Mr. ERSKINE.-I don't recollect telling your lordship so, except at the time of my examination (on Friday last): I might have done so, but I have no recollection of it. Bappoo confessed it to me only a short time before the examination took place.

RECORDER.-Do you remember about the day Bappoo mentioned it to

you?

Mr. ERSKINE. I don't remember exactly; but, to the best of my recollection, it was three or four days before.

RECORDER. Had you mentioned it before to Bappoo?
Mr. ERSKINE.-Yes, I had.

RECORDER. Did he confess it before?

Mr. ERSKINE.-He did not.

RECORDER-Why did you not, between the period of my first mentioning it to you, on the 20th May, and the time of Bappoo confessing it, institute an investigation, to see if it were so, or not? A single glance of any page of your old book would have shown whether it was so, or not?

Mr. ERSKINE. It was my duty to have done so, but (I confess) I was, during all that time, in a very feverish state of feeling, in consequence of the inquiry and investigation that were going on, and the papers that were asked for, which prevented me from setting about it as ought to have done.

RECORDER. In your former examination, on Friday last, why did you not, having ascertained from Bappoo that the charge was true, at once acknowledge the truth, instead of referring me to the book of particulars, (meaning the old book of items,) which you have acknowledged to be almost illegible?

Mr. ERSKINE. I understood your lordship to mention two different instances, in the first part of the examination. I, perhaps, by mistake, supposed your lordship to allude to a particular instance, in which, as Í understood, you had ascertained that one rupee had been received instead of half a rupee. I was not acquainted with the No. of that case, and had not learned from Bappoo whether it had been charged or not, on which account I referred to the bill of particulars. In the latter part of the examination, on observing my mistake, I mentioned it generally.

RECORDER. HOW could that be so, when, before I put the question, I referred to Mr. Leckie, whether he understood my observation in Court to be general, or not, and then put the question, No. 5, on which you referred me to the Bill of Particulars. (Question, No. 5, read.)

Mr. ERSKINE.-I do not recollect the circumstance: there must have. been some confusion or misunderstanding in my mind.

These facts, then, appear, from Mr. Erskine's own admissionFirst, That the improper fee of one rupee was charged for the whole period between the 20th March and 6th May last.

Secondly, That this improper charge was regularly entered in Mr. Erskine's own book-the only book in which the particulars of costs appeared. And,

Lastly, That, in all the cases in which an authorised fee had been paid, the money was actually received by Mr. Erskine.

This, I am sorry to say, is not all: I cannot but add, that his conduct has been neither straight forward nor candid. Instead of giving every facility to the investigation, every obstacle has been thrown in the way of it. I could scarcely ever get a direct answer to any question put to him, as the examination which I have read will show; and, when I asked for the books in order to examine the costs, I received this book of hiero Oriental Herald, Vol. 18.

L

glyphics and here, I cannot but remark the difference between this book and the one kept by Mr. Erskine's predecessors.

[Here the books were shown.]

We now come to the third and last charge against Mr. Erskine-that of charging the suitors with fees for subpoenas, when no subpoenas had issued.

On the 20th May last, the Mayor, Mr. Leckie, and myself, were sitting to hear small causes, a witness was called for a defendant; the witness not appearing, I inquired whether he had been subpoenaed, in order to call him upon his subpoena. Mr. Erskine and his clerks all said the witness had not been subpoenaed. After a little more inquiry, however, another witness of the defendant's produced this ticket:

[Ticket read.]

'By virtue of writ of subpoena, directed and herewith shown unto you, you are to appear in this Honourable Court of the Recorder of Bombay, on Tuesday, the 20th day of May, at ten o'clock in the forenoon, to testify the truth in a cause then and there to be tried, between Wittoo Brother and Executor, Plaintiff; and Defendant, on the part of the said Defendant, under pain of 200 rupees. Dated this 19th day of May. (Signed,)

WILLIAM ERSKINE.' (In his own handwriting !)

As soon as this was produced, I directed the other witness to be called on the subpoena, on which Mr. Erskine admitted that no subpoena had been issued. I asked him how this could be, when he had issued the subpoena ticket? He said he had signed it by mistake, and had given directions that it should not be served. I carried the inquiry no further at that time; but, some time afterwards, I believe on the 9th or 10th of June, having sent for Mr. Erskine's books again, to see how his charges were going on, two books were sent to me-the old book of items, which I have before mentioned, and a new book of items, kept according to directions which I had given, in a more legible manner. I was much surprised to observe, in the new book of items, a charge for notice to witnesses in all the cases prior to the 20th May last, the day on which I had discovered the irregularity about the subpoena. My suspicions were, of course, excited by this; as I never, in the course of my practice, nor any one else, heard of a notice to bring witnesses into Court; and, though the first bill in the new book was dated the 13th of May last, I suspected, as afterwards turned out to be the case, that the book had been commenced since the 20th of May last, and that the book had been framed purposely to meet my eye, and to prevent my asking for the subpoenas in those cases. I will now read Mr. Erskine's explanation of this part of the case. [Examination read.]

