Atkinson, J.
This was a prosecution for cheating and swindling. The prosecutor claimed that the accused represented to him •that a certain number of ties had been cut, under a contract entered into between them, and that on the faith of those representations various amounts of money had been advanced by the prosecutor to the defendant. It was also contended that these representations were false as to the number of ties, and the prosecutor was thereby defrauded and cheated on account of the advances made being in excessof the number of ties cut. The evidence as to the number of ties actually cut is not sufficient to show beyond all reasonable doubt that the representations of the accused were false. Such being the case, the accused should not have been convicted under the accusation. The court erred in not granting a new trial.
Judgment reversed.
All thf. Justices concur.