ABBEVILLE CO. SC
COURT RECORDS
 

Abbeville Co. SC Equity Court Record Index (FHL film 1,025,630; from Louis Boone 9/1984)
      Patrick Duncan vs. Hugh Morrah?, Box 28, pkg 795
      Pat Duncan vs. Elizabeth Collins, 21-553
      John W. Drenan et al vs. Mary Drenan, 65, 10-304
      Pat Duncan vs. John Willson et al, 65, 29-855
      Pat Duncan vs. Elizabeth Collier &c, 38-2074
      Pat Duncan vs. Augustus Arnold et al, 38-2079
      Pat Duncan vs. Richard Hughes, 41-2216
      James J. Dinkin? Gdn. vs Eliz., Wm. & Z. Bull, 43-2383
      Pat Duncan vs. Pleasant Lowe, 45-2514
      Pat Duncan vs. Joseph Irans, 45-2515
      Pat Duncan vs. Augustus Arnold, 45-2516
      Patrick Duncan vs. A. Arnold, 50-2745
      Robt. Duncan Gdn vs. John Ison, 54-3087

Abbeville Co. SC Equity Court Records (Index 1791-1906 on FHL film 181,621)
      Box 21, pkg.553: 15 June 1838, Pat Duncan vs. Elizabeth Collier et al, 1838 bill to foreclose mortgage; principal and interest total $548.21 on June 4; defendant to deliver possession to purchaser. (FHL film 181,642)
      Box 28, pkg.795: 1829, Patrick Duncan vs. Hugh Moriah, June, 1827; defendant lost case, no mention of what the case was about. (FHL film 181,649)

Abbeville Co. SC Equity Court Records
      Probate Court of Ordinary, Box 122, pkg. 3594, Estate of Eliza R. & Jno. Upson, minors, 1850; Statement of Settlement 14 Sept. 1858 by Robt. Drennan, guardian; includes receipt by John D. Upson from Robert Drennan who was his guardian, 14 Sept. 1858. Second return was 1850; receipts signed by Robt. Drennen 4 March 1858. Other documents not copied, all "Robt. Drennan" or Drennen", not Duncan. (FHL film 181,737, from index on FHL film 181,681)
      Equity Court, Box 54, pkg. 3087, Robert Duncan guardian vs. John Upson (not Ison) (FHL film 181,662)
            Petition of Robert Duncan to be appointed guardian; statement that Robert Duncan was appointed guardian at his own expense of the minor children of John Upson, to wit, Eliza J. Upson and Holly Upson, with a sut? to entitle him to receive monies in the state of California said to be due the minors; that the monies have not been received and are not likely to be received; the minors having no other estate in hands of guardian, Robert Duncan be excused from making reports until he receives the money. /s/ Benj. F. Dunkin. (no date)
 

"Reports of cases determined in the Constitutional Court of South Carolina" by Henry Junius Nott and David James M'Cord, Counsellors at Law, Vol.II, Containing Decisions from May Term, 1819, to November Term, 1820, inclusive; second edition; ("Nott & McCord") Vol.2, pgs.400 to 409 (California State Law Library, Sacramento, 1/2004)
      PATRICK DUNCAN v. DAVID BEARD, Administrator; Constitutional Court of South Carolina, Columbia; 2 Nott & McCord 400; May term, 1820.
      (MAD: headnotes not included here)
      TRESPASS to try title, tried before Mr. Justice COLCOCK, at Abbeville Court House, Spring term, 1819.
      Adam M'Kee, claimed to be the real defendant and was entered as such on the record.
      Plaintiff's title-- 1. A grant to William Levingston and his associates, dated 27th June, 1752, for 50,000 acres, tract No.3, by James Glenn, governor of the then province.
      2. Lease and release from William Levingston to John Hamilton, dated 25th and 26th June, 1753, for 200,000 acres, including tract No. 3.
