
    THOMAS SALMONS, defendant below, appellant vs. THEOPHILUS COLLINS, plaintiff below, respondent.
    In appeal from a justice in an action of trespass, the proof must establish a trespass prior to the commencement of the action before the justice, and not merely before filing the appeal.
    Appeal from a justice of the peace in an action of trespass quare clausum fregit. Plea, Not guilty.
    The action was commenced before the justice on the 15th of August, and the appeal filed in this court on the 19th of September. The trespass was proved generally, in the month of August, no witness being able to speak to the particular day.
    
      Brinckloe, for defendant
    moved a nonsuit, on the ground that the trespass was not proved to have been committed before the commencement of the action, assuming the 15th of August to be the date of the action.
    
      Layton contra,
    contended that the time of filing the appeal would be considered the commencement of the action in this court; and also, that there was satisfactory proof of the tresspass before the 15th of August, when action was commenced before the justice.
    
      Layton for plaintiff.
    
      Brinckloe for defendant.
   The Court

refused the nonsuit, but told the jury that they must regard the 15th of August as the time of commencing the action; and must be satisfied by the evidence, that the trespass was committed before that time, otherwise the defendant was entitled to a verdict.

Verdict for plaintiff below.  