(nem. con.) on the prayer of the defendant’s counsel, instructed the jury that, if they should be satisfied by the evidence, that the traverser was, at the time of the said force, in possession of the said land, under the said Morris, and by virtue of the lease aforesaid, and did not hold the said possession adversely to the said Morris nor to the said Hammond, the jury ought to find the issue for the defendant.

The grounds of the opinion were that the holding must be a *502holding of some person out of a possession. Some person must be put out of possession; but-according to the supposed case, Cooke had no right to possession. Browning’s possession was Hammond’s possession, and Hammond’s possession was Cooke’s possession during the term. The Act of Assembly does not punish the force; it only provides for the restitution ; .but restitution cannot be made to a man not put out of possession, and not entitled to possession. If the Court would not award restitution, the jury ought not to find the defendant guilty; that is, under the construction of the Act of Assembly, the defendant cannot be guilty of unlawful force, unless in a case where restitution ought to be made.

The jury, not being able to agree, were discharged by consent. But at November term, 1809, the jury found the defendant guilty of the force as charged in the inquisition.