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20 Ind. 326

Hoot v. Spade

Indiana Supreme Court

Decided May 15, 1863

Indiana Supreme Court · decided 1863-05-15

<p>Damages — Vendors and Purchasers. — Where there is a failure of title to 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 of the whole land which such part bears to the whole tract of land.</p> <p>Amendment — Practice.—After the jury has been sworn and a part of the evidence heard, it is too late for cither party to amend, by adding a new eause of action, or defence, to be examined and disposed of in the pending trial.</p> <p>Practice — Jury.—Where the issues are altered after the jury is sworn, the jury must be re-sworn before hearing the cause.</p>

Relies on Phillips v. Reichert · Miles v. Vanhorn · Kerschbaugher v. Slusser

Good law ✅— No negative treatment on recordhow we know

Decided 1863-05-15

How this case has been cited

Cited by 12 later decisions — most recently October 1924

12 state decisions

601863187018801890190019101920decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Per Curiam.

¶1Suit to foreclose a mortgage. Judgment for the defendant.

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

¶2The following established legal propositions dispose of the' questions arising in the cause.

¶31. 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.

¶42. 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.

¶53. 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.

¶6The judgment is reversed, with costs. Cause remanded, with leave to amend, &c.

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