Duncan v. Welty. 15 Peters, 93; 14 Texas, 318; 6 B. Mon., 67; id., 74; 7 id., 116; 10 Smedes & M., 143; 2 Sug. on Ven., 880, marg. note 2; 2 Hill on Mort., 632. A vendor's lien is an equitable mortgage. A mortgage is a mere security, and does not entitle the mortgagee to possession; and the payment of the debt renders the mortgage inoperative for any purpose. There is, therefore, no legal reason why an instrument may not operate both as a deed and a mortgage. 1 Hill on Mort., 334; 2 G. & H., (Statutes,) 355, § 1; id., 294, Note. It has been decided in New York, that the acceptance of a deed for mortgaged property, containing a provision that the grantee is to pay the mortgage debt, binds him as effectually as if he had signed the deed. 9 Paige, 446; id., 432; 2 Sandf., ch. 478; id., 251; 2 Denio, 595; 2 Kernan, 74; 8 Smith, (22 N. Y.,) 438. : DUNCAN v. WELTY. JURY-PRACTICE. It is the province of a jury to determine the credibility, but not the competency of a witness. WITNESS. A person over fourteen years of age is presumed competent to testify, and whether he has sufficient capacity to understand the obligations of an oath, or the penalty for false swearing, are questions for the determination of the Court, and not the jury. PRACTICE. In a prosecution for seduction, where the person seduced is a witness, the jury, in order to determine her credibility, may consider her relation to the plaintiff, his influence over her conflicting statements as to the paternity of the child, and the age and general physical condition of the defendant at the time of the alleged seduction. APPEAL from the Carroll Circuit Court. DAVISON, J.-Henry Welty, the father of one Mary Ann Duncan v. Welty. Welty, brought this suit against Duncan, for the seduction, &c., of his daughter. The charge, in the complaint, is, that defendant, in the month of August, 1858, by acts, threats, and force, debauched and had carnal knowledge of her, Mary Ann, and begat her with child, when she was only sixteen years old. Defendant answered by a denial; verdict for the plaintiff, upon which the Court, having refused a new trial, rendered judgment. Mary Ann Welty was introduced as a witness on the trial. Upon her examination she stated thus: "I can not read; I never went to Sunday School; I do not know the obligations of an oath; I suppose it requires me to tell the truth; I do not know the consequences of swearing falsely; no one ever instructed me as to the nature of an oath; I know it is wrong to swear a falsehood." In reference to this statement, the defendant moved to instruct the jury as follows: 1. "If you are satisfied that Mary Ann Weltg does not understand the obligations of an oath, you should disregard her testimony." 2. "If you are satisfied that she, Mary Ann, does not know there is any penalty, human or divine, for false swearing, you should reject her testimony" These instructions were refused, and we think correctly. The witness was over sixteen years of age. In point of law she was presumed to be competent to testify, and whether from the facts adduced by her statement, she was not of sufficient capacity to understand the obligations of an oath, or the penalty for false swearing, were questions for the Court, and not the jury, to determine. 2 R. S. p. 81, sec. 239; 1 Ph. Ev., 4th Am. Ed. p. 4, et seq. Perhaps it would have been competent for the Court, on the defendant's motion, to exclude the testimony from the consideration of the jury; but the errors of the instructions are, that they direct the jury to satisfy themselves, not as to the credibility, but as to the competency of the witness. Reynolds v. Loundsbury, 6 Hill 534; Carpenter v. Dame, 10 Ind. 125. Duncan v. Welty. And further, the defendant moved to instruct the jury: 1. "It is your duty to determine the credibilty of Mary Ann Welty, and in so doing you may, if the evidence warrants it, consider her relation to the plaintiff, his influence over her, and her contradictory statements as to who is the father of the child, if she made any contradictory statements as to that fact, and any improbability in the statements she makes. 2. If you find that the defendant was, at the time of the alleged begetting of the child, sixty-three or sixty-four years of age, and if the witness, Mary Ann, swears that the connection was forcible and against her will, then it is for you to say, from the evidence, whether such accusation is probable. 