Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1906-02-02
THE Fits CHARGES
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with the liquor traffic in any way holds
any unpaid obligation of any character
or kind against him.
This respondent further answering
says that the facts concerning the two
foregoing matters OF complaint are gem
orally and well known in Brattleboro and
have been for many years; that the said
Smith and Hunt have openly. and publicly
told of the said collection matter against
them; that the said suit of August 90
1895 on said check, and all the details
thereof, were published and discussed in
both the local papers of Brattleboro at
the time; that there never has been any
concealment or attempted concealment
of the facts thereof on the part of this
respondent and that he understands and
believes that most of the complainants
have known in general about these two
matters for the last seven or eight years
Wherefore, this respondent from all
the foregoing, claims that the said COM
plainants in making complaint as to said
check and said collection, which occurred
so long ago, and were settled and dis
posed of are not justified in bringing this
proceeding at this time.
Your respondent, answering the allega-
ton in the affidavit of Fred c. Gale filed
with this petition, denies the same in
toto and declares that 1t is absolutely
false.
3. The D. p. Prescott Matter.
This respondent answering relative to
the d. p. Prescott matters, says that he
was employed by said Prescott as coun-
sci in the suit of Bartlett VS.. Prescott
commencing in December, 1900, and from
thence up to the April term, 1904 in Wind
ham county court He AYERS that during
the whole progress of said case and all
the questions arising therein he acted in
good faith for the best interests of his
client, as he believed, and with the sole
purpose of protecting the interests of his
client, said Prescott in everything about
said case; that he never knowingly did
anything to prejudice the interests of his
client, but with all his zeal and ability
worked for his said clients interests; that
he brought suit of Crown & Bailey vs.
Bartlett upon a promissory note of said
Bartlett and trusted said Prescott as al
legged in complaint but did so with the
thorough understanding between all par
ties interested that as between Crown &
Bailey and Prescott his first service and
duty was to Prescott; that there never
was secured any judgment against said
Prescott as trustee in said Crown & Bailey
suit; that judgment was rendered in IA
vor of said Crown & Bailey against Bart
lett. the principal defendant. at the Sep
TENDER term of 1908 of Windham county
court, but that said case was then and al
ways thereafterward continued as to
trustees until the termination of the
Bartlett VS.. Prescott suit when the
Crown & Bailey suit was settled; that
this respondents employment and ac-
ton taken in the Crown & Bailey
suit were approved by said Prescott, was
known to him and other counsel asso-
ciated with the respondent for said Pres
colt during the entire time of the litiga-
ton, and was known to the court; that all
the same was in good faith that this re-
spondent never acted in a dual capacity
therein but always with the single pur-
pose of first securing the rights of said
Prescott in the Bartlett case. This re-
spondent denies that he owned the claim
or judgment of Crown & Bailey VS.. Bart
lett or any interest therein and he denies
that any liability he was under for said
Bailey in any way had to do with or in
fluenced his action in the Bartlett vs.
Prescott case. This respondent AYERS
that soon after the beginning of the said
case of Bartlett VS.. Prescott another at
torney A. F. Schwenk of Brattleboro
was employed by said Prescott as counsel
therein with the respondent and thence
forward acted with him as such counsel
and was privy to all moves made by coun-
sci including said trustee suit and all that
was done for and in behalf of said Pres
colt, and that later in the case another
attorney, John e. Gale of Guilford, was
likewise employed by said Prescott and
thenceforward said Gale was always
privy to all that was done in and about
said suits; that on different times during
the progress of said case Prescott employ
ed other counsel to wit. John H. Senter
of Montpelier. and Elisha May of st.
Johnsbury.
This respondent further answering,
without going into detail, denies each and
every one of the allegations of unpro-
fessional conduct set forth in the af1davit
of said D. p. Prescott filed with this COM
plant, and denies that there was ever
any neglect, indifference, collision. fraud
or wrong doing of any character on his
part in and about the matters of said
Prescott in any way, shape or form
This respondent, further answering, says
that something more than year ago he
learned that said Prescott had made some
statements charging this respondent with
being unfaithful to him in said litigation
and of having acted in a dual capacity
and that thereupon the said Prescott not
having paid and settled the respondents
account against him for services in said
case, he demanded settlement of said
Prescott, giving him notice that If the
settlement was not made he, this respon-
dent would sue Prescott therefor because
. of the statements which said Prescott
had made as aforesaid, and in order to
give said Prescott an opportunity to make
defense against said account on said
grounds; that Prescott refused to pay and
thereupon the respondent brought suit
against him; that judgment to account
thereon was rendered April term, 1905, of
Windham county court and an auditor
appointed and that hearing was had
thereon before A. w. Butler the auditor
appointed by the court TO hear and de-
termine the same at Newfane September
g. 1905. Mr.. Prescott was present with
counsel, evidence on both sides was pro-
duced, Prescott defending said suit on
the grounds that the respondent had been
unfaithful to him and had acted in a dual
capacity and, after hearing the parties
and their evidence and counsel, the au-
ditor made his report to the court, the
substance of which relative to the matters
of said defense is as follows: Evidence
of both sides shows that Mr.. Fits sued
Mr.. Bartlett and trusted Mr.. Prescott
with others, but it also shows that Mr..
Prescott became informed of that fact
and was told by Mr.. Fits that he would
protect Prescott's interests in the trustee
process in preference to those of the other
clients and the other clients so under
stood; that Mr.. Prescott still retained Mr..
Fits . ] find that Mr.. Fits was not
acting in a dual capacity as claimed by
the defendant; that Mr.. Fits did not be-
cause of the suit in which Mr.. Prescott
was trusted with others endanger Mr..
Prescott's interests in the Bartlett case;
also that Mr.. Fitts's charges were in all
respects reasonable and just for the work
performed and that said work was well
and faithfully done" Upon said report
judgment was rendered for this respon-
dent to recover of Prescott the full
amount claimed NV this resDondent that