      Richard A. Rapley, a witness, sworn, proved Le Britton's handwriting, who was one of the subscribing witnesses to this conveyance, but did not know Barnard, the other witness to the deed; both of them lived in England, and were dead, as witness understood before he left it. Memorandum on the deed, that it was proven before Thomas Rawlinson, mayor of London, the 11th May, 1754, by James Bernard. Witness Rapley came here in 1770, or 1771, as the agent of Salvadore, in 1772, or 1773. He resurveyed the land, and took possession, suing those who held out, and leasing to others. Only two held out. He had all the papers relating to the title, and this deed and grant produced now among them. The grants had seals to them at the time he had them, both for No.3 and 4. They were broken by being carried about, and he believes he cut off the remains of them. He continued in possession until 1784, or 1785, when Salvadore came in, and he removed away to the lower country, but returned again.
      3. Lease and release from John Hamilton to Joseph Salvadore, dated 27th and 28th November, 1755, for 100,000 acres, No.3 and 4. Rapley has often seen Hamilton's handwriting, but did not know him. Knows his writing from a correspondence; has heard that James Grindlay, one of the witnesses, was dead before he left England; knows nothing of John Jackson, the other witness. Recorded, in Charleston, 28th April 1766, by Fenwick Bull, register. Rapley knows F. Bull's writing; has often seen him write. Salvadore died about 1786, or 1787. He had a house at ----, in which he lived.
      4. Will of Joseph Salvadore, dated the 7th October, 1782. Rapley knows the hand and seal of the testator, but does not know the writing of either of the witnesses.
      5. Power of attorney for the heirs of Salvadore, to James Nicholson. Rapley knows the handwriting of Moses Salvadore, one of the subscribing witnesses, and also of Patrick Duncan, another subscribing witness. He knows the writing of Abigail and Elizabeth Salvadore, but does not know that of Texiera and his wife, nor of F.A. Holland, notary public, another witness.
      6. Decree and proceedings in the Court of Equity, by Robert E. Griffin v. Nicholson. Report confirmed -- Land sold -- Sale confirmed.
      7. Deed from the commissioner in equity to Patrick Duncan. Francis Wardlaw, witness, saw it executed -- other witnesses who signed it with him, out of the State. Dated 8th July, 1816. For No.3 and 4, $13,682.
      The locus in quo, established by 'Squire Morran and that defendant lived within the lines of No.3.
      Jesse Calvert proved that the defendant was in possession of the land when he went away, five or six acres.
      On the part of defendant:
      A grant to John Dixon, for 1000 acres, dated June 1803.
      Deed from John Dixon to Adam M'Kee, dated 15th October, 1805. John Steal proved the execution of it, and that Michael M'Kee, the other witness who signed it at the same time with him, is in the western country. He also stated, that he knew Adam M'Kee the real defendant, to be in possession from the year 1803; that is, by him, the witness, as a tenant. He went in under a written instrument; but of this instrument he could give no account. Mr. Morran proved that the defendant's grant covers the land in dispute, and that he had understood, that David Beard, the nominal defendant, was a tenant of M'Kee.
      John M'Kee says, that David Beard was a tenant of his brother Adam. He understood it from both of them; he stated, that after Steal went out of possession, Beard worked it one year. Then one With, .. the next year. Then one Spencer, and then the widow Melford, and she has remained in possession ever since. On his cross examination, he could not fix the order in which these persons succeeded each other, but stated that the land had been always occupied by some one under the authority of his brother.
      Robert Breckenridge was called, but had forgotten or never knew any thing about the possession.
      In reply, Mr. Bowie stated, that he went into possession as a tenant of Salvadore, in 1772, or 1773; has paid rent for it to all the claimants, and still holds it; considers himself a tenant to whoever is the owner. He first paid rent to Rapley, as agent of Salvadore; afterwards to Salvadore himself; then to Mr. Wm. Tennant, as agent of the Philadelphia Company; his lease was for the residue of what had not been leased before. In the year 1774, he ran around the whole of the land, four tracts, for Salvadore, at the request of Rapley, as his agent.