Examination continued.

RECORDER. Was not this ticket (showing the ticket in No. 564) produced by a witness as having been served upon him, no subpoena having been sealed?

Mr. ERSKINE.-Yes, it was. The circumstances under which it happened, were these: The notice is dated the 19th of May, and the Court was the next day. I had signed two or three copies of subpoena tickets in this cause, and had given directions for a subpoena to issue a little past four. One of the clerks put the subpoena into my hand for signature. I sent for Bappoo, and complained of his practice of being so late in issuing the subpoenas, which made the service so uncertain;

and, in this case, it was not probable the seal could be got, as it was past the office hours. I did not sign the subpoena, and desired him not to issue the tickets, as he could not serve thein without showing the seal of the Court.

RECORDER. Then do you know how it came to be served?

Mr. ERSKINE.-I only know it as far as it was explained to your lordship in Court by the Clerks. I was not aware of the irregularity till the ticket was produced in Court. I was very much surprised at it. I was the more hurt, as I had repeatedly ordered the subpoenas to be issued on the Saturday before.

RECORDER. HOW came you, Mr. Erskine, to sign the ticket without having the sealed subpoena before you?

Mr. ERSKINE.-When there are a number of causes in Court, there will sometimes be a hundred, or more than a hundred, subpoena tickets alone, and double the number of notices. Sometimes the parties come to the office before the Clerks leave it, to put off the trial; and, therefore, the subpoenas are not sealed till after the tickets are signed, and the Clerk is going away to execute them.

RECORDER-Are you not aware, Mr. Erskine, that by that practice your Clerks are enabled to defraud the sealer as much as they please?

Mr. ERSKINE. If it enters into the books of the office, the improper fee would go to the Clerk, as there is no separate fee taken from the Client on that account.

RECORDER. Do you, or do you not, know it has been the practice in your office to serve tickets, which profess to be the copies of a subpœna, without any subpoenas being sealed?

Mr. ERSKINE. I certainly was not aware of it until an instance of it was pointed out by your lordship. I have several times mentioned that there are too few subpoenas in defended causes to force the parties to appear before the Court, instead of notices to the witnesses, and desired it to be changed.

RECORDER-Did you ever issue notices to witnesses instead of subpoenas?

Mr. ERSKINE.-Yes, it is the ordinary practice in exparte cases; and Sir William Evans said he thought that subpoenas ought not to be taken out in defended cases, unless the parties wished it. The charge for a notice to witnesses is half a rupee. RECORDER. Did you ever issue notices in defended cases? I suppose, of course, you must have done so, from your having complained of there being too few subpoenas in defended cases.

Mr. ERSKINE. I think I must, but I do not recollect any individual instances; but I think I must. What made me complain of the want of subpoenas in defended cases, were some instances in which I wished to have called the witnesses on the subpoenas, and found that none had been issued.

RECORDER-Then, can you have any doubt that notices have issued in defended cases?

Mr. ERSKINE. What made me doubt was this, that, in some instances in which a subpoena or notice ought to have issued, I do not find among the papers either a notice or subpoena, which made me afraid that some irregularities must have arisen in those cases.

RECORDER. Did you, in consequence of what Sir William Evans told you, give any directions that notices should issue instead of subpoenas? Mr. ERSKINE. I gave directions that in all cases of importance

subpoenas should issue, but not in exparte cases, unless asked for; nor in cases where the parties undertook to bring their own witnesses. RECORDER. That is no answer to my question.

[Question repeated.]

Mr. ERSKINE. No, I don't recollect giving directions that notices should issue instead of subpoenas.

RECORDER.-Then how did what Sir William Evans told you account for there being so few subpoenas?

Mr. ERSKINE.-I imagined that, if subpoenas did not issue, the only other way of calling witnesses was by notice. RECORDER. (Showing witness the books of items.)

Do you find a single case in this book of a notice to witnesses being charged instead of a subpoena ? If you can find one, point it out.

Mr. ERSKINE. (Having examined the book.) I do not observe any such it certainly is extraordinary.

RECORDER. (Showing a bill, No. 43, to Mr. Erskine.) In this bill, subpoenas and seals are charged twice, one for the plaintiff, and one for the defendant: did any subpoenas issue in those cases?

