
    Jacob J. Sherman et. al. plaintiffs and appellants, vs. Thomas M. Brantley, defendant and respondent.
    In an action to recover damages for the tort of the defendant, in fraudulently misrepresenting the responsibility of another, whereby the plaintiffs were induced to sell the latter, merchandise on credit, an order of arrest may be granted, under subdivision 1, of section 179 of the Code of Proceedure, where the defendant is a non-resident.
    (Before Robertson, Ch. J., and Monell and McCunn, JJ.)
    Heard December 21, 1867;
    decided January —, 1868.
    
      This is an appeal from, an order made at special term, vacating an order of arrest under which the defendant had been arrested and held to bail in $2500. The action is for damages for fraud and deceit on the part of the defendant, in representing one J. N. Land of Forsyth, Ga. the brother-in-law and a partner of the defendant, as perfectly good, and entitled to credit, whereby the plaintiffs were induced to sell him groceries, on a credit to the extent of $2560.74, of which $2260.74 remains unpaid. The plaintiffs’ affidavits, on which the order of arrest was granted, set forth a letter of the defendant, dated Forsyth, Ga. November 7th, 1866, containing the representation as to. Land’s solvency; the sale and credit induced thereby; the fact that shortly after the sale, the plaintiffs’ agent went to Georgia, and found that Land -had absconded, and was utterly worthless, and that by common fame he was known to be, and for several years had been without pecuniary responsibility, and unworthy of credit, and that the defendant himself admitted Land’s entire insolvency. The affidavit of one of the plaintiffs also alleged that the defendant was not a resident of this state, but resided at Forsyth, in the state of Georgia.
    The defendant moved to vacate the order of arrest, upon affidavits amounting to a denial of the plaintiffs’ allegations ; without showing, however, that no cause of action existed. On an order to show cause, the order of arrest was vacated, and the defendant discharged.
    
      Wm. Allen Butler, for the appellants, plaintiffs.
    
      Roger A. Prior, for the respondent, defendant.
   By the Court, Robertson, Ch. J.

The action in this case is not on contract, but for damages for the tort of the defendant in fraudulently misrepresenting the responsibility of one J. N. Land, whereby the plaintiffs were induced to sell him merchandise. The allegation in one of the affidavits on which the order of arrest was issued, that the defendant is a non-resident, is not denied. I therefore cannot perceive upon what ground the order of arrest was vacated, as it certainly was properly granted, under the first subdivision of section 179 of the Code.

The order appealed from must be reversed, without costs.  