dissenting. If the respondent’s motion to recommit the report to the commissioners for further findings was rightfully denied, then, in my opinion, the judgment is right; but I do not concur in the action of a majority of the court in denying this motion and entering final judgment, without further hearing before the commissioners.
On the hearing before this court upon the commissioners’ report, the respondent was allowed, in his defence, to make an oral statement, in which he claimed that, during his term of office, he had been accustomed to bring suits on such forfeited recognizances, returnable before the city court; that said court, in cases where the respondents had been re-arrested or surrendered by their sureties, invariably rendered judgment for a nominal sum in damages, or a sum *89that would make good any expense incurred by the State by reason of the non-appearance of the respondent; that he understood and believed, at the time he brought the suits in question before the city court, and at the time judgments were entered therein, that it had been the uniform practice of his predecessors in office to bring suits in like manner before the city court, and that like judgments had been rendered therein; that his action, and the action of the city court and of his predecessors in office, had never before been questioned or criticised by the auditor of accounts or by any court; that at the time of the bringing of said suits and rendering of said judgments, he, in good faith, honestly believed that, when the surety returned his principal into custody and paid such expense as had been incurred by reason of the non-appearance of the principal, he had fully performed the obligation assumed by his recognizance; that, in all he did, he, in good faith, believed he was pursuing, and that the city court was carrying out, a practice that was well known to the auditor of accounts and other officials of the State; that it had been the practice of the Rutland County Court, when a respondent was returned into custody, to chancer the recognizance to a nominal sum, or a sum equal to any expense incurred by reason of the failure of the surety to have his principal in court when called upon to do so; that it never occurred to him that the judge did not know and understand said practice, or that the judge expected any other course would be pursued; that he supposed, when the judge told him that he regarded it as his duty to sue and collect forfeitures,, the judge had reference to cases in which respondents were not returned into custody, and not to cases where the respondents had been thus returned; that, when he wrote that letter to the judge, he had in mind this class of cases, and, when he said in his letter he had brought suits, he referred to this class of cases; that, at the time he wrote the letter, all the cases where respondents had not been arrested or returned -into custody were then *90pending and had not been disposed of in the city court; that, by reason of the uniform practice, which he supposed was well understood by the presiding judge, to render judgment, for a nominal sum where respondents had been returned into custody, it did not occur to him that it was material to mention these cases as having been disposed of; and that he had no intention to deceive the judge, but supposed he had disposed of the cases in the way and manner that the presiding judge expected they would be disposed of. And he insists, that, inasmuch, as he exacted from the several sureties all that he, in good faith, believed to be justly due, and in so doing had followed a practice that had been approved of, and acquiesced in, by the auditor of accounts, and that had been observed by his predecessors in office and by the Rutland County Court, it ought not to be adjudged that he had not acted in good faith to his client and to the court; and that, if the judge was deceived, it was because the judge did not know or understand what the practice had been in such cases, and not by reason of any intentional wrong on his part.
If the facts claimed in this statement were established, they would be material and ought to be considered in determining whether the respondent acted with fidelity to his client, the State, and to the court. They tend to show that the respondent, in good faith, believed, that, when the sureties in the several causes returned their principals into custody and paid the expense incurred by the State by reason of their failure to have their principals in court at the time they were first called upon to do so, they had done their full duty; that nothing further ought, in justice, to be required of them; and that the Rutland County Court, the Rutland City Court and the auditor of accounts had given such a construction to the statute.
The statute makes it the duty of the court, on hearing a motion to chancer bonds in a criminal cause, to consider in favor of the surety the fact that he has delivered his principal *91in court. V. S. 2037. And in actions brought to recover the penalty or forfeiture annexed to a bond of recognizance taken in a criminal cause, the court may reduce the penalty of such bond and render judgment therein as circumstances require. V. S. 2038.
If the respondent made out writs for the recovery of the sums forfeited in the several causes, supposing that he had included all such forfeitures, and, before-the writs were served or judgments were rendered, the principals were returned into custody, and the respondent could not have recovered the expense he had incurred in making the writs except by proceeding to judgment in the several suits, and he did proceed for this purpose, believing, that, by the construction given to the statute by the courts in Rutland County and the auditor of accounts, only nominal damages were required, and accepted without objection judgments for such damages, believing that the sureties had so far performed and kept the conditions of the recognizances they had entered into that nothing further ought to be required, and that such judgments were in conformity to the usual practice, and the only practice known to him, it is difficult to see wherein he has acted corruptly, or intentionally omitted to discharge his official duty, by not insisting upon judgments for greater sums. The practice and the construction of the statute may have been wrong, and there may have been reasons in these particular cases for a departure from the usual practice and for insisting upon a stricter construction of the statute; but, if it did not occur to the respondent that these cases were exceptional, and that the practice ought not to control, and the necessity for a departure from such usual practice and a stricter construction of the statute was in no way brought to his attention, and he, in good faith, followed such practice and construction, believing it to be just and right, it ought not to be held that he did not act with fidelity to his client, because he did not disregard such practice and construction and adopt some other.
*92If the facts are as now claimed by the respondent in his oral statement, they should also be weighed and considered in determining whether he intended to deceive the presiding judge of the county court when he wrote the letter of December 1st. If the statute had received the construction given to it by him, and the practice had uniformly been in conformity to such construction, and this was known to him and not to the judge, and this construction and practice had not, to the knowledge of the respondent, been questioned, then he may not have understood the judge as the judge intended he should understand him when he said, “I want you to sue and collect these recognizances.”
