fair value of the interest she released to the children of her deceased husband, and which she alleges was worth $3,000? We are of opinion that this question must be answered in the affirmative.

It is well settled by the authorities in this state that, when a contract is void by the statute of frauds, as where an attempt has been made to sell or exchange property and the purchase price has been paid in whole or in part, either in money or other property or services, and the vendor or person occupying that position has failed to convey or deliver the property as agreed by him, an implied promise is raised that he will return what he has received, or the value thereof in money, as being held by him on a consideration that has failed. Jarboe v. Severin, supra; Wallace v. Long, 105 Ind. 522, 5 N. E. Rep. 666; Taggart v. Tevanny, 1 Ind. App. 339, 27 N. E. Rep. 511.

By the demurrer it is admitted that the heirs of the appellee's decedent have received property of the value of $3,000, which, under the law, did not belong to them, but to the appellant. It is further admitted that the consideration for this transfer to them was the conveyance to the appellant of a tract of land of 80 acres by their father and the appellant, which both he and they have failed to make. To say that under such circumstances the appellant cannot recover back the value of the property transferred would be a denial of justice and equity in any case, and that the appellant should be denied this right of recovery, because at the time of the conveyance she was a married woman, would be making her coverture an instrument of oppression instead of protection. We do not think the facts warrant such a result. The demurrer should have been overruled. Judgment reversed.

HEATON et al. v. PETERSON.1 (Appellate Court of Indiana. Oct. 13, 1892.) SUMMONS-AMENDMENT OF RETURN-VACATING JUDGMENT BY DEFAULT-GROUNDS.

1. An amendment to the return of a summons speaks from the date of the return.

2. Where an affidavit on a motion to set aside a judgment by default alleges that the return to the summons was not signed by the sheriff, but the transcript shows the presence of the sheriff's signature at the time of the default, a presumption will arise, in the absence of clear proof to the contrary, that an amendment was lawfully made, so as to have the return declare the truth.

3. The fact that a defendant relies on an attorney employed by his codefendant, but who fails to appear on account of sickness, is not a sutacient ground for setting aside a judgment by default, especially when the firm of which the attorney is a member appears of record as attorneys for defendant, and no reason is assigned why the partner did not conduct the defense.

Appeal from circuit court, Boone county; STEPHEN NEAL, Judge.

Action by Alvina C. Peterson against John Heaton and Charles Peterson on an injunction bond. Judgment against defendants by default. Defendants appeal from an order overruling their motion to 1Rehearing pending.

set aside the default and vacate the judgment. Affirmed.

Hammond & Rogers, for appellants. P. H. Dutch and R. W. Harrison, for ap. pellee.

NEW, J. The appellee sued the appellants in the circuit court upon an injunction bond, executed by Peterson as principal and Heaton as surety. It is shown by the averments in the complaint that, in 1890, Peterson brought an action against the appellee to recover the possession of certain personal property, and, upon executing the bond now sued on, obtained a restraining order preventing the appellee from disposing of the property during the pendency of said cause. It is further alleged in appellee's complaint that it was found and adjudged in said action that she was the owner and entitled to the possession of the property; that she was compelled to employ counsel, and was subjected to great inconvenience, expense, and loss of time in said action, and to procure the dissolution of said restraining order; that the restraining order was wrongful, and prevented her from disposing of the property; and that she was damaged thereby in the sum of $500. A copy of the bond is filed with the complaint. It is in the usual form, providing that the plaintiff shall pay to the defendant all damages which may accrue to her by reason thereof. It is shown by the record that both of the appellants were served with summons by reading,-Peterson, by the sheriff of Marion county, on the 8th day of January, 1891; and Heaton by the sheriff of Boone county, on the 7th day of the same month. The process in each instance required an appearance in the circuit court to answer the complaint of the appellee on the 20th day of said month, which was on the fourteenth day of the term. Afterwards, on the sixteenth day of the term, the appellants, on the motion of the appellee, were ruled to answer. On the 28th day of Janu ary, 1891, which was the twenty-first day of the term, the appellants, having failed to comply with the rule to answer, were called, and defaulted. On the motion of the appellee, the cause was submitted to the court for trial and judgment without the intervention of a jury. The court, after hearing the evidence, found for the appellee, and assessed her damages at the sum of $75. Judgment was given the appellee for that amount. Afterwards, at the same term, Heaton, the surety, filed his verified motion, supported by affidavit, to set aside the default and vacate the judgment. The motion was overruled by the court, and this is assigned as error.

