The opinion of the court was delivered by
Kellogg, J.This was an action of trespass de bonis asportatis, and was tried by jury upon the general issue.
The plea of the defendant put the plaintiff upon the proof of his declaration, the material allegations of which were, that the rails in question were the propety of the plaintiff, and that the defendant took and carried them away. The testimony clearly tended to prove these allegations, and, if believed, and in the absence of any exculpatory proof, would entitle the plaintiff to a verdict. Any unlawful taking of, or intermeddling with, the property, by the defendant, was a trespass and would subject him to this action. If the defendant relied upon any matter of justification, he should have pleaded it; and not having done so, he could not give it in evidence. It is a well settled rule, that parties must be confined in their proof to the issue they have made. Under that issue the defendant could not give evidence of any matter of justification. But the case does not disclose any matter of justification. It is true, the case shows, that the defendant was in the occupation of the land, when the rails were laid by the plaintiff for the purpose of putting them into a fence; but it does not show in what capacity he was occupying, or that the rails were imlawfully placed upon the land, or that they were the occasion of injury to the land, and that the defendant re*187moved them to prevent sueh injury, or by the license of the plaintiff. And if such facts did appear, they would not be within the issue. If the party relied upon such a defence, he should have pleaded it, or it could not avail him. The court, then, might well instruct the jury, that, if they believed the testimony, the plaintiff was entitled to a verdict. There was no error in the charge, and the judgment of the county court is affirmed.