Boston บ. Binney. 1824, before the commencement of the occupation for which this action was brought; and the defendant renounced and denied the plaintiffs' title during the whole time of the occupation now in controversy. The agreement and award extended only to August 1, 1824. The defendant was then to remove his buildings, and to pay $50 for the rent from the time of the delivery of the award and deed, until the 1st of August. It cannot be maintained, that the arbitrators intended that their award should extend or relate to rent after that day. In the first place, the parties had given them no authority to make it so extend; in the second, they explain their words "for the occupation of the premises until the buildings shall be removed," by referring "to the first day of August then next” as the time for which the defendant was to pay the $50. There never was any submission or agreement touching the occupation after that day, and that is the subject-matter of this action. Three days before it was commenced, the defendant formally, in writing, "renounced the plaintiffs' title, divested himself of the possession obtained under the plaintiffs, and commenced a fresh holding" under his own alleged better title. Balls v. Westwood, 2 Campb. 11. There was nothing in this conduct. which can warrant the inference of holding over at sufferance, even if there had been a prior holding as tenant for a certain time. Suppose that there had been a written lease by the plaintiffs to the defendant from May 21 to August 1, and just before its expiration the defendant, for good cause, or without any legal cause, had renounced that title, and given notice of his intent to commence upon another title after the lease should expire. Such renunciation would have rebutted any right of the plaintiffs to claim to hold the defendant accountable as a tenant at sufferance. It was not the mere naked, unexplained holding over of a tenant, of which we read in the books. I Roll. Abr. 659; Co. Lit. 57. All that the law requ res is, that, during the time when the tenant actually holds by the permission of his landlord, the landlord's title shall not be disputed. But when he ceases to hold in that relation, he may commence upon an adverse title, after the expiration of the lease. Now the inference to be derived from the agreement to become tenant from May to August, cannot be more unfavorable for the defendant's commencing upon another title after the 1st of August, than the lease for that time would be. It was said, however, that the plaintiffs were seised in virtue of the deed. That, however, would depend upon its having been delivered with the assent of the defendant, under all the circumstances of the case; and the decision of that question would open the whole ground of controversy. But suppose it were so, and that, upon a trial of the merits, the defendant would fail in the claim which he has set up, the result would be, not that he has been a tenant of the plaintiffs during the time he has occupied after August 1, 1824, but a disseisor of the plaintiffs. And an ample remedy is provided; he would be accountable in trespass for the mesne profits, after the plaintiffs should have proved their title in a writ of entry or other proper action. During all that time the defendant was in possession, claiming the fee, taking the rents as his own, and denying the title of the plaintiffs. If the city had conveyed by deed to a stranger, is it not clear, that, in consequence of that disseisin, nothing would have passed? "If, (says Lord Mansfield, in Fishar v. Prosser, Cowp. 218,) upon a demand made by the co-tenant of his moiety, the other denies to pay, and denies his title, saying he claims the whole, and will not pay, and continues in possession, such possession is adverse and is ouster enough." It is said that a party injured may waive the tort and maintain assumpsit. But the defendant has a right to say to the plaintiffs, "there has been no tort; you have nothing to waive; the land is mine, not yours." And whether it belongs to one or the other, we could not try in an action of assumpsit for use and occupation. So we said expressly in Codman v. Jenkins, 14 Mass. R. 96.* "Indebitatus assumpsit for rent * See also Bigelow v. Jones, 10 Pick. 161. [See Mayo v. Shattuck, 14 Pick. 525; Henwood v. Cheeseman, 3 Serg. & Rawle, 500; Anon. Woodf. on Landl. & Ten. 540; Alton v. Pickering, 9 N. Hampsh. R. 494; Lewis v Robinson, 10 Watts R. 338; Mather v. Trinity Church, 3 Serg. & R. 509; Baker v. Howall, 6 Serg. & R. 476; Brown v. Caldwell, 10 Serg. & R. 114; Irvaine v. Hanlin, 10 Serg. & R. 220, Snyder v. Vaux, 2 Rawle, 423; Powell v. Smith. Boston บ. Binney. Boston v. Binney. 10 will no lie in favor of a stranger, for the purpose of trying his title; or by one of two litigating parties claiming the land : this action not depending upon the validity of the plaintiff's title, but on a contract express or implied." There has been nothing but litigation between these parties, in one form or another, since the publication of the award. The very subject matter of this suit was litigated in the action of Binney v. Chapman, 5 Pick. 124, in which the defendants were supported and indemnified by the city in their unsuccessful defence. The land has been claimed by the city and claimed by Binney, from that time to the present. But the title is not to be tried in this action of assumpsit for use and occupation. It would be directly contrary to the established principle for the tenant to controvert the title of his landlord. The plaintiffs' ground is, that the defendant was their tenant, and holds over by their sufferance. If that were so, it would be clear that the defendant could not be permitted to deny the title. But the defendant's mouth is not to be shut, because he once was tenant, if he renounced before the commencement of the alleged time of holding over at sufferance. It has been contended for the plaintiffs, that they became seised in virtue of the deed which the defendant delivered to the arbitrators, and they to the plaintiffs, and that that should