seeing Mr. Bourne at any time after he left for Newport in April, 1851, till he came to Boston shortly before your confinement ? 21 Ans. I don’t think I did, but I can’t say certainly. 2. You have stated that in the fall of 1851 Mr. and Mrs. Bourne spent some time in Maryland ; when they left Mary¬ land that year, do you know whether they went to Boston or Newport ? Ans. I don’t know of my own knowledge. Ezra A. Bourne, } v. > Norfolk Supreme Judicial Court. The City of Boston. ) It is agreed that the deposition of Elizabeth F. Rice be taken on behalf of the plaintiff in the above action by A. S. Wheeler, at No. 19 Pemberton Square, this day. The same to remain open off the files for the use of either party. December 30th, 1852. (Signed) Sohier & Welch for Plaintiff. P. W. Chandler for Defeyidants. DEPOSITION OF JAMES HAMMOND, OF NEWPORT, R. I. Interrogatories by the plaintiff , s counsel. 1. Do you know the plaintiff in this suit, Mr. Ezra A. Bourne ? and how long have you known him ? Ans. I know him ; and think I have known him for two years or more. 2. Whether or not was the said plaintiff residing in New¬ port on the first day of May, 1851? and if yea, state how you know the fact of his residence. How do you remember the same ? Ans. He was residing in Newport on that day. I know that he was residing in Newport, because I received a call from him on that day. 3. At what hour or hours, and in what place or places, did you see the plaintiff on that day ? 22 Ans. I saw him in my counting room and in my store; and I believe it was in the morning, somewhere about noon. 4. Where did the plaintiff live ? in what street ? and did he occupy a house, or did he board ? Ans. The plaintiff lived in Kay street, in this town, and occupied the house. He kept house, I know. Cross interrogatories by the defendants' counsel. 1. Do you know the family of the plaintiff? Of how many persons does it consist, and what are their names ? Hus. I know the family of the plaintiff personally. I do not know their names, nor how many it consists of; it varies at different times. He has a coachman, and other servants. 2. Whether or not did you see any member of the plain¬ tiff' ’s family in Newport, on the first day of May, A. D. 1851 ? if yea, whom did you see, and where, and for how long a time did you see them ? Ans. I saw Mr. Bourne in Newport on that day, and I believe one other member of his family. I saw Mr. Bourne in the street, and at my store. I saw the other member of his family, I think, in the street and at my store. I don’t now recollect whether it was Mrs. Bourne or one of the daughters. They paid me a pretty long visit at my store. 3. For how long a time had the plaintiff been in New¬ port on the first day of iMay, 1851? State in detail how often you had seen him in Newport before that day, and at what times, and in what places. Ans. I cannot answer that question precisely. 4. If in answer to the 2d cross interrogatory you say that you saw none of the plaintiff’s family on said first day of May in Newport, state whether or not you knew where the plaintiff’s family were residing at that time. Ans. The plaintiff’s family were residing at Kay street ; they always lived there. 5. If you had any conversation with the plaintiff, at or about the time above named, about his family, or their resi¬ dence, or his own residence, please give the same, according to your best recollection. 23 Ans. I cannot say whether our conversation related to that subject or not ; knowing that he resided here in Kay street, I did not question him as to that. Additional interrogatory by the plaintiff's counsel. 5. Whether or not did you see the plaintiff after the first of May, 1851, in Newport. If yea, how often, and generally in what place or places ? and for how long, as far as you can recollect, did you continue to see him at times? Ans. 1 saw him at various times ; how often I cannot say, but very often. The places where I have seen him are either in the street or at my store. Mr. Bourne very fre¬ quently calls at my store, and also his family. I saw him and his family at different times, very often during the sea¬ son, and late in the season. DEPOSITION OF MRS. ADELINE TIRRELL. OF NEWPORT, R. I. Interrogatories by the plaintiff's counsel. 1. Where did you reside on the first of May, eighteen hundred and fifty, and the first of May, eighteen hundred and fifty-two ? Ans. I resided in Newport, in the State of Rhode Island. 2. Do you know the plaintiff in this suit, and how long have you known him ? Ans. I know him, and have been acquainted with him eight or nine years. 3. Whether or not was the plaintiff residing in New¬ port on the first day of May, eighteen hundred and fifty-one ; and if yea, whether with or without his family ? and state how you know the fact of his residence. Ans. Mr. Bourne, the plaintiff, was residing in Newport on that day ; his wife was with him. I know that fact, be¬ cause myself and daughter dined with him on that day at his house. I recollect it because it was May-day. 4. At what time or times, and in what place or places, did you see the plaintiff on that day ? 