¶1delivered the opinion of the Court.
¶2In an action before a justice of the peace, there being no written pleadings or complaint, the nature of the action is such as the evidence makes it.
¶3Appellant introduced evidence suitable to a case of trespass de bonis, or an action of trover. Appellee set off a claim arising from a contract.
¶4Appellant was asking for a money judgment only, not for a return of any property.
¶5Sec. 49 of Chap. 79 of the Statute, Justices and Constables, is as follows:
“ In all suits which shall be commenced before a justice of the peace, each party shall bring forward all his demands against the other existing at the time of the commencement of the suit, which are of such a nature as to be consolidated, and which do not exceed $200 when consolidated into one action or defense; and on refusing or neglecting to do so, shall forever be debarred from suing therefor.”
¶6The Supreme Court, in Bush v. Kindred, 20 Ill. 93, held that a claim for unliquidated damages could not be set off against a claim based upon a contract totally disconnected with the subject-matter of such damages.
¶7To the same effect is the ruling in Hartshorn v. Kinsman, 16 Ill. App. 555; see also Pearsons v. Bunker, 30 Ill. App. 524.
¶8The damages for which this suit was brought did not arise from the contract under which appellee claimed a set off; that is, the damages did not naturally or proximately arise out of or follow such contract.
¶9Appellant could not, by calling his action assumpsit, make it so; his claim being one for which an action of assumpsit would not lie. Had appellee sold the goods he wrongfully had, and received payment therefor, appellant might, waiving the tort, have sued in assumpsit; as it was, appellant’s evidence showed that his cause of action was either trespass de bonis or trover.
¶10The set off offered by appellee was improperly allowed.
¶11The judgment of the Circuit Court is reversed and the cause remanded.