
    WHEELER v. MOORE.
    Error — cause of action — trespass threatened cannot be considered as committed.
    The matters in dispute in general must be adjudged as they stood at the commencement of the suit, though threatened before.
    Mere words do not constitute a trespass, and where it appear that under a possible state of fact the defendant would have committed a trespass, the jury have no right to find the trespass committed.
    Error to the Common Pleas. Moore brought trespass against Wheeler for entering his field and cutting and conveying away his grain. On trial, upon not guilty, it was proven that Wheeler was owner of the fee of the land, and in. possession. Both him and Moore claimed a right in the growing crop of wheat. Moore called on Wheeler and demanded the privilege of entering the close to take away the grain, which Wheeler refused, because he claimed the grain as his own, and without other act being done, Moore sued Wheeler. On this proof, Wheeler asked the Court of Common Pleas to instruct the jury, that if there was no evidence that Wheeler had entered the field, or cut and conveyed away the wheat before the suit was brought, the plaintiff could not recover. This instruction the court refused to give; but instructed the jury, that if Wheeler refused Moore permission to cut the grain before the suit, and they should be of opinion the plaintiff had a right to the grain, that it was fit to cut, and that he would not have been permitted to cut it without force, the refusal to permit him to harvest it was sufficient to sustain the suit, though Wheeler did not himself cut the wheat until after the suit was brought. The refusal and charge were both excepted to, and a verdict and judgment rendered for the plaintiff.
    
      C. Pease, for the plaintiff in error,
    cited 9 John. R. 61,113; 6 East R. 602.
    Crowell, for the defendant.
   Wright, J.

The rights of the parties in the court below, should have been determined in the suit, as they'stood when it was commenced. Words without acts cannot make a trespass. All that Wheeler did before the suit, was to refuse to give the permission Moore asked of him. The cutting the grain, if proven, after suit brought, would make no difference in the case. Moore either had a right of action when he brought suit, or he had not. If he had not, and we think he had hot, the court erred in refusing to give the instruction to the jury asked for.

As it regards the instruction given to the jury, which goes to establish the position, that where it appears, that under a possible state of things, a defendant would have committed trespass, the jury may find the trespass actually committed, probably was designed to rest upon the supposition, that in law, that is considered as done, which a party intended to do. We need only say, that this position does not accord with our understanding of the law. We think, therefore, the court below mistook the law in refusing to charge the jury as asked, and also, in charging them as it did, and reverse the judgment with costs.  