24 Ans. I only recollect seeing him at dinner, and at his house. 5. Where did the plaintiff live ? in what street ? did he occupy a house, or did he board ? and how near did you live, and how intimate, or otherwise, were you with him and his family ? Ans. He lived at his house in Kay street. He occupied his own house. I lived on Man avenue, the second house from the corner of Kay street. Mr. Bourne lived in the house next the Jews’ burying ground. We were intimate • Mr. Bourne is my brother-in-law. 6. How long did the plaintiff remain in Newport in said year of eighteen hundred and fifty-one ? Ans. He spent the summer here. I do not know how much longer he stayed. He went from here some time in the fall. 7. Whether or not was the plaintiff residing in Newport on the first day of May, eighteen hundred and fifty ? and state whether with or without his family. Ans. Mr. Bourne was residing in Newport on the first of May, 1850, with his family. I stayed at that time in his house a few days, while my house was being prepared for me. 8. Where did the plaintiff live in eighteen hundred and fifty, on the 1st day of May? in what street? did he board, or occupy a house with his family ? and if the latter, was it the same house he occupied in May, eighteen hundred and fifty-one ; and does he or not occupy said house now ? ^4ns. He was living in Newport on that day, in his own house ; his family was with him. He occupied then the same house that he does now. 9. Do you know the distance between Boston and New¬ port ? and if yea, state the same. Ans. I believe it is about seventy miles, but am not sure. 10. Do you or not know what were the public modes of conveyance between Boston and Newport on the first day of May, eighteen hundred and fifty-one ? and if yea, state the time or times of starting from Newport to Boston after three 25 o'clock, P. M., on that day, of each of said public modes of conveyance. Ans. I believe they were pretty much the same as they are now,—railroad and steamboat. I have not the least re¬ collection of their hours of starting. Cross interrogatories by the defendants ’ counsel. 1. Whether or not are you related to the plaintiff in this action ? If yea, what is your relation to him, and where have you resided for the last five years ? Ans. I am connected by marriage. He is my brother-in- law. I resided the first part of that time in Alabama, then one summer in Virginia, and then removed to Newport, Rhode Island, where I now reside. 2. Of how many persons did the family of the plaintiff consist on the first day of May, 1851 ? Give their names. Ans. I only know of the plaintiff and his wife ; I do not know of their family arrangements. 3. Where did you reside, and where were you on that day ? where were the members of the plaintiff’s family on that day ? whom of them did you see on said first day of May, 1851, and where did you see them? Ans. I resided in Newport in my own house. Mr. and Mrs. Bourne were in Newport at their own house. I only re¬ member seeing Mr. and Mrs. Bourne, and at their own house. 4. Where did the family of the plaintiff reside during the months of November and December, 1850, and January, Feb¬ ruary, March, and April, 1851 ? Did you see the plaintiff or his family during that time? If yea, when and how often did you see him or them? Ans. I do not know ; I do not remember of seeing them during the times mentioned. 5. In the years 1850 and 1851, how many servants, or persons in the capacity of servants, did the plaintiff have in his family ? Ans. I do not know. 6. During the years 1850 and 1S51 did the plaintiff and his family reside in the same or different towns or cities, and 4 26 in the same or different houses ? If he changed his residence with his family at any time or times, during those years, state the towns or cities from and to which he removed with his family, and the streets and numbers of the houses from and to which he moved. State also the times of these changes, their number, and dates. Arts. They have lived in Newport, in the same house, ever since April, 1850 ; how much longer they have lived there I do not know. I came with them from Boston in the latter part of April, 1850, and remained at their house, on a visit, a short time. 7. If you answer to the last interrogatory that the plain¬ tiff did move with his family, in whose charge and keeping were the houses or house, from or to which he moved, left ? and did the persons having the charge of such house or houses receive compensation for their services from the plaintiff or any of his family ? Ans. I know nothing about it. Mr. Welch stated that it was admitted that Mr. Bourne was trustee for the Misses Thorndike, and guardian for the minor Miss Thorndike. Mr. Chandler then opened for the defendants. The case, he said, was one of great importance in more respects than one. Important as involving principles affect¬ ing the rights of every tax payer, but more especially as relating to the public morals. The public burthens ought