
    Mashburn v. Inman.
    December 21, 1895.
    Complaint on notes. Before Judge Yan Epps. City court of Atlanta. July term, 1895.
    Suit was brought upon a number of promissory notes. Defendant pleaded,- in substance, that the notes were given for the purchase price of a house and lot, a part of which he had paid; but that the consideration of those still unpaid had failed, for that the plaintiff, who owned property adjoining, had created and maintained thereon a nuisance dangerous to health, greatly damaging defendant and almost destroying the value of the house and lot he purchased, said nuisance consisting of a wall, etc., with no provision for keeping out the rain-water which accumulated in great quantities, whereby the same, together with sewer-gas, settled upon the premises in great quantities, rendering defendant’s premises uninhabitable, etc. The plea was stricken on demurrer, and a verdict directed for the amount of the notes, as well as for ten per cent, attorney’s fees for which the notes stipulated. Exceptions were taken to the striking of the plea, and to the allowance of fees; it being contended that the striking of the plea was not such a failure to sustain the same as would allow fees to be recovered.
   Lumpkin, J.

1. This case falls within tlie general rule that to an action sounding in contract, the defendant cannot plead as a set-off a claim arising ew delicto.

2. The question as to attorney’s fees is controlled hy the decision of this court in Butler v. Mutual &c. Company, 94 Ga. 563.

Judgment affirmed.

Arnold & Arnold, for plaintiff in error.

Brandon & Arkwright, contra.  