The canse was tried before a justice, upon the issues made, whether the plaintiff' was entitled to the sum claimed, as compensation for the labor of his son; whether the agreement was that the son should labor for defendant for one year; and whether defendant had sustained any damage by reason of the failure of the son to work for the whole time agreed. These issues seem to have been fairly made, and on the trial, the judgment of the justice was for the plaintiff".

When the cause came into the district court, not only did the court permit the plaintiff to make a new issue, by putting in an additional replication to defendant’s answer, but allowed him to file a demurrer to so much of the answer as averred that the contract between the parties was, that the plaintiff’s son was to work for one year, and sustained the demurrer to the same, striking out all that portion of the answer. By this means, the defendant was deprived of his right to show that he had sustained any damage, by reason of the failure of the plaintiff to perform his part of the agreement; which damage he had the right to set-off against the plaintiff’s claim for compensation for the labor of his son for the five and a half months.

It is not necessary for us, at this time, to consider whether there was error in the permission given by the court to the plaintiff to file a replication in the district court, changing the issue upon which the cause was tried before the justice. The more material matter to be considered, is the ruling of the court in suffering the demurrer to be filed in the district court, and in sustaining the demurrer, whereby the issue joined by the replication and rejoinder, were entirely superseded, and no issue left for trial, but the simple question *328whether the plaintiff was entitled to the amount claimed for the labor of his son, for five and a half months.

“We think this course of proceeding calculated to prejudice the rights of the defendant. It deprived him of his undoubted privilege, of showing that the contract having been for the labor of the plaintiff’s son for a year, and he having failed to labor for that length of time, the defendant had suffered damage by reason of such failure, which he was entitled to set-off against the plaintiff’s claim for the services of his son, for the length of time that he did labor for defendant. Eor the error in sustaining the demurrer to the defendant’s answer, the judgment of the district court will be reversed.

Judgment reversed.

dissenting. — I dissent in this case, for the reason that it is reversed upon a point not made, nor referred to by counsel for either party. The ground of objection, made by the demurrer to the answer, was that though the son of the plaintiff was hiied to the defendant, to work for a year, and left without cause, before the expiration of the time fixed, the plaintiff might nevertheless recover, relying upon the doctrine of Britton v. Turner, 6 N. H., 181, and followed by this court in Pixler v. Nichols, ante 106. This is the ground upon which it wTas sustained, as I gather from the entire record — a conclusion fully and entirely warranted, from the fact that this is the question, and the sole question, made by counsel, on this part of the case, in their arguments. The thought that by sustaining the demurrer, defendant was deprived, on the trial, of his right to set-off his damages, by reason of the failure of the plainiff to fulfill his contract, is not intimated in the argument, and is first suggested in the opinion.' If it appeared that this was denied him, or if the point had- been made that the answer was good for the purpose of letting in proof of such failure, I should, perhaps, not differ from the conclusion arrived at by the majority of the court. In the absence of *329anything of this kind, however, I think it best to confine our examination to the points made, and not to reverse a cause and send it back, for an error that couusel, by their silence, treat as practically and actually unimportant.

There is a wide difference between affirming and reversing a case, upon a point not made by counsel. It is frequently the case, and in most instances the duty, of the appellate court to sustain the action of the court below, if from an examination of the entire record, a point can be found to justify it, though such point may not be made by counsel. And this, upon the well known and statutory rule, that we will always presume, in favor of, and never against, the correctness of the proceedings in the inferior tribunal. It is very different, however, when a cause is to be reversed. "We are justified in hunting, (that word expresses my meaning), for reasons to sustain, but not to reverse, a case. If counsel insist that a case ought to be reversed on one ground, I certainly will not overrule him upon that, and send it back upon some other; such a practice is, in effect, giving a party a new trial, upon a ground that he does not urge; and decides questions to which the attention of neither party has been directed.