We can see no valid ground of exception to the several rulings to which objection was taken by the plaintiffs at the trial.
1. The instruction as to the acquisition of a title by disseisin, for which the plaintiffs asked, was rightly refused. The demanded premises consisted of a wood-lot. It had never been entirely inclosed by a fence. A portion of one side had always been open, and the fences on the other sides were erected between the lot in question and land which was cleared, and may have been placed there for the purpose of inclosing these adjacent lots, and not in order to indicate possession and ownership of the wood-lot. Whether the fences had been erected for the latter purpose was a question of fact for the jury in connection with the other evidence in the case. It would have been erroneous for the court to pronounce on its effect as establishing a title by disseisin. Such would have been the result if the request of the plaintiffs had been complied with. The whole evidence bearing on the question of disseisin was rightly left to the jury under instructions which were in conformity to adjudicated cases. Slater v. Jepherson, 6 Cush. 129. Coburn v. Hollis, 8 Met. 125. Ewer v. Lovell, 9 Gray, 276.
2. The testimony of the witness Parker was clearly competent There was sufficient proof of the loss of the paper to render secondary evidence of its contents admissible. As the case is *77stated in the exceptions we must assume that the evidence was given under the rule laid down by the court; that is, from the recollection of the witness aided by memoranda which he knew to have been made by himself contemporaneously with the execution of the written agreement. This is a correct statement of the rule, and the testimony was rightly admitted. 1 Greenl. Ev. § 437.
3. The record of the action against Jonathan Morrison was admissible for two purposes: first, as tending to contradict his testimony which had been introduced by the plaintiff; second, as in the nature of an admission in disparagement of title by one with whom the plaintiffs claimed to be in privity as grantees of the estate in controversy. Doe v. Pettett, 5 B. & Ald. 223. Brattle Square Church v. Bullard, 2. Met. 363, 368.
4. Those portions of the answers to certain cross-interrogatories in the deposition of Morrison which were ruled out by the court were not responsive to the questions and were rightly excluded as irrelevant and impertinent.
Exceptions overruled.