Mr. ERSKINE.-I cannot find either subpoenas, seals, or notices. RECORDER.-Look at the page of the book of items dated 6th May, 1823, where several subpoenas and seals are charged. Can the office a single subpoena and seal?

you

find in

[Time was given to send for some papers from the office, in order to answer this question, and in the meantime the examination was continued.] RECORDER. Did you direct that, in this new book of items, notices should be charged in any case instead of subpoenas, up to the date of the 20th May, when I discovered that no subpoena had issued?

Mr. ERSKINE.-I did give those directions, because, in looking over the papers, I could not find either notices or subpoenas, and therefore took the lowest charge.

RECORDER.-Was the book commenced on the 13th May, which is the date of the first bill in it, or was it not commenced till after the 20th May, the day that I discovered that no subpœna had been issued in one particular case?

your

Mr. ERSKINE. This book was not begun to be made up until after lordI had seen your lordship on the 20th. The reason was, that ship had complained of the fees. I wished the charges to be made as much as possible in conformity with the table of fees, and, therefore, I did not allow the items to be entered, until I had taken the opinion of your lordship as to some fees about which I was not certain. RECORDER. From what documents was that book made up? Mr. ERSKINE. From the papers in each particular cause. no entry made of the particulars of the costs in any book except in the book of items. The costs in long cases which are tried are not made out any where but in the book of items.

There is

RECORDER.-Will you undertake to say that these notices to witnesses -(pointing to the notices mentioned in the new book)-were not tickets professing to be copies of subpoenas?

Mr. ERSKINE.-I cannot undertake to say. I have great reason to suspect they might be from what has taken place. Upon recollection, I could not undertake to swear that notices to witnesses were issued in exparte cases.

RECORDER.-Can you undertake to say that in any single instance a notice has issued to witnesses to bring them into court instead of a ticket?

Mr. ERSKINE.-I could not swear to that from personal recollection. RECORDER. I will ask you whether you do not see the impropriety of signing tickets which profess to be copies of subpoenas, before the subpoena is sealed and issued?

Mr. ERSKINE.-I certainly do, my Lord. I ought to have kept them, if I signed them, in my possession, until the subpoena was sealed."

RECORDER. Is it proper at all to sign that which professes to be a copy of the Court's mandate, before that mandate issues, and thus give an opportunity to others of committing the greatest possible contempt of Court?

Mr. ERSKINE. It certainly is not. The subpoenas are printed, and the names of the witnesses inserted; but it is not regular to sign tickets until the subpoena is sealed.-(The papers which Mr. Erskine sent for, in order to answer question 24th, were here produced. Mr. Erskine examines them, and states :)-In No. 364, three subpoenas are charged two rupees each, and but one is produced. In No. 4, two subpoenas are charged, and none to be found. In No. 101, no subpoena to be found, and two are charged. In No. 572, two subpoenas are charged, and none found. In No. 130, none produced, or found, and two charged. In No. 591, one charged, and none found. In all, twelve subpoenas charged, but only one found.

After some discussion and investigation, it is admitted by Mr. Erskine, that, from the cases which have already been taken out, and upon an investigation of the books, &c., that, since the present Sealer's admission, it has, in nine cases out of ten at least, been the practice to charge for subpoenas and seals where none were issued or sealed. I certainly was not aware of the fact, (says Mr. Erskine,) until it was mentioned by the Honourable the Recorder, although I had noticed and complained of the fewness of the subpoenas in those causes that were in Court as beforementioned.'

RECORDER.-The 29th rule of Court requires that the Clerk shall, at the end of every month, deliver into Court, for their inspection, all books kept by him relating to the business, &c., and an account of all the fees received by him; I wish upon this to ask the question, whether the only book of items of costs kept is such as can be understood without considerable labour, and without mastering the general course of the items of charges, the items being merely set down with initial letters, and many of those unintelligible.

Mr. ERSKINE. I do not think that it can. It is certainly kept in a very illegible way.

RECORDER. Have you now put up in the Small Cause Court a copy of the table of fees, in the English and Guzeratt characters ?

Mr. ERSKINE. Yes, I have, in a conspicuous part.

RECORDER. I wish to ask whether the business of the Small Cause Court has not been left almost entirely to Bappoo to conduct?

Mr. ERSKINE. During the last three years, from my absence from Bombay, the state of my health, and various circumstances, I was not able to pay that attention to the details of the office which they certainly required; and, during that time, the chief management of the office was in Bappoo.

RECORDER. What is Bappoo's salary?

Mr. ERSKINE. Twenty rupees a month, and a half rupee for each cause filed. It would average about forty-five rupees a month, or a little

more.