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some wealthy Natives were buying up Mr. Erskine's bills on speculation, and, on this being intimated to the Court, the further taxation of these bills was very properly put a stop to.
These are the facts (of which 'Vindex' pretends ignorance) connected with the taxation of the bills of costs; and will any one say, that, under the circumstances I have stated, the amount of the security exacted by the Court, before Mr. Erskine was permitted to leave the island, was too much? If the Court erred at all, it was in allowing such a delinquent to escape as he did, with comparative impunity.
I must again beg of you to insert the Court's judgment, and the list of taxed bills, both of which are (be it remembered) official copies of recorded documents, and must produce a conviction of the deep guilt of Mr. Erskine, in the mind of every one who reads them. I am, Sir, your most obedient servant,
The Honourable the Court of the Recorder of Bombay, June the 18th, 1823.
Ar a Special Court summoned on this day,-Present: the Honourable Sir Edward West, Knight, Recorder; John Leckie, Esq., Mayor; William Page Ashburner, Benjamin Phillips, and Robert Wallace, Esqrs., Aldermen, the following judgment of the Court was delivered by the Honourable Sir Edward West:
We have thought it right to convene a Special Court, for the purpose of publicly reprehending one of the officers of the Court for misconduct in his office. Some investigations have lately been made of the conduct of the Clerk of the Small Causes: had the result of those investigations been favourable to Mr. Erskine, his exculpation would necessarily have been public; the result having been unfavourable to him, it is equally necessary that that result, and the decision of the Court upon it, should be made public.
This is necessary, as well for the purpose of example, as for that of convincing the Native community that this Court will protect them from extortion and oppression; to convince them that this Court, the peculiar end and object of whose establishment is to protect them from fraud and oppression by others, will not so far forget itself, and the object of its institution, as to screen or permit fraud and corruption in its own offices, and within its own walls.
It was necessary to call a Special Court for this purpose, as by the constitution of this Court, a majority of the Judges, I mean the three Aldermen, relinquish their seats on Friday next, the first day of term; and, had we waited till that day, one set of Judges would haye had to decide on evidence delivered before another set.
That the nature of the abuses which have been found to exist in Mr. Erskine's office may be fully understood, I shall state at some length_the manner in which those abuses were discovered, and the investigations which have taken place in consequence of such discovery.
The first charge against Mr. Erskine is in a case, in which a woman of the name of Ruttunvow was the plaintiff, on the 15th of April last, A
petition was presented to me from this woman, in which she stated that she had received a judgment in the Small Cause Court, for 459 rupees; that the defendants had paid this sum into Mr. Erskine's office, but that she could not obtain it from the office, as the defendants had given a notice of motion for a new trial. On looking to the notice, I found it had been given too late, and, therefore, made order on Mr. Erskine to pay the woman her money.
In this petition it was stated that Mr. Erskine had compelled the plaintiff to pay the defendant's cost before he would permit her to sue out a writ for the recovery of the damages. When first I read the petition, I supposed the statement to have been a mistake of the petitioner. Hearing, however, a short time afterwards, of some other irregularities in the office, I again referred to the petition, and sent for the petitioner. Her son attended me; and, on examining him, I found not only, as was afterwards admitted by Mr. Erskine, that the statement in the petition was correct, but the son added, that Mr. Erskine had deducted ten rupees from the sum due to the plaintiff, before he paid it to her. His statement was this: I went,' said he, to Mr. Erskine's office, and his clerk told me, that Mr. Erskine's charges were 110 2 0 rupees, and that, after I had paid that, he would give me a notice on the defendant, and, when he brought the money, he would pay it to me. I afterwards went to Mr. Erskine's office: Mr. Erskine told me, When your mother comes and signs a receipt for it, she shall have it. I said, it was not the custom of widow ladies, of my caste, to come out. Mr. Erskine carried the money, and gave it to my mother; and for that I paid him a fee of ten rupees, for going to her house to carry the amount. My mother was a poor woman, and offered five rupees; but Mr. Erskine said what was his fee he took. My mother said, I have several children, and I have only seven rupees a month to feed them. She signed the paper. I went several times after that, to get a bill for the ten rupees' fee. Sometimes, Mr. Erskine was not there; at other times, I do not know whether he was there or not. Once I saw Mr. Erskine in the room; but his clerk would not let me go in to speak to him.' This statement about the ten rupees I could not conceive could possibly be true, but, nevertheless, considered it my duty to examine the witness in the presence of Mr. Erskine; and accordingly, on the 13th of May, one of the Aldermen (Dr. Philips) and myself being in Court, we retired into a private room with Mr. Erskine, and examined the witness upon oath. That no other person might hear the charge, Dr. Philips was so good as to act as interpreter, and I took down the evidence myself. The witness was examined, and told precisely the same story as before; and Mr. Erskine, on being asked what he had to say, admitted the fact, and said he took the ten rupees as a fee for going to the plaintiff's house. I asked him whether he could point out any such fee in the table of fees which I handed to him; he allowed he could not. On what ground Mr. Erskine can attempt to excuse this, I do not know. I have heard from him no attempt at excuse, though he has had many opportunities given to him for that purpose. As to any justification of his conduct, it is out of the question, as there is no such fee allowed by the table of fees. I confess I cannot understand by what motive he could have been actuated in withholding, from a poor woman, appealing to him as she did, stating that she had several children, and only seven rupees a month to feed them, what was to her so large a sum. I do not understand how he could have so far forgotten his feelings as a gentleman, and his principles as an honest man.
