swore expressly to the sanity of the testator and his freedom from influence, at the two different periods of publishing the will, and gave their reasons at full length. Even in Douglass's fits of intoxication, he adjusted accounts with correctness, possessed his mental powers, and was acute in all his bargains. And beyond this, several witnesses proved the settled intention of his mind at different times, correspondent with the writing produced, that he would dispose of his estate in the manner he has done.

To grant a new trial under such circumstances, would be going further than courts have usually gone, and would intrench on the province of jurors.

By the court. The verdict given was not against the charge of the judge, who tried the cause, nor can we say it was against the weight of evidence.

The declarations of the testator to different persons at divers times, of his intended disposition of his estate, is strong evidence in support of the will, conjoined to the testimony of the five witnesses who swear to his sanity on the two days of publication. We have no difficulty in saying, that we have a superintending power to grant new trials, in cases of this nature, where the circumstances will warrant it; but in the present instance we do not find ourselves at liberty to set aside the verdict, and the court therefore unanimously discharge the rule, and direct judgment to be entered for the plaintiff.

RESPUBLICA against CAERNARVON TOWNSHIP, in Berks county.

A pauper gains a settlement by contracting for a town lot, under a yearly rent charge, building thereon and residence, though he obtains no deed for it.

CATHARINE M'DONALD, the wife of William M'Donald, was removed by the order of two justices of the county Berks, from the borough of Reading, to the township of Caernarvon, in the said county, as the place of her last legal settlement. From this order, Caernarvon appealed to the court of Quarter Sessions, and the appeal being heard on the merits at April sessions 1793, the following facts were in proof to the court, who stated a special case.

That the said Catherine was married 23 years before to the said William, and ever since their marriage, they had been moving from place to place, without acquiring any settlement, unless at Morgan's town, in the said township of Caernarvon. Upon their moving into the said town, the said William M'Donald bought two lots there, upon

one of which he built a house or cabin, and resided two years therein. The other lot he gave up because he did not choose to build, or make any improvement upon it.

The lot thus bought by the said William in Morgan's town, he pur- . chased on the same terms as others did viz., on a ground rent of one dollar per annum. Neither at the time of the purchase, nor ever, did the said William get a deed for the lot on which he built and resided as aforesaid, because no deeds were at the time of the said purchase given to any one in Morgan's town, though afterwards deeds were given.

Joseph Jenkins, the son-in-law of Morgan, the owner of the town, under the authority and by direction of his father-in-law, sold lots in the said town; and from the said Joseph acting in this capacity, the said William purchased the two lots above mentioned, on one of which he built and resided as aforesaid.

Before the said William and Catharine removed from Morgan's town, to Conestogoe, they sold the said house and lot to one William Robb, clear of all demands; and in the price stipulated, they made him an adequate allowance for the expense of taking out the deed, and completing the title.

The said William and Catharine could not agree together and therefore parted. He is still alive, but has not gained a settlement since their separation.

The court confirmed the order of removal in August sessions 1793.

And now Mr. W. M. Smith, on behalf of the overseers of the borough of Reading, read the case, and submitted it to the decision of the court.

Mr. T. Ross, for the township of Caernarvon, barely stated two exceptions:-1st, That the said William M'Donald never obtained a title for the lot on which he built. 2d, That it was chargeable with a ground rent. But he cited no authorities.

By the Court. There can be no doubt of the said William M'Donald's obtaining a settlement in Caernarvon. This case is much stronger than that of Archbrittle and Wyley. 1 Stra. 608. 2 Sess. Cas. 115. Here M'Donald came into possession of the lot, by an agreement duly made with a person having due anthority for that purpose from the owner of the lot, and could have enforced the specific execution of the contract in a court of equity. He built and resided on the lot. He was irremoveable from this estate, and consequently gained a

settlement, and his wife also in his right. Vid. 1 Sess. Ca. 200. 2 Stra. 983. Foley 257.

The second exception will admit of no dispute. Much valuable property is held in the city of Philadelphia under a yearly rent charge, and this is the case in general in most of the county towns in the state. It would be strange doctrine to assert, that the proprietors of property thus chargeable, did not gain a settlement thereby.

Order of sessions affirmed.

Road from Strasburgh in Franklin county, to Black's Gap.

A review of a road is a matter of right; but a re-review is merely in the discretion of the sessions.

It appeared by the record, that viewers had been appointed to lay out the road, applied for by petition November sessions 1792, in Franklin County. The order having been continued, the report of the viewers was made to September sessions 1793, and on a petition for a review, the sessions appointed reviewers. In February sessions 1794, two petitions were filed, praying a confirmation of the road laid out by the viewers. In May sessions following, the report of the reviewers was filed, agreeing with the return made by the reviewers, except on two courses, where the distances were inconsiderable. A petition was preferred to the same sessions, praying a re-review, which the court rejected, and confirmed the return of the review.

Mr. Ingorsoll contended, that the re-review was a matter of right,and the not granting it was error, on the face of the proceedings.

