In September last the defendant, who resided at Buffalo, purchased of the plaintiff, in New York, sundry bills of goods on time, upon representations that he was solvent. When the bills became due it was found that he was utterly bankrupt, and it is alleged that his purchases were a fraud upon the plaintiff, and that fact is, by the affidavits and the admissions of the defendant, clearly made out. Under these circumstances the plaintiff disaffirmed the contract of sale, and brought suits against him in trover, held him to bail, and he was arrested by the sheriff of New York, from whose custody he now seeks to be discharged.
The fraud entirely vitiates the contract of sale, and the defendant, having wrongfully obtained possession of the property of the plaintiff, and having refused to return it, or to make compensation for it, he was guilty of a wrong, for which he might be held to bail. The claim of the plaintiff is in no respect founded upon the contract, but upon the fraud, by means of which the defendant obtained the plaintiff’s goods, and in that respect is materially different from the case of Brown v. Treat & Carter, in 1 Hill. In that case the form of the count only was changed, the nature of the contract remaining the same. But in this case the whole matter is *13changed from a contract to a fraud, not in form only, but in fact.
The order to show cause of action is therefore discharged.
[On an appeal to the Supreme Court this ruling was afterward affirmed.]