Thus much for this case: but I cannot omit, before I entirely quit it, to reprobate the very improper practice, admitted by Mr. Erskine to prevail in his office, (though unsanctioned by any rule,) of making the plaintiff, who has recovered a judgment, pay the defendant's costs, before he is permitted to avail himself of his judgment, or to sue out execution against the defendant. The plaintiff is, of course, liable for his own costs; but by what rule of law or justice is it, that, after he has recovered a judgment, he is compelled to pay the defendant's costs. Look to the consequences of such a practice: should the defendant be insolvent, or should he abscond, or secrete himself, or, in short, should any thing happen to prevent the plaintiff from recovering his costs and damage against the defendant, the whole of the defendant's costs must fall upon the plaintiff, in addition to his own. The motive of this practice is much more easily understood than the reason, I am sorry to say; but I fear that the motive was the same as in the case of the ten rupees: I mean, again to squage as much as could be squaged from the miserable, hard earnings of that poor class of people who usually apply for redress to the Small Cause Court.
The second charge against Mr. Erskine is, the having charged, and received from the suitors, one whole rupee for each seal, instead of half a rupee, the fee paid to the sealer.
A few weeks after my arrival here, I found, from the rules of Court, that half a rupee only was to be charged by the sealer, for every seal affixed to proceedings in the Small Cause Court, but that the sealer was receiving one whole rupee. I inquired of Mr. Woodhouse, the late sealer, the reason of the practice: he told me that one rupee had always been received, but did not know whether the rule had been altered. I then referred to Mr. Sandwith, as being one of the oldest practitioners of the Court: he could give me very little information, excepting that it had been received for many years. Finding, however, no authorised alteration of the original rule, I desired the sealer to receive but half a rupee; and, consequently, on the 20th of March, his fees for seals on proceedings out of the Small Cause Court, were reduced to half a rupee for each seal. Many weeks after this, on some day between the 6th and 20th of May, (I cannot charge my memory with the precise day,) I had occasion to send for Mr. Erskine's book of fees, and was very much surprised, on examining the book, (which I had taken some pains to understand, and had at last mastered in spite of its being so illegible, as Mr. Erskine admits it in his examination to be,) to find, that, up to the last charge made in the book, which charge was dated the 6th of May last, a whole rupee had continued to be charged on each seal. I mentioned this to Mr. Erskine's clerk, who immediately admitted it. As soon as I saw Mr. Erskine, I, of course, mentioned it to him; I mentioned it also to him twice afterwards. On these occasions he said he was not aware of it, and, if it was so, it was very improper; but on no one of these occasions did he say he would investigate, or had investigated, the subject; or that he would discharge the clerk, if it should turn out to be the case, or any thing of the kind. Now I would ask if this was the conduct of a correct man, jealous of his honour and his character? Would not such a one immediately have exclaimed, 'I am shocked to hear this; I will immediately inquire into it, and take care to discharge my clerk, if it be so;' or would not such a person even have requested the Court to investigate the matter, in order to clear his own character from a suspicion of participation in the fraud? I will now read Mr. Erskine's
own examination, when called upon to answer this charge.-Examination read. June 13th, 1823.
Present: the Honourable Sir Edward West, Knight, Recorder; John Leckie, Esq., Mayor; William Ashburner, Esq., Alderman.
William Erskine, Esq., sworn. Examined by the Court. RECORDER.—I mentioned to you, on the 20th of May last, in Court, the fact that your clerk had been charging one rupee for each seal, whilst he paid only half a rupee to the sealer. I mentioned it also, I believe, two other times.
Mr. ERSKINE.-I think it must have been on that day, and I think you must have mentioned it two other times.
RECORDER.-Have you inquired into the fact?
Mr. ERSKINE.-I think your Lordship did not mention the number of the cause, and, as you were making some investigations, I thought it would be interfering between the Court and Bappoo, and might appear to be altering the state of circumstances.