      Mr. Rapley further proved that he is in possession of about 100 acres of No.3; has cultivated it for twenty or twenty-five years; he leased to Mr. Bowie, as the agent of Salvadore.
      The jury found a verdict for the plaintiff, and a motion was now made to set aside the verdict, and for a new trial, on the following grounds:
      1. Because the court ought to have rejected the grant to Wm. Levingston and his associates, as void for uncertainty, and forfeited for non-performance of the condition.
      2. Because the court permitted the conveyance from Wm. Levingston to John Hamilton, to be given in evidence, without requiring the plaintiff to shew a transfer of the right of his associates.
      3. Because there was not sufficient proof of the will of Joseph Salvadore, no account having been given of the subscribing witness, and not sufficient proof of the codicil, there being no proof of the handwriting of one of the witnesses.
      4. Because the proceedings in the Court of Equity ought to have been rejected for irregularity.
      5. Because the heirs of Salvadore were bound to take by descent, and not by devise; and being aliens, no descent could be cast upon them.
      6. Because the power of attorney was insufficiently proven, inasmuch as there should have been some account given of the third subscribing witness, and proof of the handwriting of two of the parties, Susannah and her husband.
      7. Because the verdict of the jury was contrary to law, and the judge's charge upon the statute of limitations.
      8. Because the verdict was contrary to law and evidence, inasmuch as the defendant proved a title by possession.
      The opinion of the Court was delivered by Mr. Justice COLCOCK.
      The first ground presents two points for determination: First, whether the grant to William Levingston and his associates, is void for uncertainty? And, secondly, whether it is forfeited for non-performance of the condition? As to the first point there can be no doubt, as has been argued, that a deed may be void for uncertainty; but if a deed be in part certain, and in other part uncertain, it does not follow that it is void; for the rule is, that such construction shall be given, if possible, ut res magis valeat quam pereat. Now, as to Levingston, the deed is certain. It is in him; and our not being able to identify his associates does not render the deed void. The word has no technical meaning, but it bears a strong analogy to common parlance to the word assigns. And when we read the deed through, and see that the object was to settle an uninhabited portion of the country with a certain description of persons, it is easy to discover that it was intended by the grantor to vest the whole of the legal estate in Levingston, with authority to him to regrant or convey any part thereof to any persons as would associate with him in the undertaking to settle the land; and this view of the subject is supported by the deed which he afterwards makes to Hamilton, in which he styles him his associate. But if there had been persons in esse at the time, who were denominated his associates, who might then have taken under the grant, after a lapse of sixty years and an accompanying possession by those to whom Hamilton sold, a deed from the associates to Levingston, might be fairly presumed.
      Upon the second point in this ground, the plaintiff's counsel contended, that the condition being subsequent, it will be presumed to have been performed; and that if not, the grant must be set aside by a regular process of law. To which it was replied, that the grant reserved to the grantor the right of re-entry, on the failure to perform the condition, and that the subsequent grant may be considered as evidence of that re-entry, and the failure to perform the condition. It is certain, that where a grant has once passed the great seal, it cannot be revoked, except by some legal proceeding, and this for the most obvious reason. The party may have it in his power to shew a compliance with the condition, or a release from the performance of it. 6 Comyn's Digest, 63, letter D, 70. 5 Com. 274, title Patent. Despotic indeed would be that government which would exercise the power of revoking at will, all grants of land which it may have made to individuals, or of determining, without the intervention of a judicial tribunal, where there was ground for a revocation. The usual mode in England, is by scire facias in equity, or by process on the law side of the exchequer court. But if it were consistent with the principles of justice, that the sovereign power should of itself determine when a grant should be revoked; a second grant of land in this State should not be evidence of such revocation, for they are often made without the knowledge of the officer who is empowered to sign the grant. It not infrequently occurs that there are two or three grants for the same land, and the public officers perfectly ignorant of this fact. The younger grant in this case, then, cannot be considered as any evidence of the revocation of the elder, but that remains in full force.
