This suit was brought for a year’s rent of premises owned by the plaintiff.
The declaration contained two counts. The first count alleged that the defendant occupied, possessed and enjoyed the said premises, and promised to pay the said rent.
The second count that he, the defendant, promised to pay to the plaintiff for the premises, as much as the premises were worth, for the use and occupation and possession of said premises; and that he, the defendant, has not paid any part of the rent dae.
The plea of the defendant was non-assumpsit.
*162Issue was joined, and the jury brought in a verdict for the-plaintiff for $92.12.
The defendant, by his attorney, moved for a new trial:
Because the action was brought for the use and occupation of a tenement, and the only proof offered was that the defendant agreed to rent the same and pay the said rent for another person, and not for his own use, and that he never ■ did occupy the same himself.
The defendant, through his attorney, objected to the admissibility of said evidence in this action, but the court overruled the objection, and instructed the jury if they believe the evidence the plaintiff was entitled to recover.
Motion for new trial overruled and judgment entered on the verdict.