to be shared equally by all the citizens in proportion to their property. Equality was equity ; and whenever by any man¬ agement one man was able to avoid his just portion of the expenditures which are for the benefit of all, an injustice was done to the whole body politic. A man has a right to live where he pleases. He may change his domicil whenever he desires to do so ; and he is not bound to assign any reason therefor. But such change must be actually made, and it must be made in good faith. No man has a right to have an 27 actual domicil in one place, and a pretended or fictitious domicil in another place. He cannot reside in, and have the benefits of, one town, and elect to pay his taxes in another town, because they are less than in the town where he ac¬ tually lives. Nor had one city or town the least right to complain be¬ cause any citizen chooses to remove therefrom, and that because his municipal burthens would be less in his new resi¬ dence. But any evasion of law, any pretended removal, any attempt by a citizen to enjoy the advantages of one place, and not to share with others in his just proportion of the ex¬ penses of that place, was abhorrent to every honorable mind. The plaintiff had been taxed in Boston in 1851, on the ground that he was a citizen there on the first day of May in that year. He had paid the tax under protest, and now sought to recover it back on the ground that he was not a citizen of Boston on that day. On this point the defendants took issue ; they contend that the plaintiff did have his legal domicil in Boston on that day, and that he was legally tax¬ able there for 1851. Mr. Chandler then proceeded to state the legal definition of domicil, and cited and commented upon various decisions upon the question of domicil, and contended that if the plaintiff, having his home in Boston, made annual visits to Newport, but with the intention when he left Boston in the spring to return in the autumn, this was not a change of domicil for the purposes of taxation. Still less was it so, if his going to Newport before May 1st was not with the bona fide intention of changing his home, but was fraudulent and for the purpose of avoiding his share of municipal burthens in Boston. It would be safe to admit all that was alleged by the plaintiff’s counsel, and all that he attempted to prove. Suppose the plaintiff was in Newport on May 1st. If he in¬ tended to return, if he did not intend to make Newport his permanent home, it was of no consequence where he was on that day. Where was the home of the plaintiff in 1851 ? This was the question, and upon this point he (Mr. C.) should offer 28 such conclusive testimony as would save the jury much trouble in coming to a decision. Ezra A. Bourne, the plaintifF, a gentleman of considerable wealth, retired from active business several years ago, having been president of the State Bank for about twenty years. A few years since, he married the widow of Charles Thorn¬ dike, a lady of large wealth. He subsequently became trus¬ tee of her property, and trustee for several of her children, and guardian of others. Prior to 1848, and for a long series of years, the family had resided in a mansion, suitable to their condition, in Pt mberton Square, and Mr. Bourne had been a tax payer in the city of Boston. In 1848 and in 1849, he went to Brookline with his family, and gave notice to the Boston assessors that he had taken up his permanent residence there. He was taxed there in those years. He spent the winters in Boston, and in the spring of 1850, having hired domestics to keep the house in Boston open for the use of the family, when they desired to use it in the course of the summer, he undertook to go out of the state and to gain a domicil in Newport; and this, as the defendants would show, not bona fide , but with the intention, and solely for the pur¬ pose, of not being taxed in Boston. He gave notice to the Boston assessors that he should be at his home out of the city, and he was not taxed in Boston. In 1851, the plaintifF undertook a more hazardous experiment. He then undertook not only to keep his house open in Boston for use and occu¬ pation when necessary, and to pay no taxes there, but as the circumstances of a part of his family or relations render it convenient, he thought he might venture to let all his family remain in Boston, and merely ride down to Newport with his wife and pass a day or two ; thence, after a journey to the South, returning and spending nearly the whole summer in town. If an experiment like this could succeed, there was an end of anything like firm and just taxation in Boston. But it could not succeed. The defendants averred and would prove, that the whole arrangement was a sham ; he would not say a disgraceful sham—the facts would speak for themselves—but he would say it was a sham that would not even have the merit of success. 