dissenting.
This was an action brought by the plaintiff against the defendant on a rent contract, made on the 2d day of May, 1864, for the rent of a store and warehouse in the city of Atlanta, for the term of eight months. The defendant pleaded in his defence to the action, that he had been deprived of the possession of the premises, by reason of the occupation of Atlanta by the. Federal army, and the destruction of the property rented, by fire. On the trial of the case, the plaintiff demurred to that portion of the .defendant’s plea, and moved the Court to strike it out, which motion the Court overruled, and he allowed the defendant to prove the facts set forth in' that part of his plea. The plea and demurrer thereto, presented the naked question of law, whether the facts stated therein, constituted any legal defence to the plaintiff’s action. The 2267th section of the Code, declares that, “the destruction of *a tenement by fire, or the loss of possession by any casualty, not caused by the landlord, or from defect in his title, shall not abate the rent contracted to be paid.”
In my judgment, the defendant’s plea did not constitute any legal defence to the plaintiff’s action for rent, and the Court below erred in overruling the demurrer thereto,, and allowing the defendant, on the trial, to prove the facts alleged in said plea. The defendant was bound in law to pay the rent stipulated in his contract, without any abatement on account of the casualties set forth in his plea. If the contract was a Confederate contract, then the Ordinance of *1431865 applied to it, in the same manner as to other contracts, when payment was to be made in Confederate money; but the fact that the rent was to be paid -in Confederate currency, did not alter or change the law as to the abatement of the rent, for any of the casualties mentioned in the defendant’s plea, and the jury on the trial, ought not to have been allowed to take into consideration any of these casualties, in abatement of the rent contracted to be paid. The abatement of the rent agreed to be paid on account of the casualties specified in the plea, was one question: the scaling the amount of the rent note, payable in Confederate currency, under the Ordinance of 1865, was another and distinct question, and the error consists in this, that the Court below allowed that which was illegal to be mixed up with that which was legal, and to be submitted to the jury for their consideration.
In my opinion, the judgment of the Court below should be reversed, and anew trial should be granted.