delivered the opinion of the Court:

The only question presented by this record is, whether process can be sent to a foreign county, against a sole defendant, in an action on the case for deceit. Under the act of 1861, process can be sent, against a sole defendant, into a county other than that in which the suit is brought, only in cases where the action is upon a contract that has been, made in the county in which the action is brought, and the plaintiff is a resident of such county. . The language of the act, by necessary implication, precludes the sending of process to a foreign county, against a sole defendant, in any action not brought upon a contract. The action in this case is not brought upon a contract. It grows out of a contract, it is true, but the action is brought to recover damages for the alleged fraud and deceit practised in making the contract, and not for a violation of any of its terms, or to assert a right based upon the contract.

The demurrer to the replication should have been sustained.

The judgment is reversed and the cause remanded.

Judgment reversed.