The verified motion of Heaton, the caption, signature, and jurat omitted, is, in substance, as follows: That judgment was taken against him (Peterson) by default for $75. That as against Heaton the court did not have jurisdiction to render the judgment, inasmuch as there was no proof of any service of the summons or process on him in the files of the court, or in or as a part of the record in this cause, except such proof as the following words and figures afford: "Come to hand January 7,

1891. Served as commanded, by reading | to and within the hearing of the withinnamed defendant, John Heaton, January 8, 1891, "-which words and figures, although on the back of a summons issued by the clerk of said court to the sheriff thereof, commanding him to summon him, the said Heaton, to appear in said court on the 20th of January, 1891, to answer the complaint of Alvina C. Peterson against said Heaton and Charles Peterson, were not such words and figures as could constitute a return of said summons by said sheriff that would give said court Jurisdiction of him; and the judgment thereon rendered against him was void, at least until said words and figures had been or were so amended or corrected by said sheriff as to show and afford proof that it was into his hands, or that of some deputy of his, that said writ had come, and by him or some deputy of his had been served, and no such correction or amendment was or ever had been made. That said default and judgment were taken against him through his surprise and excusable neglect, in this: that on the 20th day of January he was informed by his codefendant Peterson that he had employed Edwin S. G. Rogers, the same attorney who had appeared for Peterson in the replevin action, to defend this cause for both of them, and that, as he is informed and believes, said Rogers was unable to attend to legal business by reason of sickness which confined him at home from the 20th to the 28th day of January, 1891, and for that reason failed and neglected during that time to give attention to said cause. That he did not know of such failure on the part of said Rogers until after the 28th of January, 1891. That he at all times before said date believed, in good faith, that this cause was being so conducted as to insure to all parties a fair trial. That he has a valid and meritorious defense, in this: that it fully and distinctly appears in the plaintiff's complaint that the injunction bond upon which she sues was executed in order to obtain a restraining order upon her as defendant in an action then pending against her by Charles Peterson for the possession of certain personal property, and to prevent her from disposing of the same until the final hearing of said cause. That he can fully establish by proper proof that the principal purpose of said action was to adjudicate a question of title between said Charles Peterson and Alvina C. Peterson in said personal property, and that the restraining order was but ancillary to that purpose. That no motion was ever made or argued for the dissolution of said restraining order. Said cause was tried upon its merits, and decided in favor of said Alvina C. Peterson, and the restraining order dissolved by virtue of the judgment rendered in the main controversy. That any liability for attorney's fees incurred by said Alvina C. Peterson was in the main action, and that no loss or damage whatever accrued to her because of said restraining order. In support of the motion, the affidavit of the attorney Rogers was filed. It is as follows, in substance:

That he is the attorney mentioned in the motion to set aside the default, and resides in Indianapolis; that the statements contained in said motion touching his employment as attorney and sickness are true; that his sickness during the time mentioned was the cause of any failure or neglect on his part to give attention to said cause; that he was disabled by said sickness, and in good faith rested in the belief that the cause was of such a character, and so recently instituted, that the attorney for the plaintiff would, on account of affiant's nonresidence in Boone county, show to him the professional courtesy of taking a rule to answer at such time and on such notification as would permit him to go to Lebanon, or procure some one else to go, in time to discharge such rule; and that resting in such belief, and without having or receiving any notification of any rule to answer, or any knowledge or suspicion that any rule to answer had been taken, he allowed the matter of his employment to go unattended to, without the knowledge of the defendants or any one else who might or could have given it attention, until the default had been taken and judgment rendered thereon. A counter affidavit was filed by the appellee, in which she states, among other things, that on the 7th of January, 1891, she filed in the office of the clerk of Boone county her complaint in this cause, and directed that a summons be issued to Charles Peterson to the sheriff of Marion county, Ind., and for John Heaton to the sheriff of Boone county, Ind., the latter being made returnable on the 20th of the same month; that said summons was duly and legally served by reading to and within the hearing of said Heaton on the 8th day of January, 1891. Said summons, and the return thereon, are set out in the affidavit. The return is as follows: "Come to hand January 7, 1891. Served as commanded, by reading to and within the hearing of the withinnamed John Heaton, January 8, 1891. JOHN S. MILLER, Sheriff B. C." It is further stated in this affidavit that afterwards, by the written order and direction of the defendants' attorneys, Hammond & Rogers, by Rogers of said firm, the clerk of said court entered the appearance of said Hammond & Rogers as attorneys for said defendant; that said Hammond is the partner of said Rogers, and no excuse is shown why said Hammond did not appear and attend to said cause. The appellee in her affidavit further says that she is informed and believes that on the day said default was entered the defendant Peterson caused his attorney to prepare an affidavit for a change of venue from Boone county, and on the following day said affidavit was received by the clerk of said court.

