The demandants’ writ describes a tract of land seventy-five feet in length and fourteen inches in width, lying on the southwesterly side of the line which divides the lands of the parties, and adjoining thereto. The line between the p. ties is described as being parallel to and distant northeasterly one hundred and six feet from the boundary line between the wharf property of Henderson Inches and the estate of the demandants.

The tenants plead nul disseisin, and add a specification of defence, according to the system of pleading which is still continued in real actions. The specification alleges, 1. That the demandants made two deeds, one dated April 2,1838, and the *26other April 6,1840 ; the first conveying a tract of land therein described; the second conveying a tract of land lying southwesterly of the first tract and adjoining thereto, and being four feet in width, under which deeds the tenants claim title to the land which the deeds describe. 2. As to all the residue of the land sued for, they disclaim. 3. “ If any portion of the build ing on defendants’ said land projects over or on to the demand-ants’ land, it was so built and constructed by the leave and license of said demandants.”

The report states that “ the tenants claimed title to the land in dispute by possession independently of deeds.” By this it is to be understood that they claimed title, even though the land in dispute should be found to be external to that described in the deeds. The report further states that the demandants’ counsel objected to ,the admission of evidence of twenty years’ possession. But the ground of the objection is not very clearly stated. Indeed, the report bears marks of haste or carelessness in several important points, and the specification is very loose and inartificial. But it is stated that “ the objection was overruled by the court, on the ground that such evidence was admissible under the pleading.”

The court are of opinion that, under the plea and specification by which the tenants disclaimed as to all the land lying southwesterly of that described in the two deeds above mentioned, evidence of adverse possession of any part of the land thus disclaimed was inadmissible. For this disclaimer left but two questions open : 1. To ascertain the southwesterly line of the tract described in the deeds ; and 2. The existence and effect of the alleged license. No question as to the license is raised by the exceptions, and therefore there is no occasion to speak of it further.

But in respect to the southwesterly line, evidence was offered which was objected to. It was admitted, and the demandants except to its admission. The report does not make it clear that it was inadmissible.

On this point it appears that the tenants’ southwesterly line was established by his deeds to be one hundred and six feet *27distant from and parallel to the line of Henderson Inches. In order to make the evidence offered admissible, there must have been some evidence tending to show that the position of this line could not be ascertained. When the evidence was admitted, no such evidence had been offered by the tenants. But the tenants allege that such evidence was offered afterwards. If this were so, the evidence was admissible, for the order in which evidence shall be received is within the discretion of the presiding judge, and his ruling is not subject to exception. Whether any evidence on the point was offered afterwards does not clearly appear, and therefore the exception is not sustained ; for this court cannot know whether the demandants were aggrieved by the ruling.

The final instruction to the jury was correct; for if the line of Henderson Inches could be ascertained, the distance of the Dolbeare line was immaterial. Exceptions sustained.