¶1A reference to a few facts will be sufficient to dispose of this case. Lewis H. Harmon made a parol lease of certain premises to one William Nestle for one year from January, 1876, and in the course of the fall Nestle sowed several acres to wheat. In the winter following and after the expiration of the year, Nestle removed from the premises *403and Harmon took possession. In January, 1877, Nestle executed a chattel mortgage on the wheat to one Lamb, to indemnify him for being surety in a replevin bond given in a case brought by Nestle against Harmon. The replevin suit was decided against Nestle, and Harmon sued on the bond, and having recovered judgment the plaintiff [Estey] satisfied it. Harmon gave defendant [Smith] a bill, of sale of the wheat and the latter cut it and applied it to his own use. About a 3rear later and in August, 1879, .Nestle assigned his right to Estey and he sued Smith in trespass for the cutting and carrying away of the wheat. The defendant pleaded the statutory general issue, and under the rulings of the circuit judge, the jury returned a verdict for the defendant.
¶2In the course of his defense Smith gave evidence that Lamb agreed with him before harvest that he should have the benefit and protection of his mortgage on condition of seeing Lamb kept harmless on the bond, and that with such agreement and understanding Lamb turned over his interest in the mortgage by verbal agreement to defendant. Having made this proof Smith offered the mortgage in evidence. The plaintiff’s counsel objected that it was inadmissible under the pleadings, but the court admitted it. It is now urged that this was matter of justification or excuse and was hence incompetent under the general, issue in the absence of a special notice.
¶3"We think the tendency of the proof was more radical than the objection assumes. The gist of the declaration is that it was Nestle’s wheat that was taken and carried away and the plea puts every part of it in issue. It not only involves a denial 'of the taking, but a denial of the taking of wheat belonging to Nestle, and hence a denial of the ownership of Nestle at the time of the alleged trespass is in issue. Such is the rule at common law where the action is brought by the party supposed to have been injured. Stephens’ Plead. 174; 6 Robinson’s Pr. 649; Bartholomew v. Ireland Andr. 108 : Dodd v. Kyffin 7 Term 350; Argent v. Durrant 8 Term 403; Whittington v. Boxall 5 Ad. & El. (N. S.) 143; Kav*404anagh v. Gudge 7 Man. & Gr. 320. And there is no reason for an exception where the suit is by an assignee.
¶4The proof in question we think bore on Nestle’s title to the wheat and somewhat also on the fact of his possession. Moreover it tended to throw some light on the controverted question whether Nestle did not abandon the wheat to Harrnon.
¶5A charge was requested that if the defendant intended, when he took possession of the wheat, to go on and dispose of it in defiance of the mortgage and in defiance of its provisions and in defiance of any rights which the mortgagor had in the property and without any regard then to the mortgage or its conditions, the verdict must be for the plaintiff. The refusal of this request was not error. It purposed to make the case turn on the way in which the defendant’s thoughts were occupied, and independently of the considertion of ownership. If his conduct was not in itself actionable, it could not be made so by any particular mental attitude towards the property. The unexpressed operations of his mind did not amount to a trespass.
¶6Nothing further is urged against the judgment and it must be affirmed with costs.