Upon the showing made to the court, we cannot say it was established that the court had not acquired jurisdiction of the person of Heaton at the time the default and judgment were entered. The service and return of the summons directed to be served on Heaton, as given in the affidavit of the appellee, and as copied by the clerk into the transcript of the proceed

ings in the cause, give no indication of the absence of the sheriff's signature at the time the defendants were defaulted. The evidence which the transcript affords cannot be wholly disregarded. It will be observed, too, that Heaton does not swear that he was not in fact served with summons. He makes no attack upon the process, except to assert that the return indorsed thereon was not signed by the sheriff or his deputy when the default was taken. If at that time the return was not signed, but was afterwards amended by receiving the signature of the sheriff, the presumption will be indulged, in the absence of a clear showing to the contrary, that the amendment was lawfully made to the end that the return should declare the truth. An amendment by a sheriff to his return speaks from the date of the return amended, and is the act of the officer as of that date. The return is not the service, but only the evidence of it. Relative to the amendment of returns, see Jackson v. Railroad Co., 15 Ind. 192; Railroad Co. v. Lawrence, 29 Ind. 622; Dwiggins v. Cook, 71 Ind. 579; Turner v. Bank, 78 Ind. 19; Dunn v. Rodgers, 43 Ill. 260; Kitchen v. Reinsky, 42 Mo. 427; State v. Gibson, 29 Iowa, 295.

We do not think that Heaton has shown that he is entitled to relief from the judg. ment taken against him on the ground of excusable neglect. The negligence of the attorney is the negligence of the client. If it can be said that Heaton was excusable from the employment of counsel because of what Peterson had said to him about engaging the services of Rogers, it follows that he will be bound by the neglect of the latter. It is made to appear by the affidavit of the appellee that Rogers had a

partner in the practice of law at that time, and the showing made the clerk by Heaton gives no reason why Hammond, the partner of Rogers, did not look after the case. It is not fairly inferable from the affidavit of Rogers that he was too sick to communicate with Hammond. So far as we can know from the record, he made no effort to communicate with him, or either of the appellants. That he was relying largely upon the professional courtesy of the appellee's counsel he admits. Moreover, we do not think he was excused from giving something of his own personal attention to the case. The mere employment of an attorney, even if it had been by Heaton himself in person, would not relieve him of further responsibility about the case. He was a resident of Boone county, and if he had been on the alert, giving attention to the preparation of his defense, he could have learned the situation and avoided the default. If he was served with summons on the 8th of January,-and he does not deny that he was, he had until the 28th day of that month, the day on which the default was taken, to learn that Rogers and Hammond were not in attendance upon court, and were not giving the case attention. Kreite v. Kreite, 93 Ind. 583. We need not inquire whether there is merit in the defense suggested by Heaton's motion, for a meritorious defense will avail nothing if a reasonable excuse be not given for suffering the default. What we have said disposes of the errors assigned except as to the sufficiency of the complaint, which is not challenged in brief of counsel.

The judgment is affirmed, with costs.

BLACK, J., takes no part in this opinion.

Abandonment.

Of easements, see "Easements," 8-10.

ABATEMENT AND REVIVAL.
Pleading, see "Justices of the Peace," 3.
Another action pending.