      The second ground has been determined in the consideration of the first. A deed from the associates, if we can suppose them grantees, would be presumed, after a lapse of so many years, and a possession under Levingston.
      Upon the third ground, the insufficiency of the proof of the will, I take it to be a well established doctrine, that a deed of thirty years may be given in evidence, without proof of its execution, if accompanied by possession, and a mere entry for the purpose of resurvey, has been considered a sufficient possession. Reid v. Eifert, 1 Nott and M'Cord, 374. What are the reasons on which this rule is founded? 1. That after a lapse of thirty years it is difficult, and in most cases impossible, to procure the witnesses to the deed. Those who are the parties to a deed of thirty years standing, must be upwards of fifty years old, and a great portion of those who are born, die before that period. The second reason is, that possession, or an exercise of ownership, under the deed, is calculated to give authenticity to it. In my own opinion there is a possession under this will, for I consider the possession of Rapley, who obtained his possession as the agent of Salvadore, the possession of the devisees of Salvadore. He would not be permitted to set up an adverse title to them, and it is not necessary by the statue of ----, that he should have attorned. But if this be not clear, as is the opinion of my brethren, still the first reason of the rule applies to the case of this will, and another rule, in regard to papers other than deeds, is, that if they be found in the place in which they should be deposited, in pursuance of their object, that that circumstance, added to their being thirty years old, will raise a presumption in favor of their authenticity. Peake, 73. Phillips, 349. And Mr. Justice Buller says, "ancient writings, which are proved to have been found among deeds of evidences of land, may be given in evidence, although the execution cannot be proved; for it is hard to prove ancient things, and the finding of them in such a place is a presumption that they were honestly and fairly obtained, and preserved for use, and are free from the suspicions of dishonesty." N.P. 255. And Mr. Phillips, in pursuing the subject, observes, that "this observation on the necessity of shewing where the deed was found, seems to apply more particularly to those cases, where the character and authenticity of old writings depend, in some degree, on the nature of the place or custody, in which they have been kept;" and when they are produced from their proper repository, and have been properly preserved, it will not, after a certain time, be necessary to prove them. Phillips, 350. Now the will in this case was taken from the secretary's office, in Charleston, where, by the law then existing, all wills are required to be deposited, and is, upon the face of it, free from all suspicion of fraud, and appears to have been executed with all the formalities required by the statute. Again, in Phillips, 385, it is said, "where the subscribing witnesses are dead, and no proof of their handwriting can be obtained, as must frequently happen in the case of old wills, it will be sufficient to prove the signature of the testator alone." And the case of Calthorpe v. Gough, et al, 4 T.R. 707, is referred to, and although this point was not finally determined in the case, yet it is the expression of an opinion of a distinguished judge, and supported by the authority of a case decided by Sir Lloyd Kenyon, master of the rolls. In this case the handwriting and seal of the testator to the will were proven, and his handwriting to a codicil, made in the year 1786, not long before his death, and proof of the handwriting of one of the subscribing witnesses to the codicil, by one who could not undertake to say he had ever seen him write, but from the subscribing witness' having been a notary public, he had seen much of what was acknowledged to be his writing.
      But it was said, that there was no proof of the death of the subscribing witness; as to one, there was as much proof as is ever required. The witness, Mr. Rapley, says he has heard that one of them was dead, and when it is recollected that the will was executed thirty odd years ago, and in England, I think it a fair presumption that the others are also dead.
      The fourth ground requires no observation, for no argument is offered to shew any irregularity in the proceedings, and none is apparent on the face of them.
      The testator, by his will, devises his estate to his three daughters, in trust for his creditors.
      The fifth ground, therefore, cannot avail the defendant, for the children of the testator, Salvadore, I am inclined to think, must take, subject to the trust, or not at all. But if they were obliged to take by descent, their rights are protected by the 9th article of the treaty of 1794, which declares, that British subjects shall hold as before the war.
