1. In a suit upon a promissory note, which is an action ex contractu, the defendant cannot in an action at law in a city court recover by way of set-off against the plaintiff, upon the ground that the plaintiff is insolvent or a nonresident, damages sustained by the defendant by reason of an alleged tortious act of the plaintiff in having maliciously instituted proceedings in bankruptcy against him. Hecht v. Snook &c. Co., 114 Ga. 921 (41 S. E. 74).
2. The amendment to the defendant’s plea, setting up such defense, was properly stricken.
Judgment ajfi/rmed.
Jenkins, P. J., and Bell, J., concur. 8. Eolderness, Boylcin & Boylcin, for plaintiffs in error. Edil & Jones, Smith & Millican, contra.