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had figned by his true baptifmal name,
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any obftacle to our giving judgment for

James Jackfon ex. dem. Wil against Eugene Lu

EJECTMENT for lands in the coun by the plaintiff, under the Bear Hill Pa fendant under the one to Staats. Th ed on the cafe made were these.

In 1712, a patent was granted to heirs for ever, of a certain tract of 1 Orange, "Beginning on the weft fide "against Anthony's Nofe, at the mou "called by the Indians Affinnapainck, a "river, as it runs, a north-east course "which is about four chains to the north "thence up into the woods north-we

3 A

ains broad."

a patent, fince called the Bear Hill Patent, iffuof Richard Bradley, the then attorney general, for tract or parcel of land, lying and being in the f Orange, on the weft fide of Hudson's river in the bounds of the land formerly granted to in John Evans, the patent whereof has fince been and the lands reaffumed,) Beginning on the north certain brook or creek in the Highlands, called Kill, (falling into Hudfon's river, oppofite AnTofe,) where the line, of the west bounds of the land nerly granted to Samuel Staats, crosses the faid brook or runs thence north twenty-eight degrees eaft, along ne four chains, then north fifty-five degrees weft e chains, then weft thirty-one chains, then fouth red and feventeen chains, to a certain creek (or run

J

on the weft fide of a certain meadow, called Salif ow, then down along the faid creek (or run of s it runs to Hudfon's river aforefaid, then up said river, as it runs, to the faid land granted to Sats, then along the bounds there of the fame lands ace where this tract firft began, containing eight acres befides the ufual allowance for highways, in - mentioned tract of land all the faid Bear Hill, and e faid Poplope's Kill (or Creek) and part of the ereto adjoining, remaining yet unpatented, are Bradley by leafe and releafe, for good confide

Kill and land on each fide of it, as tl in the release of Richard Bradley. mitted, the plaintiff offered, at the tri tablish the will of the teftator, by the in the book of the judge of the court ed by evidence, that the original will co ther in the office of the furrogates Albany. An objection to the recept was made and overruled. The conveya then fubftantiated, and the plaintiff cal tified, that if a ftraight line parallel to t eaft courfe of the Staats Patent, was r tion of the north-weft courfe, to the 1 painck, Bradley's grant would include tion, but then the line would cross the F about five chains from the Hudfon's riv ton Hook is an island to the north of Pr dow of about five acres, which joins Prince's Falls. That no other lands name, and that a part of the defen which were in his poffeffion, were mor the Hudson, or the mouth of Poplope's tiff infifted was not the run of water m Patent, and the premises being on the by the grant to Bradley, and being r

of the Hudion; and, with reipect to the propriety o ing the record of the probate of Bradley's will, he la these positions. When an original instrument is not where by law it ought to be, it must be prefumed to That flight evidence of the lofs of a paper is fufficien vingston v. Rogers, 1 Caines's Ca. in Err. 27. That a diftinction between the record of the probate, and bate or letters teftamentary, which are no more than of that record. The firft is evidence, the fecond Gil. L. Ev. by Loft, 70. Pow. on Dev. 706. Ski 1 Ld. Ray. 731.

Smith contra infifted, that the proof of the lofs of ginal will was not fufficient, and that the weft line Staats Patent must be no where less than 20 chains fr Hudfon. The plaintiff's conftruction, therefore, err and the verdict of the jury conclufive.

Per curiam delivered by Spencer J. In my view cafe, it is unneceffary to enter into minute confidera the evidence as to the adverse poffeffion of the defendant, fituation of John Canton Hook, or the probabilities w Prince's Falls or Poplope's Kill, were intended by the diary grant in the Staats Patent. The premises in qu lie on Poplope's Kill, and it appears to me the plaintif

chains, mentioned in Staat's fecond co Affinnapainck, difregarding the exp which required him to confider the twe ed at the mountains, and to run alon parallel with the river. It is in vain t that fome part of the defendant's poff twenty chains from the river, because is to be rejected where an object is poi too in running lines parallel with a that the distance, where that is to c that the river in fome one point is not quired.* In other words, the west without reference to the mountains, i general course of the river, might, in greater distance than the twenty cha rectly run. In my opinion, therefor failed in fhewing himself entitled to a the defendant's poffeffion. As to the lope's Kill was the run of water intende granted to Staats, it was a question jury, and the court can fee no reason f dict in that refpect. On the whole, nion that, on no principle is the plaint al. He therefore takes nothing by his