Brazee, J.
The only cause assigned for error herein is, that the court below erred in sustaining the demurrer to the third plea of defendant.
The declaration is in assumpsit upon a due bill given by the defendant to the plaintiff. The plea sets up a trespass and tortious seizure of the appellaat’s personal property by appellee after the due bill was given, for the purpose of enforcing payment thereof.
The plea offers to set off and recoup the damages resulting from the tort, without alleging any promise of appellee to pay the damages. The case, therefore, presents the question whether a defendant may set off or recoup the damages occasioned by the tortious act of á plaintiff in violation of the defendant’s rights in an action of assumpsit. We are of opinion that such defense cannot be legally interposed in assumpsit. The demurrer to the defendant’s third plea was properly sustained, and the judgment is therefore
Affirmed.