
    [Chambersburg,
    Friday, October 4, 1811.]
    *The Commonwealth against Harkness and others.
    In Error.
    Notwithstanding an indictment for forcible entry and detainer is so defective, that in point of law it does not set out any offence by the defendants, yet in case of acquittal, the jury may make the prosecutor pay the costs.
    The defendants were indicted in the Quarter Sessions of Cumberland county, of a forcible entry and detainer. Upon the trial they were acquitted by the jury, who by their ver•diet determined that the prosecutor, William Work, should pay the costs of prosecution ; and it was accordingly so adjudged by the court.
    On the argument in this Court, upon the writ of error, it was agreed by the counsel of the defendants, that in point of law the offence of forcible entry and detainer was not properly charged in the indictment, and that the indictment did not legally set out any offence.
    
      Waits for the commonwealth thereupon argued that the judgment for costs against the prosecutor was void.
    The act of December 8th 1804, declares that “ in all prosecutions, cases of felony only excepted, if the bill or bills of indictment shall be returned “ ignoramus,” the grand jury who returns the same shall decide and certify on such bill, whether the county or the prosecutor shall pay the costs; and in all cases of acquittals by the petit jury on indictments. for the offences aforesaid, the jury trying the same shall determine by their verdict, whether the county or the prosecutor or the defendant or defendants shall pay the costs of prosecution; and the jury so determining, in case they direct the prosecutor to pay the costs, shall name him or them in their return or verdict.” 7 St. Laws 1. The act evidently contemplates the case of an acquittal where conviction was possible; and not acquittal where, however guilty the individual, conviction was prevented by the defect of the indictment. It applies to indictments for offences, not to indictments, like the present, which charge no offence whatever.
    
      Gibson for the defendants made two points,
    1. That the prosecutor had no right to assign errors, because the Commonwealth,and not theprosecutor,was the party. 5 Co. 89 ; 9 Co. 115 b.; 2 Saund. 46 a, Note 8 ; 2 Bac. Abr. 456, Error B ; Cro. Jac. 884, 408; Cro. Car. 481. 2. That the judgment was not erroneous. The act in question is remedial, and should be construed liberally. It was intended, as appears by the preamble, to prevent “ restless and turbulent people from harassing the peaceable part of the community with trifling, unfounded, or malicious prosecutions at the expense of the public.” The present prosecution is completely within the mischief of the law, because after the verdict of the jury, not merely acquitting the defendants, but mulcting the prosecutor, it must be taken that the prosecution was wholly unfounded. Costs are intended by the act as a punishment for the malice of the party, who without cause puts defendants to the shame and expense of a public trial; and whether the indictment be defective or not, it is the same thing as it respects his motives, and the inconvenience to the party prosecuted. The case conies precisely within the rule laid down in Chambers v. Robinson, 2 Stra. 691, where it was held that an action for a malicious prosecution could be maintained, though the indictment was so bad, that the party could not be convicted upon it. There might be a difference between prosecuting for an act, which if ever so well charged, would not amount to an offence, and prosecuting under a defective indictment for one which is an offence if well set out. But the true construction of the law is to give the jury power in all prosecutions, except those of felony, to make the prosecutor pay the costs.
   Tilghman C. J.

This is an indictment for a forcible entry into and detainer of the land, &c., of William Work; or rather it was intended so to be; for there was an omission of some material words with respect to the entry, by reason of which the indictment was defective. The jury found the defendants not guilty, and directed that the prosecutor William Work should pay the costs of prosecution ; whereupon the court gave judgment against Work for the costs. The verdict and judgment were founded on the act of 8th December 1804, entitled “ an act to regulate the payment of costs on indictments.” By this act it is enacted, that in all '^prosecutions, cases of felonf only excepted, if the bill of indictment shall be returned ignoramus, the grand jury shall decide, and certify on such bill, whether the county or the prosecutor shall pay the costs of prosecution; and in all cases of acquittal by the petit jury, on indictments for the offences aforesaid, the jury trying the same shall determine by their verdict, whether the county or the prosecutor or the defendant shall pay the costs of prosecution ; and in case they direct the prosecutor to pay the costs, they shall name him in their verdict. In this case, the jury acquitted the defendants, and ordered the prosecutor, whom they named, to pay the costs. It falls within the words of the law, but it is contended, by the counsel for William Work, that no offence being charged in the indictment, the case is not within the spirit of it, because a defective indictment is to be considered as no indictment. There certainly was a prosecution carried on, to which the defendants were obliged to appear and make their defence. The trouble and expense were the same to them, as if the indictment bad been good. If they really were guilty of no offence, the name of the commonwealth was used for an oppressive purpose; and why should the county be subject to costs ? It seems to be rather an aggravation of the prosecutor’s conduct, that he procured an indictment against the defendants for a matter which was no offence. That this case was intended to be comprehended in the act, may be clearly understood from the preamble, wherein it is declared, that the laws obliging the respective counties to pay the costs of prosecution in all criminal cases, where the accused are acquitted, have a tendency to promote litigation, by enabling restless and turbulent people to harass the peaceable part of the community with trilling, unfounded or malicious prosecutions at the expense of the public. In an action for a malicious prosecution on a bad indictment, the same kind of argument was set up which has been used in this case. It was said that the action ought not to lie, because the party prosecuted was in no danger, as the court were bound to give judgment in his favor. But in the case cited from 2 Stra. 691, it was decided, that the action was supportable, because the accused person was put to the costs and trouble of defending himself. It may be said perhaps, that the defendants have escaped by accident and not *on a trial of the merits; but of this we know nothing. They pleaded not guilty, and the jury have so found them. The jury had a right, if they thought proper, to make the county pay the costs; but they have thrown them on the prosecutor, from which we must conclude that they thought the prosecutor to blame. 'Whether we look to the words or spirit of the act of assembly, I am satisfied that the case is within it. I am therefore of opinion that the judgment should be affirmed.

Yeates J.

I am clearly of opinion that the present case is within the plain words and meaning of the act of assembly of 8th December 1804, and entirely concur in the opinion delivered by the Chief Justice for the reasons he has assigned.

Brackenridge J.

An indictment is a finding by a grand jury of something done against the peace and dignity of the commonwealth. It is not the less a finding, because the matter found has not been done, or if done is not a public offence. It is the more wanton in him at whose instance it has been pursued in this form, and comes within the terms and meaning of the act which subjects him to the costs of prosecution. Every man is supposed to know the law both civil and criminal. Every one who complains of an injury, must he supposed to have judged in the first instance whether it is a wrong to the public, or to himself only ; and though it may be his mistake in applying to a magistrate, or the mistake of the magistrate in taking cognizance of the matter as a crime, or of the attorney for the state in sending up such a bill, or of the grand jury in finding such a matter to be against the peace and dignity of the commonwealth, or the error of the court in not quashing if such a motion were made, yet all these mistakes or errors are in contemplation of law the mistakes and errors of him whose the complaint was in the first instance, and who has pursued it in this course. The costs fall upon him, and this principle is founded in .reason and general convenience. It is the policy of the law, even though it be the mistake or error of the officers of justice. The judgment of the Quarter Sessions therefore must be affirmed.

Judgment affirmed.

[Cited in 4 S. & R. 129 ; 17 S. 208.]  