be held conclusive in this action, as the defendant has not shown any thing to defeat it. But if the defendant is to be treated as the plaintiffs' tenant, how can he be permitted to show any thing adverse to their apparent title? Suppose that a stranger had a better title than that which the defendant had when he gave the deed, and that after the expiration of the lease and before holding at sufferance, the defendant had acquired the better title by purchase or descent, shall he never have an opportunity to try it? Shall he be for ever precluded, because he once held as tenant, though he renounced that relation before the acquisition of the better title? If it be said that the defendant may show a better title in this action of assumpsit for rent, then what becomes of the rule that he cannot controvert the title? That rule is too firmly settled to be questioned or shaken. It comes, then, to this point, that where there is no contract, express or implied, no action for use and occupation can be maintained. That Boston being the case at bar, the plaintiffs should be nonsuited 1 บ. Binney. SAMUEL R. MILLER versus THOMAS LORd. By articles of copartnership between M. and L., the profits were to be divided in certain proportions, and it was agreed that M. might draw from the stock $2500, and L. $ 300, annually, but nothing was said about interest on the sums so to be withdrawn. After the dissolution of the copartnership and a division of the goods on hand, it was agreed, in order to make a final settlement, that M. should estimate the profits of the business, and that L. should elect either to buy M.'s interest in the concern or sell his own interest to M., according to such estimate; that the partner buying out should receive all the advantages to accrue from the notes and accounts held by the firm, and should pay all debts due from the firm; and that the sum due from the partner selling out, on his private account with the firm, should be deducted from the proportion of the profits to be paid to him ; and a memorandum made of matters in dispute, was to be submitted to arbitration, if the parties should not agree in regard to them. It was held, that this agreement was not void for uncertainty in not determining whether the estimated profits were to include interest on the sums withdrawn as above stated, nor for uncertainty in regard to the items contained in the memorandum, these items being expressly excluded from the operation of the agreement. A controversy between a copartnership and one of the partners, in regard to such partner's private account with the firm, is within the equity jurisdiction conferred on this Court by St. 1823, c. 140, "in disputes between co-partners, in cases where there is no adequate remedy at law." 1 in all cases where an account is to be stated between partners, this Court has equity jurisdiction under that statute. The agreement above stated was held not to oust this Court of its equity jurisdiction in a dispute between the partners, for what items were to be included in M.'s private account, and what in the profits, was to be determined, and for these purposes an account must be stated. In general, where articles of copartnership permit the partners to withdraw certain If the parties to an agreement understand it differently at the time of entering into See Mayo v. Shattuck, 14 Pick. 525; Allen v. Thayer, 17 Mass. R. 301; Patch v. Loring, 17 Pick. 336; Cheney v. Batten, Cowp. 243; Wiggin v. Wiggin, 6 N. Hampsh. R. 298; Cripps v. Blank, 9 Dowl. & Ryl. 480; Alton ▼. Pickering, 9 N. Hampsh. R. 494; Johnson v. Beauchamp, 9 Dana (Kentucky) R. 124; Stockett v. Watkins, 2 Gill & Johns. 326 1 See Revised Stat. c. 81, § 8 11 Miller v. Lord. 12 all other matters relating to the concern, is equivalent to a prayer for genera relief. BILL in equity. The bill alleges, among other things, that about the 11th of December, 1820, the plaintiff and defendant entered into copartnership, by an indenture; that in the indenture it was stipulated, that the plaintiff should advance the sum of $20,000, without interest, for the joint benefit of the partners, with which the plaintiff was to be credited in the books of the copartnership; that the profits of the business should be divided in the proportion of seventeen twenty-fourths to the plaintiff and seven twenty-fourths to the defendant; tha: the plaintiff should have a right to draw from the stock of the copartnership the sum of $2500, and the defendant, the sum of $300, annually, and no more, to be charged to the parties respectively; and that the business should be carried on by the defendant, and that he should keep a complete set of books in the most regular manner. It is then alleged, that about the 24th of November, 1823, the copartnership was dissolved by an indenture, in which it was stipulated, that certain merchandise then on hand should be divided between the parties in the proportion above mentioned, to be charged to them respectively; that the defendant should settle and close the business of the copartnership; and that for this purpose all the effects remaining after the division above mentioned, and all the books and papers, except certain notes and acceptances to be collected by the plaintiff, should be delivered to the defendant, subject to the inspection of the plaintiff; and that the defendant should adjust and settle the business according to the terms of the articles of copartnership, except as to the time of the computation of interest on the capital of $20,000 advanced by the plaintiff; that the defendant should render an account to the plaintiff at the end of every term of three months, and should make payments to the plaintiff at the end of every thirty days, until the plaintiff should be reimbursed the amount of capital furnished by him and of all advances made by him, for the firm, with interest as therein provided. The bill further alleges, that pursuant to the last indenture a large amount of property, notes, books, &c., were put into the hands of the defendant, and that he thereupon collected large sums of mon |