Field, C. J. concurring.
We see no objection to the complaint, which seems to pursue the usual form in possessory actions. The mere fact that the exact time of *186the alleged ouster is not stated, is not material, especially as no claim was made for damages, nor is any recovery had for them. Nor is there anything in the fact that the prayer is that the defendants surrender the possession, instead of asking restitution.
2. We think the proof was sufficient to let in parol evidence of the deeds offered. It is impossible in cases of loss of instruments by fire, to prove with exactness the contents. We think that the proof was sufficient that these papers and the record of them were burned.
3. The instructions now assigned for error, as those given for plaintiff and those refused for defendants, were not excepted to at the time they were given or refused. On a motion for a new trial, therefore, for this cause, and an appeal here for the refusal to grant the motion, we cannot consider them. We see nothing in the grounds for non-suit, set out in the motion, to require the Court to grant it.
There was some proof of the identity of the premises sued for; and it is well settled that one tenant in common may sue one in possession by adverse claim, and recover the premises, if the plaintiff represents the better title.
Judgment affirmed.