
    James Rankin, executor, plaintiff in error, vs. William Dawson, et al., defendants in error.
    When a motion was made to set-off losses against a judgment based on affidavit, which does not state the judgment was founded on a debt, contract or cause of action made or implied before the first of June, 1865, and upon demurrer thereto the Court sustained the demurrer and dismissed the motion :
    
      Held, That the judgment of the Court below was not error, under the law and facts of the case.
    Relief Act, 1870. Set-off. Before Judge Harrell. Muscogee Superior Court. May, 1871.
    William Dawson, on the 3d of December, 1869, obtained a judgment against James Rankin, executor of William Rankin et al. Fi. fa. issued, there was a levy, claim, etc. This levy was dismissed in May, 1870. On the 9th of November, 1870, Dawson made affidavit as to the payment of taxes, as is required by the Relief Act of 13th of October, 1870, with a view to proceed on the fi. fa. Rankin then made affidavit that he, as the executor of William Rankin, lost one hundred and fifty-five slaves, worth $75,000 00, and one hundred and seventy shares of Columbus bank stock, worth $25,000 00, and mules and cotton worth $10,-000 00, by or in consequence of the late war against the United States by the people of this and other States, and “ he desires to set-off said losses against the judgment in said case, and have them entered as a credit on the same; such credit or set-off was not allowed on the original trial, and said judgment has not been reduced under the Relief Act of 1868.” This affidavit was demurred to as insufficient in law to stop said fi. fa. The demurrer was sustained and that is assigned as error.
    Peabody & Brannon; Smith & Alexander, for plaintiff in error.
    Act of 13th October, 1870. Set-off against judgment: 40 Georgia Reports, 68, 495, 501. The cause should have gone to the jury: 38 Georgia Reports, 373; 39th, 327; 40th, 495; Nichols vs. Hovenor, last term. Equitable set-off: 38 Georgia Reports, 381; 39th, 528, 668. The Relief not unconstitutional: 2 Peter’s U. S. R., 407; 39 Georgia Reports, 581.
    R. J. Moses; Wm. Dougherty, for defendants.
   Lochrane, Chief Justice.

By the facts disclosed in this record, the affidavit made under the Relief Act of 1870 was insufficient, as it failed to state that the judgment against which the set-off and losses were moved was founded on a debt or contract made or implied before the first of June, 1865. This was the essential part of the oath, and the Act only applied to that class of contracts. And we therefore affirm the judgment of the Court below sustaining the demurrer filed and dismissing the motion.

Judgment affirmed.  