The respondent having in mind the construction that had been given to the statute, and the practice, and not knowing that the judge did not know of such practice, or that such construction had been given to the statute, may have understood as he claims that the judge referred to cases in which the respondents had not been returned into custody, and had this class of cases in mind when he wrote the letter; and he may have intended to refer to this class of cases when he wrote that he had commenced suits. It appears from the report of the commissioners that suits had been commenced in this class of cases and were still pending. If the respondent, when he wrote to the judge, had this class of cases in mind, and had understood the judge as he now claims, he may well claim that he believed what he wrote was the whole truth, and that he did not intentionally conceal any facts respecting the causes he was writing about, that were material for the judge to know in passing upon the question of whether he was entitled to a certificate. What he stated in his letter was in fact true. Suits had been commenced, and that was all that had been done in those cases that he claims he had in mind. If he did so understand, there was no occasion for saying more; and, if the judge had known of the construction given to the statute, and the practice, he probably would not have been *93deceived or misled by the letter. The judge, not knowing the practice that had prevailed in Rutland County, nor the construction there given to the statute, was doubtless misled and deceived by the respondent’s letter. But for the purposes of this case, this fact is immaterial, provided the respondent acted in good faith and did not intentionally mislead or deceive the judge. The inquiry should be limited to whether the respondent, in the conduct of the suits in question, acted with fidelity to his client, the State, and whether he intentionally deceived the presiding judge.
The court having permitted the respondent (who is still an officer of the court) to make a statement of claimed facts, which do not appear of record, it ought, in my judgment, to assume, in so far as those facts do not conflict with the findings already made by the commissioners, that those claims are made in good faith, and, that, on re-hearing before the commissioners, he will be able to produce evidence tending to establish such facts. The importance of such evidence to a right determination of the case is apparent.
If the respondent made a mistake in placing his case upon the grounds he did before the commissioners, and in omitting to present to them facts that he has, by his statement, presented to the court, it ought not to be held that it is too late for him to rectify such a mistake. Believing that the respondent, in his oral statement before the court, has submitted a view of his case not fully presented or considered at the hearing before the commissioners, I would recommit the report and give him an opportunity to thus present it to them.
The commissioners find that, “assuming that the respondent actively contributed nothing to bring about the results in these cases, yet his passive indifference to, and acquiescence in, those proceedings constitute an infidelity to his client’s interests, equal to that which an active contribution would have been.” This, as I understand the report, is the infidelity of the respondent to his client found by the *94commissioners. If the judgments in the several causes were in accordance with the construction given to the statute by the courts, the usual practice of the courts, the only practice known to the respondent, and were in fact right, then indifference and acquiescence on the part of the respondent in obtaining them did not constitute infidelity to his client; and it was material for him to show that the judgments were right, or in accordance with the construction the courts had given to the statute, and that he acted in good faith, believing them, to be right; and he offered to show individual cases, similar to those in question, in which the Rutland County Court rendered judgments for nominal damages. The commissioners ruled, “that it was not competent to show a custom in that manner, even if the fact of there being a custom was material.” To- this ruling the respondent excepted. I regard this in the nature of an offer to show what construction the court had given to the statute in cases similar to those in question; and if the respondent had knowledge that the statute had received the construction claimed, and the action of the court in this respect led him to an honest belief that he ought not to insist upon judgments for more than nominal sums, such construction was material and ought to have been considered by the commissioners in determining whether the respondent acted in good faith.
In this connection, a former judge of the court testified, and the commissioners found, that, in this class of cases, when respondents were re-arrested, the court generally chancered the bail to a nominal sum, one dollar, five dollars or twenty-five dollars, and that judgment was rendered in each case according to the conditions and circumstances attending it. While the testimony thus received was material, I do not think it rendered the testimony that was offered and excluded immaterial. The respondent may not havejknown that judgment was rendered in each case *95according to the conditions and circumstances attending it, and may have been influenced in the disposition of the cases by the construction the statute had received in individual cases that were similar to those in question. It does not appear from the report that the respondent offered to show that he knew of the construction the statute had received, nor that he was influenced by such construction; and, by the rules that govern in actions at law, he cannot, as a matter of right, insist upon a re-committal of the report. But in investigations where goodfaith is the vital, if not the only, issue, these rules ought not to be held controlling.
The object and purpose of this proceeding being to determine whether the respondent has so conducted himself in his office of attorney of this court as to merit suspension or disbarment, the court ought, in my judgment, of its own motion, to order further hearing and further facts to be brought upon the record, whenever it considers such hearing and facts material for a right determination of the question of the fitness of a respondent to remain an officer of the court. In my judgment, the court ought not, and its commissioners should not be required, to follow strictly the common law rules of procedure, when a proper regard for the rights of the respondent suggest that some other course ought to be pursued.
From the rulings of the commissioners, and their entire report, I think it doubtful whether they considered the construction of the statute that had been given by the court material, and whether, in making their findings, they took into consideration. the practice of the court that may have influenced the respondent in the disposition of the cases, and in writing to the judge as he did. I would not leave a matter so vital in doubt. I would order a further hearing and direct the commissioners to receive the evidence that was offered and excluded, and to hear evidence and report respecting all the matters herein suggested, and particularly to hear evidence and report respecting any *96general or particular practice, in cases where principals are returned into custody, that had come to the respondent’s knowledge, and respecting the construction that had generally, and in particular cases, been given to the statute relating to forfeited bail in criminal cases, and to consider all facts that they may find respecting such construction of the statute and practice, and the respondent’s knowledge thereof, that in any way influenced him in the disposition of the suits in question, or in writing as he did to the judge, in passing upon the question of whether the respondent acted with fidelity to his client, and whether he intentionally deceived or misled the presiding judge.