#### V. C. BARRINGER, Guardian, &c., v. W. J. HOLBROOK.

Where an appeal from a magistrate is regular in form, and the Court discovers no error in the proceedings, — the judgment should be one affirming that given below, and not, dismissing the appeal.

(Case where a note was allowed as a set off because of theTexpress agreement of the parties.)

Civil action, tried, upon appeal from a Justice of the Peace, by Logcm, J., at Spring Term 1870 of Cabarrus Court.

The cause of action was a note given by the defendant to the plaintiff, for the hire of a slave for 1860. The slave belonged to one J. E. Eussell, a ward of - the plaintiff, and at the hiring, it was bid off by one E. E. Eussell, another ward of the plaintiff. The plaintiff declined to take a bond for the price from the hirer, because of the relation between them, but told the defendant to give his bond therefor, and then to take a bond for the same amount from the hirer, payable to himself; and that upon a settlement he (plaintiff) *541would, allow the latter bond as a set off to the one given to him. These bonds were accordingly executed.

Upon the trial before the magistrate the set off was allowed, and the plaintiff appealed.

When the case was tried by his Honor, he ordered the appeal to be dismissed.

The plaintiff appealed again.

Boyden & Bailey, and Wilson, for the appellant.

No counsel contra.

Bodman, J.

The set off alleged as a defence was made -so by the express agreement of the plaintiff. The Judge below should have affirmed the judgment of the justice, instead of dismissing the plaintiff’s appeal. The latter course would have been proper, if there had been any irregularity in the appeal itself, but that was not alleged.

Judgment of his Honor reversed, and judgment for the •defendant.

Per Curiam. Judgment accordingly.