
    Burd and others against The Commonwealth.
    
      Monday, October 23.
    If an indictment for forcible entry and detainer state merely a naked possession in the prosecutor, without stating what estate or interest he had in the premises, it is not su'fficint to authorise an award of res-
    t An indictment for forcible entry and detainer, stated, that A. was lawfully and peaceably seised of a dwelling house, and that B., the son of A., was lawfully in possession of the same; and laid the entry to have been made into the dwelling house, and the possession of the said B. It then stated, that the defendants expelled the said B. from the possession of the said house, and disseised the said A, and laid the detainer against B. only. Held, that it was error to award restitution to A.
    In Error.
    IN the Court of Quarter Sessions of Bedford county, an indictment for forcible entry and detainer, containing three counts, was found against George Burd and three other defendants.
    The first count charged the defendants with having entered into an unfinished dwelling house in the lawful and peaceable possession of Robert Woodcock, and with expelling and holding him out from the possession of the same.
    The second count stated, that Robert Woodcock was lawfully and peaceably seised of an unfinished dwelling house, and that one Joseph Woodcock, son of the said Robert Woodcock, was lawfully in possession of the same; and that the defendants entered and expelled the said Joseph Woodcock from the possession of the said dwelling house, and forcibly disseised the said Robert Woodcock of the same, and the said Joseph Woodcock, so expelled, held out, &c.
    The third count, on which the defendants were acquitted, it is unnecessary to state.
    The jury found two of the defendants guilty on the first two counts of the indictment, and the Court sentenced them to pay a fine of one dollar each and the costs of prosecution, and awarded that the property should be restored by writ of restitution to Robert Woodcock.
    
    The following reasons in arrest of judgment, were filed in the Court below and overruled.
    1. It is not stated in any part of the indictment, what estate Robert Woodcock had in the premises in which the force is alleged to have been committed at the time laid in the indictment.
    2. In the second count, Joseph Woodcock is said to have been in possession of the house, and it does not appear what estate he had therein.
    S. In the second count, Robert Woodcock is stated to have been seised of the house mentioned in the indictment, but it is not set forth what estate either he or Joseph Woodcock had in the land on which the house was erected.
    4. It is not stated in the indictment, that either Robert or Joseph Woodcock was seised or possessed of the land on which the house mentioned in the indictment was erected.
    
      5. It does not appear from the indictment, to whom the Court ought to award restitution.
    After the cause had been argued in this Court by Thompson and Riddle, for the plaintiffs in error, and by Todd for the Commonwealth,
   Gibson J.,

delivered the opinion of the Court.

In the first count of the indictment, there is not any estate or interest laid in Robert Woodcock, and nothing but a naked possession, which is insufficient to authorise an award of restitution. Our act of assembly, notwithstanding it directs that persons guilty of forcible entry, shall “ make such satisfaction to the party grieved, as the circumstances of the fact will bear,” has never been construed to be more extensively remedial than the St at. 5. Rich. II. c.. 7, of which it has, with us, been held to supply the place. The statutes against this ■ offence were originally wise and salutary provisions which were no doubt, rendered absolutely necessary by the temper of the times: but at present they are. seldom resorted to, except to redress an injury altogether civil in its nature, and with which the public peace is, in no way, concerned. This has gradually given rise to a milder construction, and the Courts, at present, are far from encouraging prosecutors in. having recourse to this mode of proceeding, except where there has been an invasion of a quiet, peaceable, and undisturbed possession held by virtue of such an estate or interest as is plainly within the protection of these statutes.

In the second count Joseph Woodcock, son of Robert Woodcock, is stated to' have been in possession, and the entry is laid as having been made “ into the dwelling house and the possession of the said Joseph Woodcockbut it is after-wards stated, that the defendants expelled “ the said Joseph Woodcock from the possession of the said house, arid did violently and forcibly disseise the said Robert Woodcock of the sameand the detainer is laid against Joseph Woodcock only. There is therefore, no estate laid in Joseph Woodcock, and only an implied freehold in Robert his father, who, it is said, could not have been disseised, without having been seised of an estate of freehold ; and this is admitted. But it is an indisputable rule, that in an indictment, nothing shall be taken by intendment or implication; and although this rule is not to be strained to its utmost extent, and it is difficult, in nice cases, to find any certain test of the propriety of its application, there is, here, no difficulty on that ground ; for the very case, except that it is not near so strong, is put as an example in 2 Hawkins, b. 2. ch. 25. sect. 6, where it is said, that if an indictment of forcible entry finds that A disseised B of such land, existens liberum tenementum of B, it seems agreed that the indictment is insufficient; because it stands indifferent, according to the common rules of construction, whether the land were the freehold of B, at the time of the disseisin, or the time of finding the indictment, the word, existens, referring equally to both. But all this would be immaterial if the implication of seisin arising from the direct allegation of the disseisin itself, were sufficient. Were it not, therefore, for thé alleged possession of Joseph Woodcock, this count would be so faulty, that no judgment of any kind could be given on it, but as it is, sentence might have been well passed for the fine and costs. It might at first seem, that a positive allegation of such facts as constitute the offence charged, is necessáry only to apprise the defendant of the distinct nature of the charge, and not to entitle the prosecutor to his private remedy, and that therefore implications might, for the latter purpose be admitted. I see no difference, however, between that part of the sentence which punishes the public offender, and that which redresses the private injury, for both constitute one whole; and those facts that entitle the prosecutor to his private remedy, are precisely those which constitute the public wrong : they must therefore be stated with legal precision for every purpose. It is error then to award restitution to any but him against whom the offence was committed; and as Robert Woodcock has not been found by the jury to have such an estate in the house as could render him the subject of such an injury as would entitle him to this kind of redress, it follows, that the j udgment must be reversed. /

J udgment reversed.  