This is an appeal from an order vacating an order of arrest. No facts are set forth in the papers upon which the order of arrest was granted that show the defendant to have been guilty of fraud. It appears that he promised to do certain things in order to induce the plaintiff's to part with property. That he so promised with intent to deceive is not stated. Because he failed to perform his agreement does not raise a presumption that he in*610tended non-performance at the time he made the agreement; retroactive presumptions are not applicable to eases such as this. The order appealed from should be affirmed, with $10 costs.