Elder

This action was brought in the superior court of the county of Fresno, to recover damages against the respondents, as sureties upon an undertaking in an attachment suit against the plaintiff and appellant here, which attachment suit was dismissed.

The complaint contains two counts. In the first, plaintiff, after the usual averments in reference to the suing out and levy of the attachment upon his land at Fresno, as a predicate for the recovery of damages, alleges as follows, in paragraph 9:—

It is further averred that the attachment was “ wrongfully, and unlawfully, and maliciously sued out,” and that the plaintiff herein “ did not owe any portion of the indebtedness sued on in said action.”

The second count of the complaint is based upon plaintiff’s supposed right to recover attorney’s fees in the attachment suit; and the only portion thereof necessary to the points made is to the effect that plaintiff was put to great expense in defending that action, “ and engaged an attorney to represent him therein, and incurred attorney's fees, to wit, the sum of one hundred dollars.”

Defendants attorneys demurred to the complaint, upon the ground that it did not state facts sufficient…