well knew that such parties were residents of other counties, and that, for the purpose of giving the Court, in which the action was pending, jurisdiction of the cause, the plaintiff fraudulently joined in the action the parties who were residents of said county, for the purpose of compelling said non-residents to submit to a trial away from their own counties.-Shryer v. Miner, 175 5. RAILROADS.-All the animals killed at any one time by a railroad constitute a separate and indivisible cause of action, and where their value exceeds 50 dollars, the Circuit Court or Court of Common Pleas has original jurisdiction, but not otherwise.-The Indianapolis, &c., R. R. Co. v. Elliott, 430 6. As to the power of the Courts of Ohio to enforce the remedy of bondholders against railroad companies, in cases where Indiana railroad companies have been consolidated with Ohio railroad companies, the reader is referred to the important case of The Eaton and Hamilton R. R. Co. v. Hunt et al., 457 7. FRAUDULENT SALES.-The Circuit and Common Pleas Courts have jurisdiction, on the application of his creditors, to set aside a fraudulent sale of real estate, made by a deceased person.-Tyler v. Wilkerson, 473 JURY-DUTY OF. 1. PRACTICE. It is the province of a jury to determine the credibility, but not the competency of a witness.-Duncan v. Welty, 44 2. WITNESS.-A person over 14 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. Ibid. 3. PRACTICE. Where the issues are altered after the jury is sworn, the jury must be re-sworn before hearing the cause.-Hoot v. Spade, 326 LANDLORD AND TENANT. 1. RENT.-Rents, which have accrued previous to the death of the lessor, are collectable by the personal representative, but those that accrue afterwards by the heir.-King v. Anderson, LIEN. See MECHANIC'S LIEN, 1, 2. VENDOR'S LIEN. 385 1. MORTGAGE-DELIVERY OF.-B executed a mortgage of real estate to C, in his absence from the State and without his knowledge, and caused the same to be recorded in the proper office, and afterwards, before the mortgagee had accepted and received the mortgage, either in person or by agent, D recovered a lien upon the mortgagor's title in the mortgaged property. Held, That such lien is entitled to the preference over the mortgage.- Woodbury v. Fisher, LIMITATION. See INDIANA CENTRAL RAILWAY Co. v. OAKES, 9. 387 1. SET-OFF.-A set-off may be pleaded to the amount of the cause of action in any case, although barred by the statute of limitation. -Fankboner v. Fankboner, 62 2. DOWER.-In 1837, A was a married woman, and her husband owned real estate, which, in 1838, he sold and conveyed by a deed in which she did not join. She was, at the time, a minor, and attained her majority on the 23d day of April, 1842, and on the 30th day of January, 1862, she filed her petition for the assignment of dower in said real estate. Held, That her right thereto was not barred, and that the same is governed by the statute of 1843, on the assignment of dower, (R. S. 1843, p. 811, § 112, and others,) which is continued in force by § 4, p. 431, 1 R. S. 1852.-Harding v. The Third Presbyterian Church, 71 3. Where a cause was tried in October, 1853, and an appeal taken and transcript filed in this Court, and process issued to a resident defendant, and delivered to the proper officer, in September, 1856, the appeal was not barred by the statute of limitations, the commencement of a suit, or appeal, dating from the issue and delivery of process to the proper officer, and it is not material whether the process was served within three years or not.-Evans v. Galloway, 479 LIQUOR. May be sold by Agent. See AGENCY, 1. CRIMINAL LAW AND PRAC TICE GENERALLY. MANDATE. See PLEADING, 13. MARRIED WOMEN. See DESCENT, 2. 1. CONTRACTS OF MARRIED WOMEN.-The separate mortgage and notes of a married woman, given to secure the payment of the purchase money, for real estate sold and conveyed to her, are void, and are not competent evidence for any purpose.-Haugh v. Blythe's Ex'r., 24 2. VENDOR'S LIEN.-But the lien of her vendor for the purchase money is not thereby impaired, where the contract of sale on his part has been fully performed. Ibid. 3. STATUTE OF FRAUDS.-And the fact, by the terms of her purchase, in such a case, a part of the purchase money was not payable until the expiration of a greater period than one year from the date of the sale, does not impair the vendor's lien for the purchase money, because the statute of frauds, in such cases, applies to such contracts as are not to be performed by either party within a year. Ibid. 4. VENDOR'S LIEN.-Where land is sold and conveyed to a married woman, and the purchase money is not paid by her, the vendor's lien therefor will continue, and may be enforced against her by the sale of the land, but her separate note given to secure the same would be void.-Cox's Adm'r. v. Wood,. 54 5 CONTRACTS BY MARRIED WOMEN.-Semble-that a married woman, by her separate contracts, may encumber or charge her real estate, and her personal property acquired by devise, descent or gift, to the extent of the use and income arising therefrom, but no further, except for the purchase money for real estate, which becomes an equitable lien thereon. Ibid. 6. Semble, also-that the Legislature may limit the power of a femme covert over her legal fee-simple estates, for the purpose of protecting them for her benefit. Ibid. 7. Semble, also-that a femme covert can not be personally liable on her contracts, but a judgment may be rendered against her, collectable out of the monies of her separate estate; and, if none such can be found upon which to levy, a receiver may be appointed to take and apply the income, in default of her voluntarily discharging the judgment. Ibid. 8. Where money is loaned by a married woman, out of her separate estate, and a mortgage and note, to secure the payment thereof, are taken to her, and her husband, and her husband afterwards died, she may collect said money in an action in her own name, setting out the facts in her complaint, or she may collect the same as the surviving payee of the note.