ration, conveyed to one Roger Tompkins the Bear Hill patent, "faving and excepting all the faid Poplope's Kill, or brook, " and all the falls of water therein, and all those lands which "lie on each fide of the faid Poplope's Kill or brook, within "the distance of four chains and a half from the said kill "or brook, all the way the fame runs through the above "released lands, or any part or parcel thereof." Some time after executing the above conveyance, Bradley died, having first duly made and published his will, in which he made no particular mention of the premises, but, after some specific legacies, devifed "all the reft and refidue of his eftate, both real " and perfonal, whatsoever, to his wife, Elizabeth Bradley, "with full power and authority to grant and convey the fee "fimple thereof." In May, 1760, Elizabeth Bradley, by bargain and fale, reciting the deed from her husband to Tompkins, and the reservation therein, in confideration of five fhillings, conveyed in totidem verbis, to William Donaldfon, the father of the leffor of the plaintiff, the Poplope's Kill and land on each fide of it, as the fame were reserved in the release of Richard Bradley. The patents being admitted, the plaintiff offered, at the trial of the cause, to ef tablish the will of the teftator, by the record of the probate in the book of the judge of the court of probates, and shewed by evidence, that the original will could not be found either in the office of the furrogates of New-York, or of Albany. An objection to the reception of this testimony was made and overruled. The conveyance to Donaldson was then fubftantiated, and the plaintiff called a witness who teftified, that if a straight line parallel to the Hudson, or northeast course of the Staats Patent, was run from the termination of the north-weft course, to the head of the Affinnapainck, Bradley's grant would include the premises in queftion, but then the line would cross the Poplope's Kill, at only about five chains from the Hudfon's river. That John Canton Hook is an island to the north of Prince's Falls, on a meadow of about five acres, which joins the land adjacent to Prince's Falls. That no other lands were known by that name, and that a part of the defendant's improvements, which were in his poffeffion, were more than 20 chains from the Hudson, or the mouth of Poplope's Kill. This the plaintiff infifted was not the run of water mentioned in the Staats Patent, and the premises being on the Poplope's Kill, paffed by the grant to Bradley, and being reserved in the deed to ALBANY, Jackfon V. Lucett. Feb. 1805. Jackfon V. Lucett. ALBANY, Tompkins, were afterwards conveyed to the father of the leffor of the plaintiff, by Elizabeth Bradley, to whom they were devised by the refiduary claufe in the will of her hufband. The defendant adduced teftimony tending to fhew an adverfe poffeffion, which it is unneceffary to detail, and from the evidence of one witnefs, who faid John Canton Hook extended to the mouth of the Poplope's Kill, contended the premifes were within the limits of the fubfidiary grant in the Staats Patent, the run of water there mentioned being the Poplope's Kill, and that the line to be run from the end of the north-weft courfe of the Staats Patent, ought to be a line parallel to the Hudson, in all its finuofities, so as to be always twenty chains diftant from the river. The judge having charged for the defendant, the jury found a verdict in his favor, and that the Poplope's Kill was the ftream contemplated in the Staats Patent, by which four chains on each fide that stream were granted. Colden moved to fet afide the verdict, as being against evidence. He argued from the impoffibility of running the weft line of Staats Patent, exactly parallel to the finuofities of the Hudson; and, with respect to the propriety of receiving the record of the probate of Bradley's will, he laid down thefe pofitions. When an original instrument is not found, where by law it ought to be, it must be presumed to be loft. That flight evidence of the lofs of a paper is fufficient. vingston v. Rogers, 1 Caines's Ca. in Err. 27. That there is a diftinction between the record of the probate, and the probate or letters teftamentary, which are no more than a copy of that record. The first is evidence, the fecond not. I Gil. L. Ev. by Loft, 70. Pow. on Dev. 706. Skin. 174. 