Page:Federal Reporter, 1st Series, Volume 4.djvu/619

 M'oEAOKEN V. OOVINGTON CITY JÎAT. BANK. 605 �actioïi is instituted. The petition alleges that there was a contract of forbearance to bring suit for one year on a claim against plaintiff, and that, in violation of the contract, defendant brought suit, and wantonly and maliciously and wrongfully caused an attachment to' be issued in the action,, ■which was levied upon the property ; that said violation of said contract and said attachment proceedings have very greatly injured his credit and standing, whereby be has been damaged. �The affidavit for an attachment says plaintiff's claim ia upon a contract, and the learned counsel in his brief says that the action arises upon a contract, viz., for the violation of a contract; but I confess that I have had great difficulty in determining from the petition the precise character of tMa action — whether it is an action for the violation of the con- tract of extension by the bringing of that suit, or whether it is an action for wantonly, maliciously, and wrongfully issu- ing an attachment in the suit thus brought ; whether the alle- gation in regard to the attachment is to be treated as simply an incident connected with the bringing of the suit, or whether the wrongful issuing of the attachment is the real cause of action. If the former, then the question arises whether the case made by the petition, in that respect would be for a claim upon a contract such as is contemplated by the clause of the statute referred to, which authorizes an attachment to issue. If it be an action for wrongfully issuing an attach- ment, it is very clear that no attachment could issue, for it would not be a claim for a debt or demand arising upon con- tract. �I bave been somewhat at a loss to determine whether the action is the one or the other ; but upon a fuU examination of the petition I bave determined that it is not an action for a debt or demand arising upon contract, such as is contem- plated by the statuts of Ohio, and that, therefore, no attach- ment could have legally issued against the defendant, who is a foreign corporation. It is, however, provided by section 5242 of the Statutes of the United States that no attachment ����