1. A mortgage provided that any surplus
from a sale of the mortgaged property should
be payable to the mortgagor or his assigns. A
subsequent deed of the property provided that
it should be void if the mortgagor should pay the
grantees named sums of money during his life-
time. The mortgagor having died without mak-
ing such payments, the grantees in the deed
brought an action at law against the mortgagee
to recover the proceeds of the property not ap-
propriated to the satisfaction of the mortgage.
Held, that the pendency of a bill in equity by the
mortgagee, praying that said grantees and the ex-
ecutor and beneficiaries under the mortgagor's
will be compelled to interplead and have their
rights determined, is not a bar to such action at
law. -Mattel v. Conant, (Mass.) 31 N. E. 487.

How objection raised.

2. The pendency of another action must be
pleaded in abatement, and not in bar.-Mattel v.
Conant, (Mass.) 31 N. E. 487.

Information.

ABORTION.

For price, see "Sale," 17.
Joinder of, see "Jury," 7.

Maintenance by taxpayer, see "Towns," 2, 8.
On appeal bond, see "Appeal," 90-92.
On bond, see "Bonds."

On contracts, see "Contracts," 18-21.
On injunction bond, see "Injunction," 16-18.
On insurance policies, see "Insurance," 31-36.
On mutual benefit certificates, see "Insurance,"
42-44.

On notes, see "Negotiable Instruments," 15-24.
Particular forms, see "Assumpsit;" "Deceit;
"Ejectment:" "Quieting Title:" "Replevin;"
"Trespass;" "Trover and Conversion.'

To set aside conveyance, see "Fraudulent Con-
veyances," 6-9.

Legal or equitable cause of action.

1. A complaint alleging on its face merely a
contract and a breach, followed by a claim for
damages only; a defense showing that defend-
ant understood the action to be for recovery of
damages and a breach of contract; a trial at
which specific performance was never invoked,
nor any such question determined; and findings
following the lines of a legal cause of action,-
constitute a legal action, and not a suit in equity
thews v. Matthews, (N. Y. App.) 31 N. E. 519.
for specific performance of the contract.-Mat-
Joinder of causes.

2. A complaint was in two paragraphs.
The first charged that defendants fraudulently
appropriated plaintiff's money and property to
the purchase of certain land, and asked judg-

so purchased; the second asked judgment for
the money so appropriated. Held, that the over-
ruling of a demurrer to such complaint on the
ground of misjoinder of causes of action was
harmless error.-File v. Springel, (Ind. Sup.) 31

Accident Insurance.

See "Insurance," 37.

Accord and Satisfaction.
See "Payment;" "Release and Discharge."

Accounting.

Between partners, see "Partnership," 3, 4.
By guardian, see "Guardian and Ward," 2, 3.
By trustee, see "Trusts," 9.

Accretion.

Within city limits, see "Taxation," 2

ACTION.

See, also. "Abatement and Revival;" "Limita-
tion of Actions;" "Parties;" "Pleading;"
"Practice in Civil Cases;" "Trial."
Against assignee, see "Assignment for Benefit
of Creditors," 4.

By and against administrator, see "Executors
and Administrators," 17, 18.

By husband and wife, see "Husband and Wife,"
10.

v.31N.E.-72

N. E. 1054.

titles him to an injunction against the unlawful
3. One having a cause of action which en-
maintenance and operation of a steam railroad
in a highway because of its continuous interfer-
ence with his rights of property may unite with
the demand for equitable relief by injunction,
and for damages for such interference, a claim
for damages for a personal injury suffered
while driving along the highway in consequence
of his horses being frightened by the noise of a
passing engine and train, and escaping beyond
his control, since both claims arise from the same
wrong, the unlawful obstruction of the high-
way by the railroad company, and are there-
fore "transactions connected with the same sub-
ject of action," within Code Civil Proc. § 484,
subd. 9, permitting joinder of causes of action in
such cases. 17 N. Y. S. 328, reversed.-Lam-
ming v. Galusha, (N. Y. App.) 31 N. E. 1024.

4. Mandamus proceedings instituted by the
legislative printer for the payment of the print-
ing done at the first session of the legislature,
to which his contract relates, is not such a split-
ting up of his demand as will prevent him from
enforcing payment for work done at the second
session under the same contract.-Parmenter v.
State, (N. Y. App.) 31 N. E. 1035.
Consolidation of suits.

5. It is not an abuse of judicial discretion
to consolidate two actions,-one to recover for
services, and the other for breach of contract of
sale.-Grant v. Davis, (Ind. App.) 31 N. E. 587.