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

rendered for the plaintiffs on the remain
ing count and continued as to the
trustees. No judgment was ever rendered
against the trustee. The case was con-
tlnued as to the trustees from term to
term, till the September term, 1904, when
II was entered settled and discontinued.
Soon after said suit was discontinued
as to the common counts and the count
on said $115 note, said Fits as the attor-
ney Of Crown & Bailey, who owned said
note, brought suit thereon In the name
of said Charles @. Bartlett the payee
thereof, against said Dodge & Streeter,
the makers Said Fits entered his APP
pearance for the nominal plaintiff in that
case, and mas since appeared for the
nominal plaintiff therein, though his real
clients were, and all the time have been,
said Crown e. Bailey, who are the real
plaintiffs. Said suit is still pending in
Windham county court, and no judgment
Of any kind has ever been entered therein.
The case Of Bartlett vs. Prescott q
trustees, was tried before a referee.
The principal grounds Of the complaint
Of said Prescott are as follows:
"a That said Fits, at the same time,
acted In the dual capacity Of counsel for
Prescott In the suit Of Bartlett vs.. Pres
colt, and as virtual counsel against him
In said other suit in which said Prescott
was trustee.
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 faithful
ly protected the interests Of said Prescott
In preference to the interests OF said other
parties whom he represented.
(2) That in the hearing before the
referee in the case Of Bartlett VS.. Pres
colt, said Fits permitted Bartlett to
testify falsely. for which he was after
wards indicted.
We do not find that said Fits could
have prevented this. II true; but that he
did thoroughly cross-examine said Bart
lett, and did all he honorably could to
discredit his testimony.
(9 That said Fits agreed at the hear
ing before. the referee In Bartlett vs..
Prescott, contrary to said Prescott's posi-
tive instructions, that the plalntin might
file amended specifications in said cause
We find that the plaintiffs original
specifications were made upon the theory
that there had been a settlement between
said Bartlett and Prescott, on July 1,
1896, and that there was then due to Bart
lett from Prescott the sum OF S372. Plain
tiff called said Prescott as the first wit
ness, and he denied that there ever had
been any such settlement. The plaintiff
then moved to amend his specification by
AiiAuaAilk al TIE ANtNllN 0A uGdl OE-
tween the parties. While that motion was
pending before the referee, the attorneys
for the parties stipulated that plaintiff
might amend his specifications within a
specified time, and that the defendant
should have a certain specified time there
after within which to file his amended
pleadings, and his specifications In Offset
Said Fits had some talk with Prescott
about agreeing to this amendment, and
told said Prescott that It was customary
to allow amendments In sucn circum-
stances and that unless they so agreed
the referee would allow IL. In all this we
fail to find anything unprofessional on the
part of said Fits
90 That when said Prescott found
among the files in said case written
motion 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 II, refused
to go to the clerks Office and see Il.
We fail to find anything unprofessional
on the part OF said Fits In this matter
The motion is in the ordinary form. and
a copy is hereto attached, and Is marked
Exhibit No. T." Said motion came on
for hearing at the April term. 1903, OF said
court and was argued by counsel. The
hearing before the referee was aot then
finished. or at least the final report had
not then been filed. and upon the sugges-
ton Of said Fits. the court ordered the
matter to be held open till the final report
should be filed.
go That at said hearing before the
referee. said Fits did not use certain wit
nesses that said Prescott urged him to use
We find that this claim Is not sustained
by the evidence.
(S) That in the early stages OF said
suit said Prescott went to the ONCE OF said
Fits with $3.50 and wanted a tender made
OF that amount and that said Fits adj
vised him not to make a tender, as that
would be an admission OF liability.
We find that said Prescott had no reason
TO expect that the case could be settled
for $3.50 We think that the advisabiIlty
OF tender in the circumstances was very
doubtful, and that II would probably have
had the effect OF destroying Prescott's
defence.
% That Prescott thought said Fits
with his ability. ought to have accom-
pllshed more than he did.
This Is a disappointment often ex-
perienced by those cast in a suit
There is no question that said Prescott
bitterly felt his defeat, and sincerely
blamed both the referee and said Fits
BY the first report the referee found
against him in the sum OF S3O14.7O. It
seems that this report was full OF errors
SAID Prescotts attorneys then consisting
OF Mr. Fits, Mr. Schwenk, Mr.. Gale, and
Mr.. John II. Senter, succeeded In getting
the report re-committed; and in the sec
ond report the balance found against said
Prescott was cut down to $215l. As, and said
Prescott finally settled the suit for $500
Said Prescott testified, In answer to
questions by Mr.. Spellman. that said Fits
sued him to recover his charges in said
Bartlett Prescott suit; that the action
was book account and was tried before
an auditor, Mr.. Spellman appearing for
said Prescott; that the defence was put
upon the ground that said Fits was un-
faithful to said Prescott and had acted In
a dual capacity in the manner hereinbe-
fore stated The report was in favor Of
the said Fits.
From a consideration OF all the facts
and circumstances in this case, we find
that In all the relations OF said Fits with
said Prescott In said litigation, he acted
in the interest Of said Prescott zealously,
faithfully and to the best Of his ability.
There was little apparent ground for
the charges made against him, and that
little rested largely, as we believe, In the
misrepresentation upon the part OF certain
laymen, honest and OF good intention, due
TO their lack OF familiarity with the rules
and practice OF the courts, and to the APP
parently unfortunate outcome of one par
tcular suit. In this case said Fits was
the attorney for the defeated party, and he
had as his associates four good lawyers
from Windham. Washington and Caledonia
counties. 1t is giving Mr.. Fits too much
credit TO attribute to him all the fault, II
fault there was.
then financial condition Of mixing his
cliant'a monav With HE o.,, Tho v,,lokaaro