
    
      Patrick O’Connor vs. William Tynes.
    
    Action for use and occupation. The proof was, that defendant acknowledged the lease, and that he had occupied the premises for the time mentioned in the declaration, and offered, if plaintiff would allow a discount which he set up, to pay or confess a judgment for the balance. Held that this was sufficient evidence to entitle the plaintiff to recover.
    
      Before Gantt, J. at Charleston, Spring Term,, 1831.
    The report of His Honor, the Presiding Judge, is as follows :
    t£ This was an action to recover for the use and occupation of two lots, for which the defendant held a parol lease from the plaintiff. There was not a particle of proof that the defendant ever had possession of the lots. On the contrary, it appeared by the testimony of Doctor James Perseli, that O’Connor put Tynes on a third lot, which did not belong to him, but to the witness, and he forbid Tynes from paying anything to O’Connor for the occupation of the lot. Mr. Deliesseline proved, on the part of the plain-tiif, that Tynes acknowledged the lease to him, and that, if he would admit the discount, he would pay the balance.'— Mr. Deliesseline stated further, that Tynes said he had occupied the premises for the time mentioned in the declaration. The premises occupied was the third lot above mentioned.
    
      “ The Court of Appeals will, very probably, send this case back, on the ground that it should have been left to the jury on the testimony of Tynes’ ambiguous acknowl-edgement. “ That he had occupied the premises ” is altogether equivocal, however. The premises he did occupy was the third lot, not leased, which O’Connor had trespassed upon by putting Tynes on it. I considered the case, therefore, unsupported by any evidence whatever, of use and occupation of the premises stated in the declaration, and therefore ordered a nonsuit.”
    The plaintiff appealed, and moved to set aside the non-suit, and for a new trial, on the ground that there was sufficient evidence for the jury to act upon — the qualified promise to confess a judgment being a sufficient acknowl-edgement of the use and occupation, and of the rent in ar-rear, as set forth in the declaration, which was shewn to defendant, and which was the subject of conversation between witness and defendant.
    
      Deliesseline, for the motion.
   Curia, per

O’Neall, J.

The proof on the part of the plaintiff, that the defendant acknowledged the lease, and his occupation of the premises demised for the time mentioned in the declaration, and his offer to pay or confess a judgment for the balance, if his discount was allowed, was sufficient to entitle the plaintiff to recover at least the balance which might be left after deducting the defendant’s discount. It is true that these admissions may have been made under a mistaken idea of his liability to the plaintiff, and that his defence may shew that he ought not to be bound by them. Whether it ought to have that effect was a question of fact for the jury.

The motion to set aside the nonsuit is granted.

Johnson, J. concurred.  