
    Robert Large vs. John Dennis.
    1. Evidence. As to the execution of a deed. Practice. Possession. In an action for damages for overflowing the plaintiffs land with water, where the plaintiff was in possession; the plaintiff produced a title deed to the land, in evidence, the reading of which was objected to because the acknowledgment of said deed for registration was made since the issuance of the warrant, though the deed bore date anterior to the issuance of the warrant; and it is held, that the reading of said deed in evidence, was not erroneous: first, because the record did not show that said deed did not have effect as a common law instrument, before the warrant was issued; and second, because the plaintiff being in possession of the land, no deraignment of title in such case was necessary.
    
      2. Practice and Pleading. Venue. Evidence. It is not necessary that a warrant issued by a justice of the peace for an injury to the plaintiff’s land, should show that the land lies in the county; it is sufficient if that fact be shown in the evidence.
    3. Same. Proceedings before justice of the peace. It is no objection to a warrant issued by a justice of the peace for damages to the plaintiff’s land, that it is in form for a trespass vi et armis, when it should have been in case, for a consequential injury. The form of the warrant is immaterial; the justice must decide upon the evidence.
    4. Oases Oited. Harris vs. Miller, Meigs’ R., 158; Bodenhamer vs. Bodenhamer, 6 Humph., 264.
    PROM COCKE.
    This was an action of trespass commenced before a justice of the peace of Cocke county, ’ for damages to the plaintiff’s land by overflowing it with water. The judgment of the justice was for the defendant, from which the plaintiff appealed to the Circuit Court. At the December Term, 1857, before Judge Turley, verdict and judgment were for the plaintiff. The defendant appealed in error.
    T. D. & K. ArNold and Wilson Duggan, for the plaintiff in error.
    A. J. Eletoher and J. P. Swann, for the defendant in error.
   Wright, J.,

delivered the opinion of the Court.

There is no error in this judgment. The first objection to it made by the plaintiff in error, is to the reading of the deed from A. P. Sbnlts to Dennis, the defendant, because it was acknowledged before the clerk of the County Court, after the issuance of the warrant; and it is said did not, in law, take effect before its acknowledgment. This objection is untenable, for two reasons: first, because the- deed bore, date long before the issuance of the warrant, and for aught that appears in the record, may have been proved as a common law instrument, to have been executed at its date. If so, it took effect then. The record does not negative this, or show that the acknowledgment was the only proof, and the Circuit Judge cannot be put in error unless this were shown. Secondly, because the plaintiff below was in the actual possession of the land injured, and as the ease stood, did not need any deraignment of title.

The next error assigned is, that the warrant did not show that the land injured by the act of the plaintiff in error lay in Cocke county. This was not necessary. .The proof showed it; and that was sufficient. Bodenhamer vs. Bodenhamer, 6 Humph., 264.

It is next said the warrant is in form, trespass vi et armis, when it should be in case for consequential damages. This is untenable by the same authority. 6 Humph., 264. The form of the warrant is nothing. The justice must decide on the evidence. Besides, some of the proof shows a direct injury.

The charge of the Circuit Judge is next objected to; but we can see no error in it. In relation to the license claimed, to overflow the plaintiff’s land, it followed the case of Harris vs. Miller, Meigs’ Rep., 158. And in all other respects seems free of objection.

Affirm the judgment.  