      Upon the sixth ground, I am of opinion that all the proof which the law requires, in such cases, was given. It was proven that the plaintiffs had been authorized to act for the heirs of Salvadore, as attorney. But there was no necessity to prove any thing about the power of attorney, in this case; that might have been a question in the Court of Equity, when the proceedings were going on there against the heirs of Salvadore; we have nothing to do with the agency of the plaintiff; he claims before us in his own right of a deed from the plaintiff.
      The two last grounds may be considered together; the jury were instructed, that if they believed that the real defendant, Adam M'Kee, had been in the possession of the land by his tenants, from the year 1805, to the commencement of this action, they ought to find for the defendant. Or if they doubted whether these persons, who were said to have been in possession, were the tenants of M'Kee; yet, if they were satisfied that there had been a continued and uninterrupted possession, though of different persons, not conveying to each other -- for that time, that then they ought to find for the defendant; and this I directed on the authority of the case of Mayrick v. White, decided in this court about the year 1808, or 1809; it was an action brought by myself. The case never met my approbation; but I considered myself bound by it. I am authorized to say, by my brethren, that they do not consider the case an authority, having only a verbal report of it. The question, then, whether these persons, said to be in possession, were the tenants of M'Kee, was one merely of fact, and for the determination of the jury. It was positively sworn to so far as regarded the possession after the deed from Dixon to M'Kee. It was not clearly and satisfactorily proven as to all who occupied, that they were tenants. And I am not dissatisfied with the verdict. The jury were acquainted with the witnesses, and all the circumstances attending that sort of possession and were, therefore, better qualified to determine on the fact than the court. Upon the whole, the objections to the plaintiff's title being overruled, and the jury having found against the defendants on the facts, the motion is discharged.
      Justices NOTT, JOHNSON, RICHARDSON and HUGER, concurred.
      NOBLE, for the motion.
      M'DUFFIE, contra.
 

"Reports of cases determined in the Constitutional Court of South Carolina" by D. J. McCord, A Member of the Columbia Bar, Vol.I, Being a continuation of Nott & McCord's Reports; Vol.I, pgs.149 to 155; Two volumes in One; ("McCord") Vol.I, pgs.100 to 104 (California State Law Library, Sacramento, 1/2004)
      PATRICK DUNCAN vs. C. BREITHAUPT, Esq., and the Honorable D.E. HUGER, executors of the last will and testament of BENJAMIN C. YANCEY, Esq., deceased, attorney at law; Constitutional Court of South Carolina; 1 McCord 149; May term, 1821.
      (MAD: headnotes not included here)
      This was an action of assumpsit on a note of hand, given in the lifetime of the intestate to the plaintiff for $810.
      On the part of the defendants, a discount for professional services rendered by the deceased, and amounting to $1500, was relied on in the defence.
      The following facts were satisfactorily established by the testimony, viz.: That the deceased had been employed by the plaintiff as counsel in the celebrated cases of the Jews' land, in Abbeville district. The occupants of those lands had been greatly anxious to retain the deceased as counsel in their behalf, and had offered him as a retaining fee from one thousand to twelve hundred dollars. A retaining fee to that amount, in those cases, would have been but a moderate allowance to a gentleman of Mr. Yancey's professional character and talents. On being retained by the plaintiff, the deceased used great diligence and exertion. He came from Charleston to the back country twice, to attend to the arrangement and preparation of those suits for trial. Each visit should be estimated at five hundred dollars. His last visit being at a time when it was dangerous to leave the city, had cost him his life. Those facts were for the most part testified to by gentlemen of undoubted respectability and integrity of character, (Messrs. Whitner and Lomax,) and who were particularly acquainted with the fact of the deceased having used his best and ablest exertions to promote his clients' success. Mr. McDuffie, too, the gentleman afterwards employed by the plaintiff, and who conducted those causes to a successful termination, testified, that a retaining fee of one thousand dollars to the deceased would have been moderate.
