
    Harris et al., commissioners, v. Garner, sheriff.
    No. 4689.
    July 18, 1925.
    Mandamus. Before Judge Russell. Gwinnett superior court. December 15, 1924.
    
      John I. Kelley, for plaintiffs in error. O. A. Nix, contra.
   Hill, J.

1. The sheriff brought a petition for mandamus against the board of commissioners of roads and revenues of Gwinnett County, to compel them to approve his accounts which he alleged to be correct, and to issue an order on the county treasury for payment of the same. By their answer the board made an issue as to the correctness of his accounts, and also by way of set-off declared upon certain items of indebtedness of the sheriff to the county. After hearing the ease the court granted a mandamus absolute, and disallowed the county’s counter-claim. Under the evidence submitted to the court for consideration this was error. If the officer seeking the mandamus was indebted to the county the amount claimed by the board, the sheriff was not entitled to an order for any amount. The evidence was conflicting; and that being true, it should not have been disposed of by a ruling of the judge, but by a jury upon issues properly submitted.

2. It was not error for the judge to disallow the county’s claim against the officer seeking the mandamus, for damages arising from closing a road, or for damages resulting from reducing the value of automobiles from their illegal use; as the board could not, in the absence of allegations and proof of the insolvency of the officer, set off a tort against a claim based upon an account.

Judgment reversed.

All the Justices eoneu/r.  