This is a suit commenced before a justice of the peace, in which Thachrah, the plaintiff' below, recovered a judgment against the appellant on an account for lumber. Bevans appealed to the Circuit'Court, where judgment was again rendered against him.

One of the defenses filed by Bevans before the justice was a set-off', of a note executed by TKackrah and one Boyer to George W. Bennett, and assigned by the latter to Bevans.

The only question presented by the appellant is based on an alleged error of the Circuit Court in a conclusion of law, *128upon a special finding of the facts in reference to the set-off.

But the record shows that before going into the trial of the cause in the Circuit Court, Bevans withdrew his set-off. The question presented, therefore, is wholly immaterial, and need not be considered or passed upon.

The. judgment is affirmed, with five per cent, damages and costs.