      For services thus proved, so important in their nature, where the confifidence (MAD: sic) and trust must have been so unbounded, emanating from a thorough and just sense of the extraordinary skill of the counsel employed, added to the consideration of the immense value of the property in contest, these, together with the successful termination of the question of legal right in favor of the plaintiff, induced the jury, (after deducting from the discount the amount of principal and interest due upon the note,) to find a verdict in favor of the defendants for the balance, amounting to $300. The present was therefore a motion for a new trial, on the following grounds:
      1st. Because the services rendered were anterior to the date of the note, and the jury ought to have presumed compensation for them had been rendered.
      2d. Because the services were not worth the amount allowed by the jury.
      3d. Because there was no evidence of a contract between the parties.
      4th. Because it appeared that if the services were rendered, they were rendered to Nicholson and Duncan, and not Duncan, the plaintiff alone.
      Mr. Justice GANTT delivered the opinion of the Court.
      The defence in this case rests upon the doctrine of implied contracts; a principle not confined in its operation, but applying indiscriminately to every employment. Under this head, Blackstone (443) says, "Implied contracts are such as reason and justice dictate, and which therefore the law presumes that every man undertakes to perform. As if I employ any person to do any business for me, or perform any work; the law implies that I undertook or contracted to pay him as much as his labour deserves." I take it therefore to be a correct and legal principle, that in suits requiring great professional labour, where much time must necessarily be consumed, and diligence and skill required in the preparation and management of them, an attorney may rightfully and legally charge, by way of counsel fee, a sum proportioned to the value of the services, and which a jury of the country, upon evidence before them, are competent to ascertain and decide upon. The handicraftsman employed to lay the foundation, and plan the superstructure of a house, can look with confidence to the law for a full indemnity for his services; and the law mechanic, in a great and difficult case, where mental skill and bodily exertion are to unite, in the foundation and structure of a suit at law, more than ordinarily complex and difficult, may with equal confidence and right look to the same principle for his indemnity. It would reflect infinite discredit to the law were it otherwise, whose rule is reason, and whose voice is justice and truth.
      It is certainly not a new case that gentlemen of the law are sometimes called upon to take part in the management of causes of great weight and difficulty, which do not stand upon the footing of ordinary suits, and which in justice to themselves they could never undertake, unless the principle before advanced was made applicable to them. At various times gentlemen of distinguished talents have been called on to afford occasional assistance in the important contest about the Jews' land. My brother NOTT, who resided in the interior part of the state, when at the bar, was paid $500 for once attending at Abbeville court. And although I do not know the fact, yet I am persuaded that Col. Drayton, of distinguished talents, and who resides in the city of Charleston, must have received, when called on for a similar purpose, double that sum.
      The property in contest, equal in value to a Royal Domain, had been claimed by several, among whom the present plaintiff had never been named as a claimant, till evidenced by those actions. The name of Yancey, as being of counsel for him, added weight and importance to his claim. And well it might, for who more distinguished than the deceased in the line of his profession? Who ever possessed a more lofty spirit, or more towering mind? Who better calculated to stem the torrent of prejudice that was likely to arise from an attempt to dispossess so many settlers, of what, by possession and lapse of time they considered their proper freehold? These were the weighty considerations which induced a selection of this gentleman; who with professional skill and learning, united as much of firmness and intrepidity as ever was possessed by mortal man. Such was the man in right of whose widow and minor children the defendants in this case, under the peculiar circumstances attending it, felt it their duty to set up the discount before noticed.
      It is worthy of remark that the plaintiff does not deny the applicability of the doctrine of implied contracts to this case, with the declaration that the fee charged was too great. The only objection which he advances is, that the presumption of law in his favor, of payment having been made, had been disregarded by the jury. Now the law does presume, in various instances, for the purpose of promoting the great ends of justice and right, as in the application of the principle of the law against himself, as regards an implied undertaking on his part; but when it is made to apply to the question of payment, the deduction as drawn by the plaintiff, is not legally correct.