RECORDER. I mentioned it to you, not as a single instance, but as a thing which had gone on for some time.
Mr. ERSKINE.-I thought your Lordship had mentioned it as in one
RECORDER. I mentioned it as a thing which had continued ever since the reduction of the fee of the sealer.
Mr. ERSKINE.-I did not understand it on a general sense.
[Here the Recorder referred to Mr. Leckie, who had been in Court when the Recorder spoke to Mr. Erskine about the seals. Mr. Leckie agreed with the Recorder, that he had mentioned to Mr. Erskine the charging of one rupee for a seal as a practice which had been going on some time.]
RECORDER.-Are you prepared now to say, Mr. Erskine, whether the fact has been so or not?
Mr. ERSKINE. It will appear in the bills of particulars, which are in your Lordship's possession; (book containing bills of particulars, called Book of Items, shown to Mr. Erskine, who examines it ;) up to the 6th of May last, as far as appears from this book, one rupee has always been charged for the seal at the time the notice was given. I think, either by Mr. Sandwith, or on the authority of Mr. Sandwith, that no more than half a rupee was to be given to the sealer. I called Bappoo, and desired him to be careful that no more was given or charged.
RECORDER. Some of these bills (showing Mr. Erskine the bills in The Book of Items,' in which the rupee was charged for the seal) of course have been paid to you, Mr. Erskine?
Mr. ERSKINE. Some of them must have been paid to me. I have brought the books; (produces cash-book and examines it ;) yes, in No. 131, the costs appear to have been received.
RECORDER. And, I suppose, in many others too?
Mr. ERSKINE. Yes, in all probability. There is another (still examining cash-book) in No. 116, where the costs have been received, and in 105, in No. 132, the same seems to have been the case, and in 139.
RECORDER. Do you not look over the items which compose the charge, (that is, bill,) before you take the money.
Mr. ERSKINE.-I have not looked over each item of the bills. I have been accustomed to trust to the accuracy of the clerk in the office, to whom the duty belongs of making he bills and included the sum total
in the judgment, on being assured it had been made up in the usual
RECORDER. This was leaving a great deal to the clerk, and he might be cheating you, or cheating the public.
Mr. ERSKINE. It certainly was very improper conduct in me, and I am fully sensible of it, and regret it extremely.
RECORDER.-Mr. Erskine, you are confident you told Bappoo not to charge more than half a rupee?
Mr. ERSKINE. I am certain I mentioned it: I am confident I charged Bappoo, at the time I reduced the fee to the sealer, not to charge to or receive more from the clients. [Some questions were here put to Mr. Erskine, with respect to the number of cases in which the whole rupee for seals had been improperly received by him, and he says:] For all the summonses which have been sued out between the 20th of March, and the 6th of May last, and in which judgment has been obtained, and the money received, one rupee has been received for the seal.
This examination having been read over to Mr. Erskine, he wishes to add the following particulars :
The Honourable the Recorder did, upon one or more occasions, say to me, that it appeared the seal had continued to be charged at one rupee after the reduction to half a rupee I mentioned the circumstance to Bappoo, and asked if it was possible? He confessed it did appear to be the case. I asked him what had induced him to make the charge, how he had suffered it to enter the account? He could give no reason, but said that he had forgotten it.
16th June, 1823.
Present Sir Edward West, the Mayor, and all the Aldermen. RECORDER. I will now, again, call your attention to what I mentioned to you in Court, on the 20th of May, that one rupee had been charged (for each seal) instead of half a rupee. Was it, upon recollection, a general observation, as on a fact going on for some time, or as a single instance.
Mr. ERSKINE.—In that case, my Lord, I understood it to have been a general observation.
RECORDER.-Do you remember, on the 11th of June, my mentioning the fact about the seal, the fact of the subpoena, and about the ten rupees in Ruttonvow's case; and that I said that I must necessarily bring them before the Court?
Mr. ERSKINE. I think it is probable that your Lordship mentioned them. I have not quite a distinct recollection as to the subpoena, but I think it was also mentioned. The seal and the ten rupees were certainly mentioned.
RECORDER. Did not you, Mr. Erskine, on that occasion, and on a former occasion, (when the improper charge of the seal was mentioned,) say that you were not aware of it, and that, if it were so, it was very improper?
Mr. ERSKINE. On the former occasion, I did. I have no recollection of saying so on the last occasion.
RECORDER.-Did you, on the last occasion, admit that it had been so? Mr. ERSKINE.-I do not recollect admitting it: I was a good deal confused and agitated at what had fallen from your Lordship, and have not a distinct recollection of it.
RECORDER. Did you mention to me (on that occasion) that you had told Bappoo of it, and that he had admitted it, and said it was a mistake?