house which she had taken for her residence. She had a right to retain the key till the 6th of April. The landlord was aware that the tenant held the key, and had on two occasions sent for it in order to show persons over the house. The fact, therefore, was clear, that the tenant *intended to quit at the expiration of the current year, and [*525 that the landlord intended that she should then cease to be his tenant. The notice to quit expiring on the 6th of April, which was Saturday, the tenant did not send the landlord the key on that day, which would have been a wise precaution to have adopted. She, however, sent it on the following Monday, when the landlord refused to receive it, on the ground that it ought to have been sent on the Saturday. The contention on the part of the landlord in the County Court was, that the detention of the key was a waiver of the notice to quit, and necessarily continued the tenancy, and rendered the defendant liable as tenant for the quarter's rent, or for use and occupation for that time. That contention the judgment of the County Court sustains, on the ground, of course, that there was a contract for an occupation for a quarter of a year at the rent of 261. 5s. Now, what evidence is there of any such contract? None whatever, except the accidental detention of the key for two days. It is hardly necessary to say more than that there is no evidence of an intention by keeping the key to continue the tenancy. Mr. Prentice contends that there was proof of an occupation of the premises by the defendant from the Saturday to the Monday; and that, if the County Court erred in assessing the value of that occupation at 267. 5s., it was a mere mistake of fact, with which we ought not to interfere. That contention, however, is not well founded, because the mere fact of not returning the key on the 6th of April did not constitute an occupation or evidence of an occupation either on a quantum meruit or under a contract for payment of a full quarter. The result is, that the judgment of the County Court must be reversed, and the judgment entered in favour of the appellant. The only remaining question is as to the costs. It has been held in this Court that justice cannot be done in [*526 appeals from County Courts, unless we adopt the course laid down in appeals to the Privy Council, viz. to award costs to the successful party in all cases. There certainly is no ground for adopting a different course in this case.

*

KEATING, J.-For the reasons given by my Brother Willes, I agree with him in thinking that there was no evidence of an occupation by the defendant to render her liable to the extent of a quarter's rent or to any extent at all. I also agree with him that the judgment must be reversed with costs. Judgment reversed, with costs.

ELKIN and Another v. BAKER. Jan. 20.

A. and B., merchants in Australia, mutually agreed that each should buy gold dust, each to have half the profit or to bear half the loss on the resale of the gold dust to be bought by the other. In pursuance of this agreement, A. bought 365 oz. and B. 728 oz. It was then agreed that each of them should consign his parcel to C. in London, for sale on the joint account, with instructions to C. to give A. and B. each credit of account for a moiety of the proceeds of each consignment. In pursuance of this last-mentioned agreement, the gold dust so bought was

consigned to C., B.'s 728 oz. being invoiced as consigned on the "joint account," and accompanied by a letter from B. (dated Feb. 2, 1852), instructing C. to place the net proceeds to the respective accounts of A. and B. in equal moieties. A. likewise consigned his 365 oz. to C., but omitted to send C. instructions to place a moiety of the net proceeds to the account of B. On the 15th of June, 1852, C. sent a letter to A. informing him that he would pass to his credit half the proceeds of the said gold dust, and thereby assented to obey the instructions be had received from B. On the 4th of February, 1852, B. wrote to C. as follows,-"I have no doubt A. has written that half the profits [net proceeds] of the 365 oz. of gold dust shipped to you is to go the credit of B., in the same way as half the profit of the 728 oz. is to go to his credit. If, however, he should not have done so, you will not pass the half profit of the 728 oz. to his credit." This letter of course was not received by C. at the time he wrote his letter of the 15th of June. B. became bankrupt, and C., having sold both parcels of the gold dust, gave B. credit for the whole of the proceeds of the 728 oz. and for a moiety of the proceeds of the 365 oz. :— Held, that a plea setting out these facts was a good plea of equitable set-off in an action for money lent, brought by C. against A.

THIS was an action for money lent, money paid, money aue upon accounts stated, and interest.

The defendant pleaded,-fourthly, by way of equitable defence, as to 3227. 15s. 7d. parcel of the money *claimed in the declara*527] tion, that, before this suit, the defendant then being a merchant carrying on business in Australia, in parts beyond the seas, and Messrs. Montefiore & Co. then also being merchants carrying on business in Australia aforesaid, it was agreed between them that each of them should buy gold dust as a joint speculation, and should divide the profit and loss that might arise from a resale of the said gold. dust, in manner following, that is to say, that Messrs. Montefiore & Co. should receive for their own use half the profit or bear half the loss, as the case might be, that might arise on the resale of the gold dust to be bought by the defendant, and that the defendant should receive for his own use half the profit or bear half the loss, as the case might be, that might arise on the resale of the gold dust to be bought by the said Messrs. Montefiore & Co.: That, in pursuance of and according to the said agreement, the defendant bought 365 ounces of gold dust subject to and for the purposes of the said agreement, and Messrs. Montefiore & Co. also bought 728 ounces of gold dust subject to and for the purposes of the said agreement: That it was thereupon, and for the purposes of carrying out the first-mentioned agreement, agreed between the defendant and the said Messrs. Montefiore & Co., that each of them should consign to the plaintiffs for sale by the plaintiffs the gold dust so by them bought respectively, and should so consign the same as a consignment on the joint account of the defendant and the said Messrs. Montefiore & Co., and that the defendant should instruct the plaintiffs, that, after paying a certain bill out of the proceeds to be realized by the sale of the said 365 ounces of gold dust, the plaintiffs should divide the net proceeds to arise on the said sale of the same between the defendant and the said Messrs. Montefiore & Co., and should give credit for *one moiety thereof to the defend*528] ant, and for the other moiety thereof to the said Messrs. Montefiore & Co., in their respective accounts with the plaintiffs; and that the said Messrs. Montefiore & Co. should instruct the plaintiffs, that, after paying a certain bill out of the proceeds to be realized by the sale of the said 728 ounces of gold dust, the plaintiffs should divide the net proceeds to arise on the sale of the same between the said Messrs. Montefiore & Co. and the defendant, and should give credit