      In the first place it is not true, in point of fact, that the services had been all rendered before the date of the note. Years of diligence were to be devoted to these cases before they could be placed in a proper train for trial. Prudence and caution were to be observed at every step and stage of the proceeding. And this continued to be the case long after the note was given; payment therefore could not be presumed. Besides payment, if made, is capable of being proved, and the law imposes the burthen of this proof upon the person on whom the obligation to pay rests.
      In the instance before us, we find that the deceased was actually engaged in making preparations, nay, devoting the last moments of his existence in the service of his client; dying, I may say, for him, that his suit might live. Under such circumstances, would not any liberal and generous mind have felt indignant at the idea of $800 being recovered by the plaintiff out of the little pittance left by the deceased, not equal to the support and maintenance of those whom he held most dear; without the plaintiff having, at the same time, furnished to the jury, who were called upon to allow his demand the most satisfactory evidence, that the important services rendered by the deceased had been amply and honorably remunerated? No such evidence was offered, and the jury were too just to presume that compensation had been rendered.
      These observations apply with equal force to the second ground taken in the brief; that the services were not worth the amount allowed by the jury.
      They certainly were better judges of this fact than the plaintiff; and when it is remembered that juries are apt to scan, with a cautious eye, the exhibition of a demand, such as was presented to their view by the defendants in this case, the prompt manner of finding their verdict to the full amount of the limited discount which had been filed, not only does the highest credit to the jury who tried this case, but is demonstrative of their certain conviction, that the charge for service as rendered in, was altogether just and legal. I believe that had a larger sum been demanded, the jury would have felt themselves bound to have allowed more, in justice to the representatives of the deceased. The deficiency, however, can only be expected at the hands of another jury, or from a more correct view on the part of the plaintiff, of the obligation he was under to reward those services.
      On the third ground, of there being no evidence of a contract between the parties, I have already shown that the law itself implies a contract in a case like the one before us; and it is well for the representatives of the deceased that it does so.
      As to the fourth and last ground taken, that the services were rendered to Nicholson and Duncan, and not to the latter alone, and therefore could not be discounted against the plaintiff in his individual capacity, I have only to remark that this may have been the fact, and if it were so, there can be no doubt but that Mr. Nicholson, who has been bred a lawyer, and whose mind has been thereby liberalized, will know too well the obligation which he is under to withhold from the representatives of his deceased brother, the reward due to services rendered in his behalf. Mr. Nicholson, however, was not a party to the record. The plaintiff, Mr. Duncan, was the ostensible claimant in those cases, and the client of the deceased; and as such, was certainly a fit subject for the discount filed to operate upon alone.
      The prominent facts then which arrest the attention in this case, and point with force to the conclusion which ought to be drawn from them, are, the great value of the property in contest; to which may be added, the doubtful nature of the right to be tried. The legal discernment and skill required in the arrangement and management of causes, involving principles complicated in their nature, and difficult of solution, the awakened anxiety of the client, embarking in such a contest, these considerations attached on the side of the employer. On the part of the attorney, the flattering and (from universal practice,) I will add just expectation, that an ample remuneration would await his professional exertions, the laudable anxiety not to disappoint the fond hopes and high expectations entertained by the client, public opinion, a self approving consciousness of merit, these with ten thousand other honorable incentives, which present themselves to liberal and correct minds, and which lead to infinite labor and exertion on the part of the counsel retained, certainly entitle him to a reward, which ordinary causes do not call for or allow. Cases of the description of the one now before us, may be said therefore to form an exception to a general rule; and in all such there can be no question but a jury, where compensation is withheld, is the proper tribunal to ascertain and fix the allowance, which reason and justice demands.
      On this occasion I think they have acted correctly in finding the verdict which is here complained of; and therefore that the motion for a new trial should not prevail.
      Justices COLCOCK, JOHNSON and NOTT, concurred.
      Mr. Justice RICHARDSON, dissented.
      JETER, for the motion.
      SIMKINS and McDUFFIE, contra.
 

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