Mr. Lewis contra, was stopped by the court, who obsevered, that ever since the decision on Ring's road in Chester county, (Dall. 11,) a review alone was deemed a matter of right. There was strong reason for the determination, because it is well known, that in most instances. formerly, the viewers of a road were generally nominated by the appliers for it; and it would be unreasonable that a township should be concluded by their return. On the appointment of reviewers, the sessions usually allow the parties the liberty of objecting to the persons nominated, and it becomes a species of special jury. The reviewers proceed in the presence of the parties interested, and hear every thing for and against the road. Hence the report of the reviewers has always more weight with the court than the first return. It is in the discretion. of the court, whether they will grant a second review or not. Why. should they grant it, if their judgments are satisfied of the utility and necessity of a road laid out by the reviewers? Or why, if they are

bound to grant a second review, should they not go on to a third, fourth, &c.? The appointment of re-reviewers may be generally practiced, where the court think they stand in need of further information respecting the road, but it certainly cannot be a matter of right.

Order of sessions affirmed.

EDITH RUSTON, ROBERT WALLACE, JOHN RAMSAY and JOHN GILLILAND, executors of JOB RUSTON, against THOMAS RUSTON.

[S. C. 2 Dall. 243.]

A will must be judged of by its own words, and not from evidence aliun de. Devise of four tracts of land to J. his eldest son, Provided he pays to the executors 3000l. at certain periods, with power to the executors to sell three of the tracts on J's. default; J. enters therein; the executors sell two of the tracts, and the third having been mort. gaged by the testator, is sold by process of law: the devisee is liable to pay the difference between the net amount of sales, and the 30007 and interest.

And the personal estate of the testator shall not go in ease of the morgaged premises so far as to defeat the specific or ascertained pecuniary legacies, or any part thereof. Aliter of the legacies of the residuum.

Debt. Pleas nil debet and payment.

This cause come on to be tried in bank January 8th, 1795, when it was agreed, that a verdict should be given for the plaintiffs for 20967. 13s. 4d. without argument, subject to the court's opinion on the will of the testator, and the following facts.

The will of Job Ruston bore date 17th January 1784, and after the usual introduction, run as follows:

"And for the settling my temporal estate, I devise and bequeath in manner following: Imprimis, after my just and lawful debts and funeral charges are paid, I bequeath to my wife Edith 3007. according to our marriage contract, payable one year after my death; (with certain specific articles) 2007. more, payable in two years and 1007. more, payable in three years after my death; and if not paid at those times, she shall be paid interest; also a mulatto female slave, &c. Item, I give and bequeath to my son Thomas, (the defendant) all the lands I live upon, containing 425 acres, with my mill, and 44 acres of land with the usual allowance for roads adjoining the land I live upon, and the half of my tract in Penn's manor, being 218 acres and half a quarter of an acre, to him, his heir and assigns, forever: Provided, he pays, or causes to be paid to my executors hereinafter named, or to their executors or administrators, the sum of 30007. in manner following, viz: 4007. per annum, without interest; the first payment to be made, if my son Thomas comes to America, in one year after my decease; but if he does not come to America, the first payment shall be made in two years after my decease, but if my son

"Thomas does not pay the first or any of the payments, within three months of the time I have ordered them to be paid; in that case I do hereby empower my executors hereinafter named, or the majority of them, or the survivors or survivor of them, or if all are dead, their executors or administrators, fully to bargain, sell, alien, and confirm in fee simple, all that 44 acres of land,adjoining my other tract of 425 acres, except so much of said 44 acres as shall contain a road of three perches broad, along the line of Joseph Strawbridges's land, to take in water to my large field adjoining said 44 acres, to any person or persons, their heirs and assigns, forever; and such sale shall be good and effectual in law against my heirs, to all intents and purposes: and in case my son Thomas fails in paying thesecond, or any other subsequent payments, in that case, I do hereby empower my executors and those within named, to sell 100 acres of land more, being part of my tract of 425 acres, to be laid off(in a certain specified manner:)and if my son Thomas fails in making the fourth, or any subsequent payment, in that case I do empower my executors, and those within named, to sell my 218 acres and half a quarter of an acre,being the remaining half part of the tract that I sold to my son-in-law John Evans Finley, in the same manner that I have willed my 44 acres of land to be done. And I do hereby empower my executors, and those within named, to comply with my articles of agreement with the said John Evans Finley. I give to my wife Edith interest for the money I have bequeathed her from one year after my decease, till it is paid. I give to my son John 2007. which shall be in full of his share of my real estate (and certain specific articles.) I give to my daughter Sarah 57. which shall be in full of her share of my real estate. I give to my daughter Louisa 2007. which shall be in full of her share of my real estate, and three mulatto slaves. I give to my daughter Elizabeth 57. which shall be in full of her share of my real estate, and three mulatto slaves. And the remainder of my estate, I do will and bequeath one tenth part thereof to my daughter Sarah, one tenth part thereof to my son Thomas, and the remainder shall be divided in three equal shares, which I give to John Louisa and Elizabeth, to be divided between them, share and share alike. I give to Thomas Love and James Boyd 100. to be put to interest, for the support of a minister in the meeting house of Fagg's manor, the said 1007. to be taken out of said remainder of my estate, before any share or dividend shall be made to my sons or daughters. And I do appoint my wife Edith, Robert Wallace, John Ramsey, and James Gilliland, my executors. In witness, &c."