3. If you find, from the evidence, that the accused was sixtythree or sixty-four years old, at the time of the alleged carnal intercourse, then you are to consider, from the evidence, whether such a thing was practicable, under the circumstances stated by the witness." These instructions were refused, and the defendant excepted. We think they should have been given. It was, obviously, the duty of the jury, in coming to a conclusion as to the credibility of the witness, to consider her relation to the plaintiff, his influence over her, and her contradictory statements as to who was the father of the child." And if, as there was evidence tending to prove, that the defendant was sixty-three years old, stiffened with age, and not having the proper use of himself, it was for the jury to determine as to the practicability of the transaction detailed by the witness. In looking into the whole record it sufficiently appears that the proposed instructions were pertinent to the evidence, and were, therefore, proper directions to the jury. Per Curiam.-The judgment is reversed with costs. Cause remanded for further trial. L. B. Sims, D. D. Pratt and D. P. Baldwin, for the appellant. Byers et al. v. The State ex rel. Hutchison. BYERS et al. v. THE STATE ex rel. HUTCHISON. CONSTITUTIONAL LAW.-The fourth and fifth sections of the Bastardy act, 2 G. &. H. 625, so far as they require the defendant to enter into recognizance to appear, &c., in order to prevent his imprisonment, are unconstitutional and void, because a prosecution for bastardy is founded neither on a criminal nor penal statute, and is a proceeding to enforce a mere civil obligation, for the non-performance of which the defendant can not be imprisoned. BASTARDY BOND.-A bond given to avoid imprisonment for bastardy is without valid consideration, and void. BONDS.-Where a bond or recognizance is taken by an officer or Court, acting simply under statutory power, the instrument must be authorized by the statute, or it will be void; and a complaint upon such an instrument must affirmatively show that it was taken in a case where the law authorized it. APPEAL from the Clinton Circuit Court. PERKINS, J.-This was a suit upon the following obligation: "STATE OF INDIANA, Clinton County, ss. "The undersigned are bound to the State of Indiana in the the sum of 400 dollars, subject to the condition following: Whereas, in a proceeding by the State on the relation of Jane D. Hutchison against the undersigned, Joshua D. Byers, on a charge of bastardy, before Joseph Baum, a justice of the peace of Jackson township, Clinton county, Indiana, the said justice has this day required the said Joshua D. Byers to enter into this recognizance-bond. Now, if said Joshua D. Byers shall appear in the Circuit Court of Clinton county, on the first day of the next term, to answer the said charge, and shall not depart said Court without leave, and shall abide the Byers et al. v. The State ex rel. Hutchison. judgment and orders of said Court in the premises, then this bond shall be void. "J. D. BYERS. [SEAL.] "J. B. DOUGLASS. [SEAL.] Dated the 30th day of April, 1861. Approved by me the day and year aforesaid. "JOSEPH BAUM, Justice." [SEAL.] The Court overruled a demurrer to the complaint, and, after issues of fact were formed and tried, there was final judgment against the defendants. The question arises upon the demurrer. Was the bond sued on a valid obligation? It was executed in a bastardy case to save the defendant from imprisonment in the county jail; and if a prosecution for bastardy is not founded on a criminal or a penal statute, but is simply for the enforcement of a civil obligation, then the bond was executed to escape imprisonment for debt in the ordinary acceptation of that term. That the bastardy act is neither a criminal nor a penal statute is settled by numerous decisions in Kentucky, of whose statute on the subject, ours is a copy. 1 M. and H. Dig. It has been thus treated in this State; The State v. Evans, 19 Ind. 92, and Walker v. The State, 6 Blackf. 1; and such an act has been held, in Iowa, to impose simply a civil obligation, to create a debt, for the collection of which, under a constitution forbidding imprisonment for debt, such imprisonment is unlawful. Holmes v. The State, 2 Green's Iowa Rep. 501. The bond, then, which was the foundation of the present suit, was required and taken by the magistrate without authority of law, because the statute authorizing it was unconstitutional, and so far void, and not law; and, further, the bond was, we may say, forbidden by the constitution, the par |