29 It would appear in evidence that the family of the plaintiff consisted of about a dozen persons, and that the whole of them were in the house in Pemberton Square during the whole of May, a large part of June, and into July, with the exception of a visit made by Mr. and Mrs. Bourne to Mary¬ land in May, and a day or two’s absence of the same persons about the first of May in Newport. During the winter of 1850—1, the house in Newport was closed and uninhabited. The servants went down to open and clean it about the middle of June. One of those servants would be upon the stand, and would describe the appearance of the house at that time. The cook, who was hired jn Boston expressly to work at Newport, did not leave the former city until about the middle of June. Evidence had been introduced by the plaintiff to show that Mr. and Mrs. Bourne dined in their Newport house on May 1st. The jury, from the evidence to be introduced, would judge whether that was true ; and if so, they would consider the peculiar circumstances under which that dinner took place. It was not until July that the family of Mr. Bourne went to Newport, and even then the house in Boston was left open in the charge of servants, and so re¬ mained the whole period of their absence. They returned early in September. To say that there was any change of domicil, or that the plaintiff was not taxable in Boston on May 1st, was preposterous. These facts would be proved, and by the very persons who best knew them. Some of the witnesses came here with great reluctance, but were brought here by the summons of this court. The family cook in Boston, the person who was hired to keep the house open in 1850, would be produced here to testify. The cook in 1851, the person who lived in the house during the whole summer, would be here. The Newport cook would also appear. The man-servant, who went with the family to Newport and returned with them to Boston, was here present. He should also place upon the stand the plaintiff’s grocer, his provision dealer, his milk-man, his baker, the person who kept his horses in Boston, with their books of account, and the jury would judge from their 30 statements whether the plaintiff’s home was in Boston on May 1st, or in Newport. He should also read in evidence, deeds and other documents, and let the jury see how the plaintiff de¬ scribed himself as to residence. He should also call the clerks of the various corporations in which the plaintiff owned stocks, and the jury would see how they regarded the plain¬ tiff’s residence. It would also appear, or rather, it had already appeared, that the plaintiff had strong inducements in a pecuniary point of view to be taxed out of Boston. For two years past he had been taxed as follows :— 1848. Brookline, - $193.55 1S49. Brookline, ... 261.50 Even this dissatisfied him, and in 1850, when he went to Newport, he wrote the following significant letter :— (Copy.) Newport, April 30th, 1850. Gentlemen,— This is to give you notice that I have become an inhab¬ itant of Rhode Island, and a citizen of Newport, and that it is my intention to make this my permanent residence, and it is my wish to pay my tax here upon my personal property. I occupy a small house on Kay street. Hoping and trusting you will exercise your power with clemency and moderation, I am, with great respect, Your obedient servant, E. A. BOURNE. To the Assessors of the town of Newport.. The “ clemency and moderation” exercised by the asses¬ sors of Newport, appears from the fact that they taxed Mr. Bourne, in 1850, the large sum of $33, and in 1851 the larger sum of $87. This was the whole tax paid by the whole family. The tax in Boston, in 1851 alone, and it was a just and fair tax, was $3571.50. There was an obvious saving to the pocket, but how the honor stood affected the jury would be better able to judge when they had heard the evidence. 31 The following witnesses were then called and examined on behalf of the defendants. Clement Willis .—I reside in Essex street, in Boston. I was an assessor in 1850 and 1851. I know Ezra A. Bourne, the plaintiff in this suit. I have known him 20 years or more. He was president of the State Bank before he retired from business. His house is numbered 19 Pemberton square. It is a very large house. I was a per diem assessor, and his house was in my ward. I visited the house in May, 1851, somewhere from the 12th to the 20th. I called, rung, and inquired for Mr. Bourne. Mr. Chandler. —What was the appearance of the house ? Mr. Welch.—I object to any testimony as to the appear¬ ance of the house. The Court. —He may state what he saw. Witness .—They stated that he had gone to Rhode Island. Mr. Chandler. —What was the appearance of the house outside ? Mr. Welch objected to the question. Mr. Chandler. —I mean to prove an evasion of the law, by showing the appearance of the house. I intend to show that the plaintiff’s going to Rhode Island was for the mere purpose of evading his taxes. Mr. Welch.— He had a right to go to Rhode Island, and pay his taxes there, if he chose. Witness .