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