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.