—The house looked as if it was inhabited. The carpets were not taken up. The front of the house was shut up, and every blind closed. The back part of the house was open. 1 passed the house almost every week day in May. Every day I saw the front blinds closed, and those on the back part of the house open. Mr. Chandler. —Did this fact make an impression oh your mind, so that you spoke of it to others ? Mr. Welch objected to the question, and it was ruled out. Witness .—I frequently saw the carriage stop at the door. Cross-examined .—I usually passed the house about one o’clock. The house fronts the east nearly ; the rear is west. 32 It is the house taxed to the plaintiff as trustee for his wife I had something to do with assessing this tax. I advised the assessment. I took the place of a permanent assessor, and my duties were the same. I think it was after May 12, that the taxes were assessed. I have not been active in getting up this case ; not at all. Direct resumed .—I noticed always, when I passed, that the front of the house was shut, and the back part open. I passed about one o’clock, or a little after. Cross-examined .—There are large houses in the rear, standing above it. This is a corner house. There is a large open space in front. Direct resumed .—I don’t recollect any end windows. Samuel G. Studley .—I am the book-keeper for S. S. Pierce, grocer. I know Ezra A. Bourne by sight only. He dealt with that concern in 1851, and in previous years. Articles were delivered at his house during the summer of 1851. Mr. Bourne paid for them. I have the books here. (Here he opened to Mr. Bourne’s account on the leger.) Mr. Welch objected that books were not admissible. Mr. Chandler.— I wish to show that Mr. Bourne paid this very account. Witness .—I was with Mr. Pierce at that time. There are charges upon his books, to Mr. Bourne, on the following dates : 1S51, January 1, 4, 6, 8, 9 11,15, 16, IS, 22, 23, 25, 28, 29, 30; February 1, 4, 5, 6, 8, 12, 14, 17, IS, 19, 21, 22, 24, 26, 28 ; March 1, 3, 4, 5, 6, 7, 8, 10, 11, 15, 17, 18, 19, 22, 24, 25, 29 ; April 1, 2, 4, 5, 7, 8, 9, 11, 12, 14, 17, 18, 19, 21, 22, 24, 28, 29 ; May, 1, 2, 5, 6, 8, 9, 10, 14, 16, 19, 21, 24, 26, 27, 31 ; June 5, 6, 9, 10, 14, 16, 17, 19, 20, 21, 23, 24, 26, 27 ; July 1, 2, 3, 5, 7, 9, 10, 11, 12, 14, 18, 19, 24, 31 ; August 6, 19, 22; September 1,3, 10, 11, 16, 17, 18, 20, 23, 24, 25, 27; October 3, 6, 8, 9, 10, 13, 16, 21, 24, 31 ; Novem¬ ber 1, 7, 8, 10, 11, 14, 20, 28, 29; December 2, 3. 4, 6, 8, 9, 11, 12, 13, 16, 17, 18, 19, 20, 22, 23, 24, 26, 27, 30. This account was settled by Mr. Bourne, January 27, 1852. The articles were delivered in the same way in May as in previous 33 months. I know no change. I drew off a statement of the items at the request of the defendants’ counsel. This is the statement. Mr. Sohier. — I object to the admission of the account in evidence. The fact that Mr. Bourne had articles in those months is admissible, hut not what those articles were. Witness .—These items were on Mr. Bourne’s pass book, and the pass book was receipted. Cross-examined .—These articles were delivered in the same manner as in previous months. The servants came for them, and brought a pass book. The general order was to deliver no article Avithout the pass book. I don’t recollect seeing Mr. Bourne during this time. The same course was pursued during the years 1848, 1849, and 1850. Direct resumed .—I had no account with Mr. Rice. I have heard of him. I never sold him anything. Sylvester Seaverns .—I am a provision dealer. I keep at No. 26 School street. The name of the firm is A. Seaverns & Co. I know Ezra A. Bourne. I have known him for five years. I have dealt with him for about the same time. He lives in Pemberton square, No. 19. I had an account with him in 1851. I have it here. There is no charge in Feb¬ ruary or March, 1851. The account started 29th April, 1851. October 1, 1849, is the first charge on this book. From August 1850, to April 1851, he had very few things. I know no reason for that. The young man carried these things to Mr. Bourne’s house. I don’t know who ordered them. An order was sent to the store by our young man. He went up. to the house. The order was always in writing. We kept all the orders. It was their wish that the orders should be so preserved. It was the wish of Mr. and Mrs. Bourne. Nothing particular was said at the time. Those orders were to serve as checks by which to pay the bills. They had a pass book besides. Mr. Bourne paid these bills. Each item was compared with these orders, and settled with Mr. Bourne, and the orders given to him. There were charges on the following dates : 1851, April 29, 30 ; May 1, 2, 3, 5, 6, 7, 8, 5 34 9, 10, 12, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31 ; June 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 30; July 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 21, 22, 23, 24, 26, 30. Those were also delivered on orders. The or¬ ders were preserved, and returned, and settled. I will give a copy of these items. I cannot to-night. Cross-examined. —The pass book was a small book kept at Mr. Bourne’s house. The book was not sent down. On these orders Avas put down the article that was wanted, such as