Windham County reformer. (Brattleboro, Vt.) 1901-1906, 1906-02-16
Fits IS ExoNERATED


a receipt 10 be given TO the officer who mad
the attachment, which bound the signers, u
default Of returning the property therein dc
scribed TO answer the execution, 10 pay suel
JUDGMENT a. might be recovered by th'
plaintiff Ia said suit,
I'VE find that said Fits had nothing /,
do with the giving 81 this receipt, and tia
he did not know " It's existence tn his az
ter Judgment was rendered But IL was OF
fered In evidence, and copy thereof n
marked Exhibit r., which j. attached Il
this report and made a part thereof.
''on January 80, 1901 said Fits was 70
quested by Crown 4 Bailey 10 bring for them
a suit In assumpslt against said Bartlett and
10 trustee said Prescott. Whereupon said
Fits informed Crown 4 Bailey that he was
the retained counsel OF said Prescott, that he
would 20 50 far as TO bring said suit, and
trustee said Prescott, hut that In all matters
connected herewith he should protect the
interests OF said Prescott IN preference ia
the interests OF Crown 4 Bailey, and that,
II the ease came to trial, Crown a Bailey
must procure other counsel, With this un.
derstanding said Fits brought suit in as.
sumpsit for said Grown Bailey against
said Bartlett, aud trustecd said Prescott
Said suit was returnable TO the Wndham
county court. The writ was dated January
so, 1901 was served and entered and dock,
eied In said court OF that day. Said Fits
Immediately entered his appearance for the
plaintiffs Crown & Bailey, and continued a
such counsel while the case remained in
writ had been served upon Prescott said
Fits had conference with Prescott and
informed him under what conditions he had
brought said suit, as above stated; that he
should at all times protect his interests there.
in In preference to the interests Of Crown &
Bailey; and that, II Prescott was not salts.
fed with that arrangement he would i'm.
mediatey sever his connection with Crown 4
Bailey, or with Prescott, just as Prescott
should elect, Thereupon Prescott expressed
himself as satisfied with the matter as II
Stood and never made any complaint or
found any fault with said Fits till after the
case Of Bartlett VS.. Prescott and trustees
was ended.
1.-THE declaration in said ease OF Crown (
Bailey VS. Bartlett and said Prescott as trus.
tee consisted of the common counts in as
sumpsit, and two special counts. The first
special count was on promissory note for
$4,000 given by one Powers TO Bartlett and
by the latter endorsed to the plaintiffs. The
second special count was on note for $4,000
given by Edwin Dodge and Nina Streeter 10
Bartlett, and by them endorsed to the plain.
tiffs. The plaintiffs claimed to recover only
on these two notes. Said Fits soon dis
covered that the $1,000 note was not negot.
able, and that he could not recover thereon
in that suit The docket entries show that
ON November Is, 1901, the suit was diScon-
1 tinued as to the common courts and the spe.
cial court on said $4,000 note, and that judg.
ment was rendered for the plaintiff the
remaining count, and continued as 10 trus.
tees. No Judgment was ever rendered against
the trustee. me case was continued rs 10
the trustees from term to term, till the Sep
TENDER term of 1904, when il was entered
settled and discontinued
Soon after said suit was discontinued
as to the common counts and the count on
said $4,000 note said Fits as the attorney
/ of Crown & Bailey, who owned said note,
brought suit thereon in the name OF said
Charles G.. Bartlett, the payee thereof
Said Fits entered his appearance for the
nominal plaintiff in that case. and has
since appeared for the nominal plaintiff
therein though his real clients were and
all the time have been, said Grown & Bailey,
who are the real plaintiffs. Said suit is still
pending in Wndham county court and no
Judgment Of any kind has ever been entered
therein.
1.-THE case Of Bartlett VS. Prescott ( trus
/ tees was tried before referee.
The principal grounds Of the complaint
of said Prescott are as follows;
I'D That said Fits, al the same time,
acted in the dual capacity OF counsel for
1 Prescott in the suit OF Bartlett Prescott
and as virtual counsel against him in said
other suits in which said Prescott was trus.
Itee.
"But we find that said Fits did what
service he performed in these suits with the
! full knowledge and consent Of said Prescott,
and that said Fits in no way prejudiced the
interests of said Prescott thereby but that
| he at all times faithfully protected the in.
terests of said Prescott in preference to the
interests Of said other parties whom he rep
resented
''(2) That in the hearing before the ref.
cree in the case Of Bartlett vs., Prescott, said
Fits permitted Bartlett 10 testify falsely,
for which he afterwards indicted
we do not find that said Fits could
have prevented this, II true; but that he did
thoroughly cross.examine said Bartlett and
did all he honorably coald to discredit his
testimony.
ing before the referee In Bartlett VS.. Pres
colt, contrary to said PrescOtt's positive in
structions, that the plaintiff might file
amended specifications in said cause
1--WE find that the plaintiffs original
specifications We're made upon the theory
that there had been a settlement between
said Bartlett and Prescott on July !, 1906,
and that there was then due to Bartlett
tiff called said Prescott as the first witness,
and he denied that there ever had been any
such settlement. The plaintiff then moved to
amend his specification by including therein
all the items of deal between the parties.
While that motion was pending before the
referee the attorneys for the parties stipuu
lated that plaintiff might amend his specih
cations within a specified time, and that the
defendant should have certain specified
time thereafter within which to file his
amended pleadings, and his specifications in
Offset. Said Fits had some talk with Pres,
told said Prescott that il was customary to
allow amendments in such circumstances
and that unless they so agreed the referee
allow H..
anything unprofessional ON the part of said
40 That when said Prescott found
among the files in said case a written mo-
ton by the plaintiff to raise the ad damnum
with no filing by the clerk upon it,, and
called the matter to the attention OF SAID
Fits, the latter, though saying he did not
know anything about it, refused to go 10
the clerk S office and see it.
1--WE fail to find anything unprofessiomal
on the part of said Fits in this matter me
motion is in the ordinary form ana copy
is hereto attached, and is marked EXHIBIT
the April term 1908, of said court ard was
argued by counsel. The hearing before the
referee was not then finished, or at least the
final report had not then been filed, ana upon
the suggestion of said Fits the court or,
dered the matter to be held open till the final
report should be fled. ~,
's(5) That at said hearing before the
referee, said Fits did not use certain wit
1--WE find that this claim is not sustained
by the evidence.
800 That in the early, stages Of said
suit said Prescott went to the othce, OF said
of that amount, and that said Fits advised
him not to make a tender, as that would De
an admission of liability.
''We find that said Prescott mad no reason
tn eypect that the case could be settled Tor
$3.50. We think that the advisability OF a
lander in the circumstances was very doubt,
full and that it would probably nave hao
the effect Of DESTROYING Prescott aeien Ftts
with his ability, ought to have accomplished
more than he did.
''This is disappointment often expert
enced by those cast in suit. -, prosoott
''There is no question that sald frescot,
bitterly felt his defeat, and sincerely blamed
both the referee and said Fits. ny the hrst
report the referee found against MN IN tne
sum of s3,O147O. 1t seems that this report
Prescott