
    Green vs. Combs.
    Damages arising from a tort cannot be pleaded as a set-off to a suit on a contract.
    May 11, 1888.
    Torts. Contracts. Set-off. Before Judge Eain. Catoosa superior court. August term, 1887.
    "W. W. Combs sued Wallace Green in a justice’s court on two notes, one given for a store account and one for a cow. On the trial, there was conflicting evidence as to the amount of the payments which had been made on the notes. The main defence relied on arose as follows : The note given for the cow was accompanied by a mortgage on her, by the maker to the payee ; this mortgage had been foreclosed, the mortgaged property sold, bought by one Whitsett and purchased from him by Combs.
    Defendant pleaded as a set-off'the value of the cow, at $20.00, and insisted that the foreclosure and sale were illegal, and that he should be allowed to set off the value of the cow; but the evidence offered by him as to her value was ruled out. The affidavit for foreclosure, alleged to be defective, was as follows :
    “ Georgia, Catoosa county. — Personally appeared before the undersigned, an acting justice of the peace in and for the said county, W. W. Combs, wbo on oath says that Wallace Green is indebted to Mm on the annexed mortgage the sum of eleven dollars and thirty cents, including interest to date, which amounts are due.
    W. W. Combs.
    “ Sworn to and subscribed before me this August 13th, 1886.
    B. B. Tkuimeít, J. P.”
    The jury found for plaintiff". Defendant carried the case by certiorari to the superior court, alleging error in ruling out the testimony as to the value of the cow and error in the verdict because “ a failure of consideration resulted from the taking of the cow from possession of the plaintiff" by defendant in an illegal manner.” His certiorari was overruled and a new trial refused, and he excepted.
    J. H. Anderson, by R. J. McCamy, for plaintiff" in error.
    "W. H. Payne, contra.
    
   Simmons, Justice.

Combs sued Creen on a promissory note. Creen filed a plea of set-off", in which he attempted to set up damages arising ex delicto, as a set-off" against the note. The magistrate ruled out the evidence offered to sustain this plea. Creen brought the case to the superior court by certiorari, and the judgment of the magistrate was sustained by the superior court; to which judgment Creen filed this bill of exceptions.

There was no error by the court below in dismissing this certiorari. Damages arising from a tort cannot be pleaded as a set-off to a suit on a contract. Code, §8261. Smith, Son & Bro. vs. Printup Bros. & Co., 59 Ga. 610.

Judgment affirmed.  