• To entitle the plaintiff to recover, he was bound to show a hiring of the premises or an actual occupancy. He gave evidence tending, as he claimed, to show both of these facts. The evidence of occupany is slight and inconclusive, tending quite as much to show an intended or expected, as an actual occupancy of the premises. And so of the hiring or renting of the premises. A certain sum was paid, intended as rent. But it is at least quite as probable that it was designed as a quarter’s rent upon the five years’ lease, expected to be executed, as that it was a quarter’s rent upon a year’s hiring of the premises. Conceding that the payment of a quarter’s rent would, unexplained, import an agreement to rent the premises for a year, such is not the necessary and inevitable, and, I think, not the reasonable inference, when we are informed by the evidence that the parties had been treating for a five years’ lease, at an annual rate payable quarterly, which would correspond with the sum paid. If intended to be applied upon the latter lease, no more became due, as the lease or contract was never completed. Taking, then, the view of the case most favorable to the plaintiff, it was equivocal whether the money was paid upon a year’s hiring or upon an anticipated five years’ lease. Both questions, the question of actual hiring and of actual occupancy, were questions of fact, upon which the judge or the jury, passing upon the same, might, without violence to the evidence, have come to a conclusion unfavorable to the • plaintiff. The plaintiff might, perhaps, have properly asked to have those questions submitted to a jury, but he did not, and it was not therefore error in the court to omit submitting them to the jury. (Bidwell agt. Lament, l7 How., 357.) The judge was necessarily, therefore, obliged to decide them himself; and he probably decided them adversely to the plaintiff. His decision on such question of fact _ has not been excepted to, nor sought to *425be reviewed. We have only his decision on the motion for a nonsuit, which, so far as the questions of law are concerned, is the application of the law to proved or ascertained facts. (See case, before cited.) If such facts were adverse to the plaintiff on the points above referred to, his decision on the question of law thence arising was unquestionably correct, and the exception therefore must fail.
The motion for a new trial on exceptions must be denied, and there must be judgment for the defendants.