Noah v. Angle. pellants' motion for judgment, in their favor, on the special verdict of the jury. Opinion filed at May term, 1878. Petition for a rehearing overruled at November term, 1878. NOAH V. ANGLE. PRACTICE.-Striking out Pleading.-Harmless Error.-Error in striking out a paragraph of a pleading is harmless, where the facts therein alleged are admissible in evidence under a remaining paragraph. EVIDENCE.-Damages.-Opinion of Witness.- Watercourse.-The damages to be recovered for an alleged wrongful obstruction of a watercourse forming the line between the lands of the parties can not be estimated by the mere opinion of a witness. SAME.-Time.-Evidence of Previous Tort.-Where, in such case, the tort is alleged by the complaint to have been committed on a particular day, evidence of similar torts, previously committed, is inadmissible. SAME. Costs not Exceeding Damages.-Form of Motion.-Practice. - The verdict in such case assessed the plaintiff's damages at one dollar, whereupon the defendant moved the court “for a judgment for all the costs in the case, except the sum of one dollar, against the plaintiff." Held, that the motion was properly overruled. Held, also, that the proper motion in such case is, "that the plaintiff recover no more costs than damages," etc. From the Franklin Circuit Court. H. Berry and Berry, for appellant. BIDDLE, J.-Complaint by the appellee against the appellant, alleging the obstruction of a watercourse which forms the line between the lands of the parties. Answer, general denial and two special paragraphs. On motion of appellee, the court struck out the second paragraph. Exceptions. Trial by jury; verdict for appellee, one dollar. Noah v. Angle. Over a motion for a new trial, and exceptions, the court rendered judgment on the verdict, and, over a motion to tax all the costs over one dollar to the appellee, rendered a judgment for full costs in his favor. Exceptions. The following questions are presented by the record and discussed by the appellant. 1. Did the court err in striking out the second paragraph of answer? We need not examine this question very carefully. The third paragraph of answer, upon which the appellee took issue; was the same, in effect, as the second. The appellant had all the benefit of the matter alleged in the second paragraph by the issue formed upon the third. He can not therefore complain. 2. At the trial the appellee asked James Johnson, a competent witness, the following question: "State what amount of damage, if any, in your opinion, the plaintiff has sustained on account of this washing, occasioned by this obstruction." Over an objection and exception, the court allowed the witness to answer the question, as follows: "I should state the damage at twenty-five dollars." This is erroneous. The damages should not have been estimated by the opinion of the witness, but by the jury from the facts proved. The Evansville, Indianapolis and Cleveland Straight Line R. R. Co. v. Fitzpatrick, 10 Ind. 120; Sinclair v. Roush, 14 Ind. 450; Mitchell v. Allison, 29 Ind. 43; The City of Logansport v. McMillen, 49 Ind. 493. 3. The injury complained of, and the time it was committed, are averred in the complaint in the following words: "That said defendant, with force and arms, on the 1st day of May, 1876, entered upon said lands, and erected fences and walls, and threw and put into said creek brush, stones, lumber and other materials, upon the lands of said plaintiff," etc. Noah v. Angle. Under this averment, and over the objections of the appellant, the court allowed evidence to go to the jury tending to prove similar injuries done at different times. before the 1st day of May, 1876. day of May, 1876. Was this ruling correct? As a general rule, when the injury complained of consists of a single act, committed at one time, the time at which it is alleged in the complaint to have been done is not material, when it is within the statute of limitations; but when the injury complained of consists of a series of acts, done from time to time, continued and maintained through a given period, the time may become material, and the party, in such case, will be confined in his proof within the limits of his allegations; as when trespass to lands is laid with a continuando. Time may also become material in identifying an act, and as the means of limiting the damages caused by the act alleged. According to the case of Kortz v. The City of Lafayette, 23 Ind. 382, we think the court erred in admitting evidence tending to prove injuries done before the 1st day of May, 1876. 4. The court also refused to give an instruction to the jury limiting the damages to acts done upon and after the 1st day of May, 1876, up to the commencement of this suit. Upon the same principle, this ruling was also erro neous. 5. At the proper time, the appellant moved the court "for a judgment for all the costs in the case, except the sum of one dollar, against the plaintiff." This motion was properly overruled. The motion should have been, that the plaintiff recover no more costs than damages, namely, one dollar. This is what the statute says. 2 R. S. 1876, p. 195, sec. 398. Such a motion, as the title to real estate did not come in question by the evidence, should have been sustained. The State, ex rel. Share et al., v. Boyd et al. Willman v. Clouser, 16 Ind. 318; Holmes v. Wright, 36 Ind. 383; Floyd v. Miller, 61 Ind. 224. The judgment is reversed, at the costs of the appellee, and the cause remanded, with directions to sustain the motion for a new trial, and for further proceedings. THE STATE, EX REL. SHARE et al., v. Boyd et al. SHERIFF.-Action on Sheriff's Bond, for Failure to Advertise and Sell.— Defence.-Attorney.-In an action by an execution plaintiff, against a sheriff and his sureties, upon the sheriff's bond, for a failure of the sheriff to advertise and sell the property of the execution debtor, an answer, that the sheriff's failure to advertise and sell was pursuant to the direction of the plaintiff's attorney, is sufficient. SAME.-Exemption from Execution.—Pleading.—Exhibit. The defendants in such action answered, that, when about to make a levy, the debtor, who was a resident householder of the State, had demanded three hundred dollars worth of property as exempt from execution, and presented his verified schedule of his property, and that an appraisement thereof showed it to be of a less value than three hundred dollars. Held, on demurrer, that the answer is sufficient. Held, also, that copies of such schedule and appraisement could not be made part of such answer by attaching them thereto. From the Fountain Circuit Court. L. Nebeker and S. M. Cambern, for appellants. NIBLACK, J.-This was an action by the State, on the relation of George K. Share and George J. Latchworth, against George W. Boyd, James R. Ratcliff, Prier Cates, William Younts and Samuel F. Wood, on a sheriff's bond executed by the said Boyd as principal, and by the other defendants as his sureties. The complaint was in two paragraphs. The first alleged a recovery of a judgment in the common pleas court of Fountain county, by the relators, The State, ex rel. Share et al., v. Boyd et al. against one William Kreausch, the issuing of an execution on said judgment, and the delivery of such execution to the said Boyd, as sheriff of said county of Fountain, the levy by the said Boyd upon property of the said Kreausch, and the neglect and failure of the said Boyd to advertise and sell such property, or to otherwise make the money due on said execution. The second paragraph alleged the recovery of a judgment, the issuing of an execution and placing it in the hands of the said Boyd, as sheriff, as set out in the first paragraph; that, at the time said execution came into the hands of the said Boyd, the said Kreausch was the owner of real and personal property of the value of six hundred dollars, but that the said Boyd failed to make a levy of said execution upon the property of the said Kreausch, and returned such execution unsatisfied. The defendants answered in four paragraphs, but, as the fourth paragraph was held bad upon demurrer, we need not further notice it here. The first paragraph was in general denial. The second paragraph admitted the recovery of a judgment by the relators against Kreausch, the issuing of an execution upon said judgment, the placing of said execution. in the hands of said Boyd, and the levy by the said Boyd on the property of Kreausch, and averred that said Boyd was proceeding to advertise and offer said property for sale, but was prevented from so advertising and offering said property by the relators' attorney, who ordered and directed the said Boyd not to advertise and offer said property for sale until further otherwise ordered. Wherefore it was by reason of the order of the relators' attorney, that said property was not advertised and sold. The third paragraph also admitted the recovery of a judgment by the relators against Kreausch, the issuing of |