delivered the opinion of the court:
This was an action commenced by Hester against Murphy, in the .justice’s court, founded upon a writing obligatory. Judgment was entered in favor of the plaintiff, from which Murphy appealed. On the trial de novo in the circuit court, Murphy pleaded payment, and the only evidence offered in support of his plea, was “that about the first of November or December, 1833, Hester borrowed of Murphy, a . wagon, worth about eighty dollars, which was to have been .returned . in four or five days, but witness did not know whether the wagon had ever been returned or not.” The counsel for Hester moved the court to exclude this testimony, upon the ground that it was inappropriate under the plea, because, if the wagon was not returned, Hester was responsible in cost, but not in contract; which motion was overruled by the court, and judgment rendered in favor of Murphy, for seventeen dollars, to reverse which, Hester now brings up the case by writ of error; the only question presented is, whether the evidence was proper. under the plea of payment. We have looked into the cases, and can find no authority founded upon either reason or justice, by which a party would be permitted' under this plea, to give in evidence a claim wholly uncertain and unliquidated; and although the common law rule has been somewhat changed by our statute, by permitting in some instances, counter demands to be off set under this plea, yet it is only where the plaintiffis indebted to the defendant by bond, bill, note, or book account, or other contract, McCampbell's Dig. p. 371; which evidently and clearly refers only to cases where there is an actual indebtedness arising ex contractu, not partaking of the character of torts. The judgment of the circuit court of Conway county must therefore be reversed, and this case remanded for further proceedings to be had therein, not inconsistent with this opinion.