Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1906-02-16


early years Of his practice Of law, even
up to the year 1898 or 1892 he was in
very straitened circumstances; that he
was working along as best he could, with
the help OF his friends, being forced from
time to time to give notes in settlement of
his obligations, and to raise money upon
bank notes endorsed by his friends
1t appears that this was his condition
at the time OF the deposit OF the check in
question, and that items and obligations
payable at the bank where his account
was kept, came In and were charged UP
to the account on the day Of the deposit,
or the day following, sufficient to sub
stentially exhaust his entire balance.
Before he could pay over the collection,
IL was necessary to procure the account
Of his associate, and certain items Of
costs and expenses.
The main reason for delay, however,
was the disappearance Of his bank balance
as stated. We find that he had no inten-
ton OF defrauding his clients, but that he
was in good faith making every effort to
discharge his obligations as fast and as
soon as he could accomplish It In his then
financial condition.
On the second day OF April, 1894, he
sent a check for $3.50 In letter Of which
the following is a copy:
"Brattleboro, VT, April 2, 1894
Glen Bailey, Esq,
Dear Sir:
II have succeeded in getting $3.50
OF Smith & Co., for which enclose check.
The balance win be forthcoming soon,
think. It is amply secured, and will push
to a close as soon as possible. Please
acknowledge receipt OF this.
yours very truly,
&C. C. Fits"
On the 21st OF June, 1894. said Fits
sent his clients a check for $1O2.4O, the full
Of ha
interest, except his own and his asso-
ciate's account and the costs, which he
distributed.
We find that said Fits safeguarded the
interests OF his clients in all respects and
with entire fidelity.
We see nothing whatever to criticize In
this matter, except the letter Of April I'd,
which we regret we note his youth. and
his peculiar stress, but II II Is within the
province Of this commission we would
suggest that a fair, frank letter would
have been much better from every point
OF view. and would have served its pur-
pose quite as well and at less cost.
From a disputed collection, originally
Of $780, stoutly Irrigated, said Fits hav-
ing retained and paid associate counsel,
eventually, and within six months time,
paid to his clients net the sum Of $3.50 40.
The Daniel p. Prescott Matter.
spect to the alleged unfaithfulness, and
deceitful and unprofessional conduct on
the part Of said Fits. in his capacity as
attorney for Daniel p. Prescott It ap-
peared that Charles c. Bartlett, by a writ
dated December IT, 1900, and served the
same day, brought a suit against said
Daniel p. Prescott, and summoned the
Estey Organ company, the S. A. Smith
company, w. B. Johnson, Lysander Lord
and Harrison Fisher, as trustees OF said
Prescott, declaring in general assumpsit
with an ad damnum OF $500, and the COM
mand to attach the property OF the de-
PENDANT to that amount: that the suit was
returnable to the Windham county court,
and that 1t was entered and doci1eted in
said court December 21, 1900; that as soon
as said suit was begun said Fits was
employed by Prescott as his counsel
therein; that thereupon said Fits entered
his appearance for the defendant In said
cause. and continued to be counsel for
the defendant throughout that litigation.
We find that soon after said Fits was
employed by said Prescott the latter, for
certain prudential reasons desired said
Fits to procure said trustees to be dis
charged. Whereupon. with the knowledge
and consent OF said Prescott, said Fits
drafted and caused to be executed a bond
such as is required by v. s. 1922 for the
discharge OF said trustees. and at the
same time said Fits drafted, and said
Prescott executed. a mortgage to the
sureties on said bond to secure them in
the liability they thereby incurred. Said
bond was filed in court in said cause De-
cember 81, 1900, the day said case was
entered and docketed; and on January H.
1901. an order issued discharging said
trustees.
1t is claimed by counsel for the
petitioners that this bond should have been
so drafted as to hold the obligees for a
much smaller sum; and that in drafting
the bond so as to make the obllgees liable
to pay any judgment that the plaintiff In
said suit might recover against the de-
PENDANT therein, said Fits did an unusual
thing which, together with his allowing
the ad damnum in said suit to be raised
and the plaintiffs specifications therein
to be amended, and his action in bringing
the two suits, Crown & Bailey VS.. Bart
lett, and said Prescott as trustee: and
Bartlett VS.. Dodge & Streeter, all OF which
is hereinafter set FORTH shows a fraudu-
lent scheme on the part OF said Fits, to
cast his client in said first mentioned
suit for the benefit Of his clients in said
two last mentioned suits. But we find
that both in the drafting and the filing OF
said bond said Fits proceeded legally and
properly, and acted with all fidelity to
said Prescott. Said bond is marked "Ex-
hibit d" is hereto attached and made a
part of this report
In said suit OF Bartlett VS. Prescott
certain property Of said Prescott was at
tached. Prescott complains that said
Fits permitted a receipt to be given to
the ofiicer who made the attachment
which bound the signers, In default Of re-
turning the property therein described to
answer the execution, to pay such judg-
ment as might be recovered by the plain
tin In said suit.
We find that said Fits had nothing to
do with the giving OF this receipt. ana
that he did not knew OF its existence till
his attention Was called to II by said
Prescott, after judgment was rendered
But II was offered In evidence, and a copy
thereof marked Exhibit e." which is
attached to this report and made a part
thereof.
On January 80, 1901, said Fits was re-
quested by Crown & Bailey to bring for
them suit in assumpsit against said
Bartlett and to trustee said Prescott
Whereupon said Fits informed Crown &
Bailey that he was the retained counsel
Of said Prescott. that he would go so far
as to bring said suit, and trustee said
Prescott, but that in all matters connected
Herewith he should protect the interests
OF said Prescott in preference to the in
terests OF Crown & Bailey, and that, n
the case came to trial, Crown & Bailey
must procure other counsel. With this
understanding said Fits brought a suit
In assumpsit for said Crown & Bailey
against said Bartlett, and trusted said
Prescott. Said suit was returnable to the
Windham county court. The writ was
dafad January 1901 aavxraH and