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