-Shockley v. Shockley, 108 9. WITNESS.-Where the husband and wife join in an action for the recovery of the separate property of the wife, both the wife and the defendant are competent witnesses in the cause.-Gee v. Lewis, 149 10. PARTIES.-In actions to recover the separate property of the wife, she may sue alone. Ibid. 11. WITNESS-HUSBAND AND WIFE.-Where real estate is procured to be conveyed to a married woman, and the conveyance is alleged to have been made for the purpose of defrauding creditors, and without consideration, and suit is instituted against the grantee and her husband to set aside the conveyance, the wife is a competent witness in her own behalf to prove any material fact in the cause, other than communications made to her by her husband during the marriage, the real estate, by reason of the conveyance, having become her separate property as fully as if she were unmarried; but the husband, in such case, having no such direct interest in the property as would entitle him to testify in his own behalf, is not a competent witness for or against his wife.-Caldwell v. Henderson, 298 15. EVIDENCE. Where a married woman becomes the purchaser of real estate, but takes title, in the first instance, by bond to her husband, and, after the payment of the purchase money, takes a deed in her own name, and the property is alleged to be her husband's, and is attempted to be subjected to the payment of his debts, it is competent for her to give in evidence all the circumstances attending, and the reason for the taking of the bond in her husband's name, for the purpose of removing any inference which might arise therefrom prejudicial to her rights.-Howe v. Yopst, 409 MECHANIC'S LIEN. 1. EVIDENCE-DESCRIPTION.-A decree for the enforcement of a mechanic's lien, in which the property is described as "one acre, more or less, lying north of, and adjoining the north-west corner of Sixby's addition to the village of Van Buren, in the county of Lagrange, State of Indiana," is void for uncertainty, and is not competent evidence to sustain a Sheriff's deed, made in pursuance of an order of sale issued upon such decree.-Munger v. Green, 38 2. PAROL EVIDENCE.-It is not competent in such cases, by parol evidence, to correct a radical defect in the description of property directed by such decree to be sold, or to identify it with that claimed by the purchaser under a sheriff's deed; and where the notice of lien filed by the mechanic describes the property as above set forth, and adds that it is the same land "conveyed to said G by one E. B.," said last named deed will not be competent as evidence to sustain such decree, for such decree must itself contain an intelligible description of the property. Ibid. 3. CONSTITUTIONAL LAW.-Article 36 of the code, on the subject of mechanics' liens, (2 G. & H 298), is not unconstitutional by reason of any defect in the title of the act of which it is a part, but may be construed as merely providing a remedy for the collection of a debt.-Hall v. Bunte, 304 MAJOR OF VOLUNTEERS. 1. VACATION OF OFFICE.-The acceptance of the office of Major of Volunteers in the military service of the United States, by the incumbent of the office of Auditor of a county, vacates the latter office. Merringer v. The State, &c., MORTGAGE. 103 See DURESS, 1. 1. NOTICE OF VENDOR'S LIEN.-The recital in a deed that a part of the purchase money is unpaid, and that it is evidenced by certain notes, and that a lien therefor is retained, constitutes sufficient notice to a subsequent purchaser of the vendor's lien, although the purchaser had no actual notice of such stipulations in the former deed.-Wiseman v. Hutchinson, 40 2. Where a subsequent purchaser might learn the existence of a vendor's lien by examining the title deeds which constitute necessary links in the chain of his own title, he will be chargeable with notice of the existence of such lien, although he may not have actually examined those deeds, and they may not have been recorded. Ibid. 3. RETURN OF ORDER OF SALE.-Where a mortgage has been fore: closed, and a judgment replevied, and the period of the stay having expired, and order of sale duly issued on the decree, the return of that order of sale by the direction of the plaintiff, without the disposition of the property therein described, can not operate as a discharge of the lien authorized by the mortgage, nor affect the rights of replevin-bail.-Nunemacher v. Ingle, 135 4. MORTGAGE DELIVERY OF.-B executed a mortgage of real estate to C, in his absence from the State and without his knowledge, and caused the same to be recorded in the proper office, and afterwards, before the mortgagee had accepted and received the mortgage, either in person or by agent, D recovered a lien upon the mortgagor's title in the mortgaged property. Held, That such lien is entitled to the preference over the mortgage. -Woodbury v. Fisher, 387 5. A mortgage must not only be delivered to, but must be accepted by, the mortgagee, or the title will not pass, and, to make a good delivery, it would seem that the mortgage must pass under the power of the mortgagee, or some person for his use, with the consent of the mortgagor. Ibid. 6. PARTIES. The assignment of a note secured by mortgage carries the security with it, and it is not, in an action to foreclose the mortgage, necessary to make the assignor of the note a party.-Gower v. Howe, 396 |