1 Ld. Ray. 731. Li Smith contra infifted, that the proof of the lofs of the original will was not fufficient, and that the weft line of the Staats Patent must be no where less than 20 chains from the Hudfon. The plaintiff's conftruction, therefore, erroneous, and the verdict of the jury conclufive. Per curiam delivered by Spencer J. In my view of this cafe, it is unneceffary to enter into minute confideration of the evidence as to the adverfe poffeffion of the defendant, or the fituation of John Canton Hook, or the probabilities whether Prince's Falls or Poplope's Kill, were intended by the fubfidiary grant in the Staats Patent. The premises in question lie on Poplope's Kill, and it appears to me the plaintiff failed ALBANY, Jackfon v. Lucett. in the outfet, in locating the premifes within the patent to Bradley. The will I confider as properly in evidence. The facts proved were fufficient to induce a prefumption of the lofs of the original, and on the authority of the cafe of Livingston v. Rogers, decided in the court for the correction of errors, when evidence fufficient to induce the prefumption of a lofs of a deed is exhibited, either parol proof may be given of the contents, or a copy may be received. I am fatisfied, therefore, as to the plaintiff's deduction of title, and fhall reft my opinion folely on his locating that title. Staats Patent is the anterior one, and must be first satisfied. It begins at the mouth of the Affinnapainck, and then runs up the river, as it runs, four chains to the north of Prince's Falls, then into the woods north-weft twenty chains to the mountains, then along the said mountains parallel with the river to the head of the Affinnapainck, then down the fame to the place of beginning. The plaintiff's furveyor, to afcertain this tract, ran a straight line from the termination of the twenty chains, mentioned in Staat's fecond course, to the head of the Affinnapainck, difregarding the expreffions in the patent, which required him to confider the twenty chains as terminated at the mountains, and to run along the mountains, and parallel with the river. It is in vain that the plaintiff proved that fome part of the defendant's poffeffions were more than twenty chains from the river, because the diftance of chains is to be rejected where an object is pointed out, and because too in running lines parallel with a river it is only requifite that the distance, where that is to control, fhould be fuch, that the river in fome one point is not further off than is required.* In other words, the weft line of Staats Patent, • Ante 177without reference to the mountains, if run parallel with the ciple adopted in The fame pringeneral course of the river, might, in fome places, be at a the location of greater diftance than the twenty chains, and ftill be cor- tent. Jackfon ex rectly run. In my opinion, therefore, the plaintiff wholly dem. Quackenfailed in fhewing himself entitled to any part of the lands in the defendant's poffeffion. As to the fact whether the Poplope's Kill was the run of water intended in the second tract granted to Staats, it was a queftion fairly fubmitted to the jury, and the court can fee no reason for disturbing their verdict in that refpect. On the whole, we are clearly of opinion that, on no principle is the plaintiff entitled to a new trial. He therefore takes nothing by his motion. the Hofick Pa bufh v. Dennis. ALBANY, Feb. 1805. James Kane and anor. V. Scofield. If a perfon be admitted de James Jackfon ex. dem. Jonathan Jackway and IT was ruled that if a perfon be admitted to defend on fendant in eject- payment of costs, and, after entering into the consent rule, ment, and keep out of the keep out of the way to avoid being ferved with a copy of the way to avoid ca. fa. against the casual ejector, a rule will be granted to fervice of the fhew caufe, why an attachment should not go against him, the cafual eject- and that fervice of that rule, at the defendant's house, shalt be fufficient. ca. fa. against or, the court will grant a rule, to fhew cause why an attachment fhould not iffue, of which fervice at the house of the defendant will be fufficient. If the indorfe declaration on a be made to John Kane and Oliver Kane against Isaac Scofield. THE declaration in this cafe ftated the indorfement of a ment of a firm promiffory note to a firm whose surnames only had been used, be stated in a in the following manner, "to certain perfons ufing the name, bill or note to ftyle, and firm of Willoughby and Wefton," and it afterwards ftated their indorsement to the plaintiffs thus: "and them, as perfons "ufing the name," the faid perfons fo ufing the name, style, and firm of ftyle,and firm," "Willoughby and Weston indorsed the said note, the pro66 per hand-writing of one of them, in their faid co-part"nership, name, ftyle, and