for one moiety thereof to the said Messrs. Montefiore & Co., and for the other moiety thereof to the defendant, in their respective accounts with the plaintiffs and the defendant: That, in pursuance of the said agreements, the defendant and the said Messrs. Montefiore & Co. respectively consigned the gold dust so by them bought respectively. as aforesaid to the plaintiffs for sale, and that the said Messrs. Montefiore & Co. so consigned the said 728 ounces of gold dust as a consignment on the joint account of themselves, the said Messrs. Montefiore & Co., and of the defendant, and notified the same to the plaintiffs by sending to the plaintiffs an invoice of the said gold dust headed as follows,-"Invoice of one box of gold dust shipped on board the Benjamin Elkin, Overbury, commander, for London, consigned to Messrs. B. Elkin & Sons on joint account of John Baker and selves, marked and numbered as per margin:" That the said Messrs. Montefiore & Co. also, according to the said agreement, instructed the plaintiffs, by a letter dated the 2d of February, 1852, which accompanied the said invoice, that the said gold dust was consigned on such joint account as aforesaid, and that, after paying out of the proceeds to arise from a sale of the said gold dust the said bill so to be paid thereout as aforesaid, they the plaintiffs should divide the net proceeds to arise on the said sale of the same equally *between them the said Messrs. Montefiore & Co. and the de[*529 fendant, meaning, and being by the plaintiffs understood to mean, that the plaintiffs should give credit for one moiety thereof to the defendant and for the other moiety thereof to the said Messrs. Montefiore & Co.: That he, the defendant, in pursuance of the said agreement, consigned the said 365 ounces of gold dust to the plaintiff's for sale, and intended in so doing to consign the same as such consignment on joint account as aforesaid, and to have the net proceeds after the said bill so to be paid thereout as aforesaid divided as aforesaid, and, by letter dated the 4th of February, 1852, instructed the plaintiffs to pay the said bill so to be paid thereout as aforesaid out of the proceeds to arise from the sale of the said gold dust, but, through inadvertence, in the hurry of business, omitted to give the plaintiffs notice that it was consigned on such joint account as aforesaid, or to instruct the plaintiffs as to the division of the net proceeds as agreed; but did by the said letter of the 4th of February, 1852, inform the plaintiffs that he the defendant was to have one moiety of the said net proceeds to arise on the sale of the gold dust so consigned by the said Messrs. Montefiore & Co. to the plaintiffs: That, before and at the time of the making of the said consignment, and at all times afterwards, the plaintiffs and defendant had accounts between one another, that is to say, accounts as concerned the trade of merchandise as between merchant and merchant: That the plaintiffs received both the said consignments, and the said letter of the 2d of February and invoice from the said Messrs. Montefiore & Co., and the said letter of the 4th of February from the defendant, and thereupon wrote and sent to the defendant a letter, dated the 15th of June, 1852, informing the defendant that they the plaintiffs would pass to the defendant's credit half the *proceeds of the said gold dust after paying the said bills, and thereby assented to obey the said instructions which [*530 they had received from Messrs. Montefiore & Co.: That, after the said

