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 not, the court erred in refusing to give the instruction to the jury asked for.

*419As it regards the instruction given to the jury, which goes to establish the position, that where it apjDears, 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.