We will not decide whether the matter charged in the indictment constitutes an indictable offence, as the question is not presented by the facts stated in the special verdict; and a decision of that point is consequently not called for.
There is a fatal variance between the allegations of the indictment and the proof. An executed contract is alleged; whereas, the proof shows only an executory contract: And the fact is, that before the contract was executed, the fraudulent mixing in of dirt, c., was discovered, which caused an abandonment of the original executory contract, and a new contract was then made and acted upon, in which there was no fraud; for the presence of dirt was then known and admitted, and an allowance was made to cover it.
Judgment affirmed.