
    Thomas Ellzey et al. vs. William A. Stone.
    Where the facts of the ease are fairly left to the consideration of the jury, their verdict will not be disturbed, unless a great preponderance of testimony appear against it,
    S., being an attorney at law, was employed professionally by E. to defend certain suits specified in a list, then pending against E. for a fee in which E, gave S. his note ; S. afterwards agreed to defend E. gratuitously in all other suits against him at that term. There was a suit then pending against E. in a branch of which S. at a subsequent term took a fee against E. in an action on the note given for the fee ; E. set up a failure of consideration because S. had subsequently taken a fee against him ; it did not appear in proof that the suit in which S. became afterwards engaged against E. was one of those embraced in the list or not; the jury found for S. Held, that their verdict was not against evidence and should not be disturbed.
    In error from the Pike circuit court.
    William A. Stone, suing for the use of Charles W. Adams, brought an action of assumpsit against Thomas Ellzey, Noah R. Sparkman, and John Ellzey, upon a promissory note made by them payable to Stone. The plea was non assumpsit. A trial was had and the jury found a verdict for the plaintiff below. The defendants made a motion for a new trial, which was overruled, whereupon they embodied the testimony in a bill of exceptions.
    The plaintiff read the note sued on, which was a joint note of the defendants for four hundred dollars, dated May 5th, 1841, and payable six months after date.
    John T. Lamkin, on the part of the defence, then testified that Stone had stated to him, that the note sued on had been given for professional services rendered by him for Thomas Ellzey, one of the makers; that Ellzey had presented a list of suits to Stone to defend, which list Stone showed to witness, who told Stone that he ought to ask $800 to attend to them, and that thereupon Stone agreed with Ellzey to attend to the suits at that, the May term, 1841, of the Pike circuit court, and 
      at no other, for the sum of four hundred dollars; and that it was then agreed that if there should be any other suit at that term of the court against Ellzey, Stone should attend to it without additional fee. The witness did not remember whether the trial of the right ef property to two slaves between William Harris and Thomas Ellzey was included in the list or not, but that Stone had attended for Ellzey to a suit for slander, wherein the damages were laid at ten thousand dollars, and two other suits for malicious prosecution, wherein the damages were laid at five thousand each.
    Felix G. Davidson, for defence,
    testified, that he heard a conversation between Stone and Thomas Ellzey, the Saturday before the May term, 1841, of the court, in relation to the suits then pending against Ellzey; that the case of the trial of the right of property for the two slaves against said Ellzey, was particularly mentioned, and Stone’s especial attention invoked to it; who told Ellzey that the subscribing witness to a bill of sale was essential to maintain his case, and the witness was especially deputed to subpoena him.
    Theodore D. Padelford, the clerk of the court, for the defence, testified that there were two cases against Ellzey pending at May term, 1841, for the trial of the right of property to two slaves, levied on under executions; one in favor of Harris, and the other in favor of James B. Quin, against Ellzey. That Stone appeared at the May Term, 1841, for Ellzey in the latter case, and tendered an issue for him, and the cause was continued ; no issue was tendered at that term in the Harris case; that after the May term Stone appeared in neither case for Ellzey, but did appear in the Harris case, after that term, against Ellzey and for Harris.
    The records in the trials of the right of property were also read to the jury.
    Davidson further stated that he did not hear all the conversation between Stone and Ellzey, and he heard no contract made.
    It was in proof that Stone exerted himself with zeal and ability in the slander suit and gained it; gained also one of the suits for malicious prosecution, and reduced the damages in the other to two hundred dollars; and that the trials of the right of property were lost for the want of the subscribing witness to the bill of sale, who could not be procured, being under an indictment and absconding; that there were some seven or eight cases in the list furnished Stone by Ellzey ; and in the conversation testified to by Davidson, some twelve or thirteen were spoken of, and that this conversation occurred before the contract was made between Stone and Ellzey. -
    The court below gave numerous instructions, which are not here further noticed, as they did not enter into the consideration and opinion of the court as pronounced.
   Mr. Justice Thacheh

delivered the opinion of the court.

Writ of error to Pike county circuit court.

The plaintiff below instituted his suit upon a promissory note. The defence attempted to be set up was a failure of consideration. It appeared in evidence that the note was given in consideration of legal services to be rendered at the May term, 1841, of the Pike county circuit court, and at that term only. The evidence of one witness showed that the plaintiff below, an attorney at law, contracted with one of the defendants to defend certain suits in which he was party, then pending in that court, a list whereof was made by that defendant and presented to his attorney, and that subsequently the plaintiff below agreed to gratuitously defend him in all other of his suits at that term. The description of the suits contained in the list does not appear in evidence. Another witness testified to a portion of a conversation between the parties respecting a suit pending at the same term against the defendant, in a branch of which the plaintiff below, at a subsequent term, became professionally engaged against the defendant. Upon a careful examination of the evidence, it does not seem to us that the defendant made out his defence. By his own witnesses it appears tha.t a list of the cases to be defended was made out by him, and that their defence constituted the consideration of the note; but it does not appear that the plaintiff below failed to defend either of these cases, which could alone affect the contract. ' The various charges of the court below having been based exclusively upon the evidence in defence, no examination of their fitness need be made. This case, moreover, is one which presents a question of fact peculiarly within the province of a jury. But as the evidence shows the facts were fairly left to the consideration of a jury, this court would feel itself unwilling to disturb their verdict, unless a great preponderance of testimony appeared against it. Such is not the case, in our opinion, in this instance,

Judgment affirmed.  