The opinion of the Court was delivered by

Unless the charge imported by the words is indictable, the words are not actionable. But it is said, (3 Chit. Cr. L. 994), notwithstanding Hawkins’s definition of the offence of cheating as consisting in " defrauding or endeavouring to defraud another of his known right by some artful device,” yet that no fraud less than a felony is indictable at the common law, unless it affects the public in general, as in selling by false weights, which was said, in Young v. The King, (3 T. R. 104,) to be indictable, *410though the sale were only to a single person. Yet from what was said by Lord Mansfield, in Rex v. Wheatly, (2 Burr. 1127), it would seem that the weights must have been intended to be used in the general course of the party’s business, though it might be sufficient if a single instance of their actual use were proved. In that case, where a brewer had delivered a less for a greater quantity of beer to a customer, that eminent Judge said an offence must be such as affects the public — the use of false weights, for instance, in a general course of dealing; and that the fact will not be indictable if it be merely an inconvenience and injury to a private person; and that those deceptions which common care and prudence can guard against, are private injuries and not public wrongs. It was ruled, therefore, that the defendant was guilty of no more than a simple imposition in having delivered a less quantity than he pretended to have done. Thus stands the question at the common law; and those British statutes which make particular frauds on an individual a public offence, are not in force here. Respublica v. Powell, (1 Dall. 47). With what, then, was the plaintiff charged ? Not with cheating in a course of public dealing, but with an attempt to cheat in a private transaction, against which common care and prudence were sufficient to guard, because the fraud attempted was alleged, in fact, to have been unsuccessful; it was discovered before the transaction was concluded, and the buyer paid for no more than he got. As the plaintiff, therefore, could not have been prosecuted for a cheat, had the charge been true, the words are not actionable.

Judgment reversed.