Messrs. Montefiore & Co. had made their said consignment and sent their said letter and invoice, and before the plaintiffs had received the same, or had written their said letter of the 15th of June, J. B. Montefiore, one of the said firm of Messrs. Montefiore & Co., wrote and sent to the plaintiffs, and the plaintiffs received from him, another letter to the plaintiffs, dated the 4th of February, 1852, in which, referring to the defendant and the defendant's said consignment of the said 365 ounces, and the said consignment by the said Messrs. Montefiore & Co. of the said 728 ounces, the said J. B. Montefiore wrote to the plaintiff's as follows, that is to say,-"I have no doubt Mr. Baker has written that half the profits of the 365 oz. of gold dust shipped to you is to go to the credit of Montefiore & Co. in the same way as half the profit of the 728 oz. is to go to his credit. If, however, he should not (in his haste going away to Melbourne) have done so, you will not pass the half profit of the 728 ounces to his credit:" That the said word profits in the said letter so used as aforesaid meant the said net proceeds, inasmuch as the said net proceeds herein mentioned were profits: That the said J. B. Montefiore wrote the last-mentioned letter, and so as aforesaid countermanded the authority to give the defendant credit for one moiety of the net proceeds of the said 728 ounces of gold dust, without the knowledge, consent, or authority of the defendant: That, before and at the time of sending the last-mentioned letter to the plaintiffs, the said Messrs. Montefiore & Co. had become and were insolvent, and had stopped payment as merchants, and were unable to meet their pecuniary engagements, whereof the plaintiffs, at the time when they received the said letter, and at the time *531] when they gave credit to Messrs. Montefiore & Co. as hereinafter mentioned, had notice and knowledge: That, after the receipt by the plaintiffs of the last-mentioned letter, they received the proceeds arising from the sale by them of the said gold dust; and that the net proceeds arising from the said sale of the said 728 ounces, after paying the said bill so thereout to be paid as aforesaid, were 6457. 11s. 3d., and the net proceeds arising from the said sale of the 365 ounces, after paying the bill so to be paid thereout as aforesaid, were 3307. 11s. 8d.: That thereupon the plaintiffs gave credit to the said Messrs. Montefiore & Co. for one moiety of the said sum of 3301. 11s. 8d., and forthwith gave notice thereof to the defendant and the said Messrs. Montefiore & Co., to which credit the defendant never objected, but always assented; and thereupon the plaintiffs gave credit to the said Messrs. Montefiore & Co. for the whole of the said sum of 645l. 11s. 3d., and gave notice thereof to the defendant, to which credit, so far as it relates to a moiety thereof, the defendant never objected, but always assented; and the plaintiffs would not, though often requested by the defendant so to do, give the defendant credit for one half thereof, or for any part thereof: That the plaintiff's never were in any way authorized to give credit to Messrs. Montefiore & Co. alone for the whole of the said sum of 6457. 11s. 3d., or for any portion of that moiety for which, according to the said letter of Messrs. Montefiore & Co. of the 2d of February, 1852, they were to give credit to the defendant: That, from the time when the said Messrs. Montefiore & Co. became to the time when they were made bankrupts, they continued to be insolvent and unable to meet their pecuniary

engagements, and, by reason thereof, became and were made bankrupts in and according to the laws of Australia aforesaid: [*532 That, on taking the account of the said partnership transactions between the said Messrs. Montefiore & Co. and the defendant, the defendant was and is, and always has been, entitled to receive the whole of the said moiety of the said 6427. 11s. 3d.; and that the payment of that sum to the defendant will finally close the said partnership transaction: That the plaintiffs had knowledge and notice, that, as between the defendant and the said Montefiore & Co., the defendant was, as in fact he always was, entitled to the said moiety of the said 645. 11s. 3d.: That, if the defendant does not receive credit in his said accounts with the plaintiffs, or payment from the plaintiffs, of the said moiety, the same will, by reason of the insolvency and bankruptcy of the said Messrs. Montefiore & Co., be wholly lost to the defendant: That, after the plaintiff had so as aforesaid given credit to the said Messrs. Montefiore & Co. for the said sum of 6457. 11s. 3d., the said J. B. Montefiore, by letter dated the 9th of November, 1852, and received by the plaintiffs in the year 1853, gave notice to the plaintiffs that the defendant was entitled to a moiety thereof, and that the plaintiffs ought to give the defendant credit for that moiety: That the plaintiffs have never paid the said moiety, or any part thereof, to the said Messrs. Montefiore & Co., but have, without the consent of the defendant, and without any right so to do, set the same off against a debt due from the said Messrs. Montefiore & Co. to them the plaintiffs, and held and still hold the same, without any such right or authority as aforesaid, for and as a payment of the debt so due to the plaintiffs: That the plaintiffs were never authorized to apply the said moiety, or any part thereof, in payment of any debt due from the said Messrs. Montefiore & Co. to the plaintiffs, or even to their credit; but that, if the authority to place the same to the credit of the defendant was revoked, then the plaintiff's merely received and have [*533 always since held the same as the proceeds of the sale of gold dust consigned to them on the joint account of the defendant and the said Messrs. Montefiore & Co., and long before this suit had notice and knowledge of the right of the defendant to the same: That the same moiety is subject to the first-mentioned agreement between the defendant and the said Messrs. Montefiore & Co.; and that, according to that agreement, the defendant is entitled to the same; and that all things have happened and been done so to entitle him: That this action is brought for a balance claimed by the plaintiffs to be due to them on the said accounts between them and the defendant: And that all the matters and things aforesaid were done and happened before this suit to entitle the defendant, and that, at the time of the commencement of this suit, the defendant was and yet is entitled, in equity, to be paid by the plaintiffs, or to have credit in the said accounts given him by the plaintiffs for, the said moiety, which equals the plaintiffs' claim in respect of the matter herein pleaded to; and the defendant is willing to set the same off against the claim of the plaintiffs in respect of the matter herein pleaded to.

To this plea the plaintiffs demurred, the ground of demurrer stated in the margin being "that the plea discloses no ground for unconditional relief in equity, in the event of the plaintiffs obtaining judgment C. B. N. S., VOL. XI.—21