Hoot v. Spade

20 Ind. 326

• Court: Indiana Supreme Court
• Decided: May 15, 1863
• Status: Published

Opinion

Per Curiam.

Suit to foreclose a mortgage. Judgment for the defendant.

John Id. Baker and Myron Baker, for the appellants.¹

The following established legal propositions dispose of the' questions arising in the cause.

1. Where there is a failure of title to a part of a tract of land purchased and taken possession of, and there is’ not a rescission of the contract on that account, the measure of damages on eviction from such part, in the absence of special circumstances, is a sum bearing the same proportion to the price ofTFe whole that such part bears to the entire tract of land. Philips v. Reichert, 17 Ind. 120; Dodds v. Toner, 3 Ind. 427.

2. After the jury has been sworn and a part of the evidence heard, it is too late for either party to amend by adding a new cause of action or defence, to be examined in the pending trial. Miles v. Vanhorn, 17 Ind. 245; The Danville, &c. v. The State, 16 id. 456.

3. Where the issues are altered after the jury is sworn, the jury must be re-sworn before hearing the cause. Kerschbaugher v. Slusser, 12 Ind. 453.

The judgment is reversed, with costs. Cause remanded, with leave to amend, &c.