
    [SEPTEMBER TERM, 1802.]
    The State against Burroughs.
    An indictment will not lie for taking up and removing a corner-stone in the boundary line between A. and B. with intent to injure and endamage the said B.
    An indictment was found against Burroughs, at the Gloucester sessions, in June, 1800, for that “with force and arms, &c., a certain corner-stone erected and placed in the boundary line between the lands of Robert Rowan and Charles Collins, situate, lying and being in the township of Waterford, in the county, and within the jurisdiction aforesaid, wilfully, maliciously and unlawfully, then and there did take up, remove and carry away from the boundary line aforesaid, with intent to injure and endamage the said Charles Collins, against the peace of this state, the government and dignity of the same.”
    To this indictment, the defendant, at the October Oyer and Terminer, pleaded not guilty, and, after conviction and judgment, assigned for error, “ that the indictment contained matter of civil action, but not matter criminal and indictable.”
    
      The ease was argued by Leake L. 11. Stockton, for the defendant, and by Woodruff, (attorney general,) for the state.
    
      *Jfor the defendant.
    
    The facts set forth in this indictment contain no matter of an indictable nature ; it is not a crime against the public, but a private trespass, to remove a corner-stone from a boundary line between two neighbors. An injury of a private nature, unless it in soma way affect the public, cannot be indicted. 2 Hawk. 301, c. 25, see. 4. An indictment will not lie for an attempt to defraud, if neither by false tokens nor by conspiracy. Strange 793, 866. 6 Mod. 105. This is an injury of a private character altogether, and in whicli the public have no kind of interest; an action may be sustained at the suit of the person injured, (Co. Int. 200, b.) but there is no precedent to be found of an indictment for such an act. Until some precedent can be found to warrant this proceeding, the doctrine of Lord Coke is to be regarded, “ that non-usage, where there is no example, is a great intendment that the law will not bear.” Co. Ini. 81, b.
    
    In Rex v. Wheatly, (2 Bur. 1127) Lord Mansfield states the law on this point. “ The offence that is indictable must be such a one as affects the public, as if a man use false weights and measures, and sells by them to all or many of his customers, or uses them in the general course of his dealing,” &c. And in Rex v. Storr, (3 Bur. 1698) where the indictment was for a mere civil trespass, though laid to be with force and arms, the Court of King’s Bench quashed the indictment. The same law was established in Rex. v. Atkyns, 3 Bur. 1706.
    
      For the State.
    
    The general principle is not questioned, that to make an act an indictable offence at common law, it must be of a public nature : the general doctrine is, that all misdemeanors whatsoever, of a public evil example, may bo indicted. 3 Bao. Abr. 549.
    This offence has, however, been enumerated among this description of misdemeanors since the time of Edward II. In the statute for the view of frankpledge, (17 PJdward 2, sec. 9) it is inserted, and considered as a public offence. This statute confers this authority on the court leet to inquire of the removal of boundaries, but the business of this court hath insensibly devolved *on the quarter sessions. .By the act of Hovember, 1794, seo. 2, (Paterson 130) the quarter sessions has cognizance of all offences of an indictable nature.
    
      
       But an offence is indictable, which in its nature, and by its example, tends to the corruption of morals, although it be not committed in public. 2 Scry. & Haw. 91.
    
   Per Curiam.

The judgment of the sessions must be reversed. The offence charged is exclusively a private injury, and in no way concerns the public farther than any other private wrong. The cases cited from Burrows are strongly in point, and on the authority of them we are for reversing the judgment.

Judgment reversed.  