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 *24cases, 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.