firm, being to fuch indorsement "fubfcribed." To this the defendant put in a general demurrer. indorfed, and writing of one faid copartnerfhip, name, Hopkins on a notice of motion, for the 11th, moved to ftyle, and firm, overrule it as frivolous, and claimed on that account a priority to other caufes, entered for argument. being to fuch indorsement fubfcribed," it Caines contra infifted, that the right of bringing on a deis good on gene- murrer in preference to other causes, fet down for ral demurrer. To prevent a demurrer's being overruled as frivolous, there muft appear a colour for oppofition, it is not enough for counsel to mere argument, applied only to cafes where no oppofition was made. M'Cabe v. M'Kay,* in August laft. That at all events the notice was bad, being for the 11th, inftead of the first day of term. Hopkins in reply. The demurrer book was not made up till the first day ;t the caption is of this term. Per curiam. By the oppofition of the cafe cited, is not ly fay he will intended the mere faying of counsel that they oppofe; it must oppose. When a reafon for not noticing for the first day of term Ante 100. The time at which a question on demurrer fhall be deemed to arife, fhall be the day the joinder was received by the party demurring. 3d Rule Jan. 1799. Cole. Ca. 14. be fuch as has at least a colour or femblance of reality. The notice could not be for the first day. It appears by the record,. that it was not till then that there was a joinder in demurrer. N. B. It was ruled in this cafe, that where the reafon of not noticing for the firft day of term, appears on the face of the record, no affidavit in excufe need be made. ALBANY, Feb. 1805. Furman V. Hafkin. appears on the face of the record, there need not be any excufe fhewn by Richard Furman against Benjamin F. Hafkin. affidavit. The plaintiff declared against the A promiffory demand, if nenote, payable on gotiated by the time after made payce a long is, in the hands of his indorfee, which it would in the hands of payee him be a reasonable ment of a note the facts are a debtor, for the ON DEMURRER. defendant, as maker of a promiffory note, dated on the 19th. of July, 1793, payable on demand, to William Buckle or order, and by him, on the fame day, indorsed to the plaintiff To this the defendant pleaded, ist. non affumpfit, 2nd. the ftatute of limitations, 3d. that he was, on the first day of fubject to all the January, 1793, indebted to Buckle, in the fum for which equities to the note was made, and on that day executed a bond to An- have been liable thony Franklin, Jofeph Bird, and Edmund Prior, for 9000l. the for, and on account of the money due to Buckle, and self. What shall of all other debts which he, the defendant, owed; upon which time for debond the obligees, in April term, 1793, recovered judgment manding payagainst him, averring that the note was made and delivered to payable on deBuckle, for the same sum of money as was due to him on the mand, is, when first of January, 1793, as aforefaid, that the judgment exceed- greed oh, mated the amount of every thing owed by the defendant, that the ter of law. If a above fum due to Buckle, was part of the 9000l. for which benefit of all debt Buckle did, on the first of August, 1793, accept the creditors, give judgment in full fatisfaction, and on the next day caused a ca. bond to the fa. to be fued out thereon, upon which the defendant was ta- his debts, on ken, and was afterwards, on the first of January, 1795, by con- which judgfent of Buckle difcharged therefrom, fince which time, he nego- ed, and he aftiated the note to the plaintiff. Demurrer inde, affigning for caufes, terwards give a ift. that the defendant did not allege, that the bond of the first of vidual creditor Jan. 1793, was given and executed at the request, or by the for the amount confent of Buckle, nor that it was agreed between them, that debt, fuch note of his separate the bond should cancel the debt due from the defendant to Buckle. 2d. That it did not appear that the bond was executed to Franklin, Bird, and Prior, as trustees for the creditors the debtor of the defendant generally, or for Buckle in particular. 3d. on the judg That it appeared the note was made after the execution of the the request of bond and judgment entered thereon. 4th. That the note being the creditor, negociable, and negotiated to the plaintiff, cannot be defeated, the trustees to to trustees a amount of all ment is recover note to an indi will be fatisfied or's discharging by fuch credit the debtor from execution ment iffued at and the affent of |