1. The plaintiff’s affidavit was rightfully admitted to prove the loss of a document, notwithstanding the change of the law, by which the party is admitted as a witness.
2. The defendant offered to show that he and those under whom he claimed had been in possession more than three years, by a title or claim of title adverse to that of the plaintiff. This, by force of the statute, is a bar to this summary process. Rev. Sts. c. 104, § 3. The plaintiff must bring his suit to try his title in another tribunal.
The possession was uninterrupted, unless the entering by the mortgagee, under whom the plaintiff claims, to foreclose his mortgage, was an interruption. The mortgagee did not take actual possession, or actually exclude the tenant, or continue to hold or claim the actual possession.
Whatever may be the precise nature of such statute entry to foreclose, as against the mortgagee and those claiming under him, and the mortgagor and those in "privity with him, it can have no efficiency in ousting or changing the possession of one in actual possession, claiming under a distinct and adverse title, whose possession is not actually interrupted.
3. These proceedings do not come under the practice act, which relates to actions; for this is not one of the personal actions mentioned in the statute, to which the sections regulating answers are confined. St. 1852, c. 312, §§ 12-18. The answer is a substantial denial of the plaintiff’s right to the possession under this process, and a denial that the defendant holds the same unlawfully. Such a defence is good under such general issue, unless a more specific bill of particulars is called for. The court are of opinion that the evidence should have been admitted, and the jury should have been instructed that the fact, if proved, would be a good bar to this process. Exceptions sustained.