Page:Federal Reporter, 1st Series, Volume 4.djvu/620

606 VKOSBiXi BEPOBTEB. �shaU be issued against a national banking association bj a state court before final judgment. But it is contended by the learned counsel for plaintifif that this provision is intended to apply to such associations as were in insolvency, and being wound up. In Central Nat. Bank v. Bichland Nat. Bank of Mansfield, 52 How. (N. Y.) 136, it was held that the provision was general, and applied to ail national banking associations. But whether this be the correct construction it is not neces- sary now to determine, for, under the statutes of Ohio, and for the reasons already assigned, the attachaient was issued without authority of law, and must, therefore, be discharged. �To the petition the defendant bas filed a general demurrer, stating as a cause therefor that the petition does not contain facts sufficient to oonstitute a cause of action. The determi- nation of this demurrer must depend upon the cause of action as made by the allegations of the petition. If the petition be regarded as setting forth as the cause of action the violation of the agreement between plaintiflF and defendant for an exten- sion of time to plaintiff upon his liability as an indorser by the bringing of an action before^the lapse of the time for which plaintiff claims that his liability was extended, then the plain- tiff has no cause of action unless he should allege that such suit was brought maliciously. In the absence of malice no damages can be recovered by a defendant who has defeated a plaintiff in a civil suit, as, in the eye of the law, the costs recovered by the defendant in the civil suit will compensate him. Stewart v. Sonneborn, 98 U. S. 187. On the other hand, if this action be considered, as the court has already treated it in disposing of the motion, as an action for wrong- fully and maliciously suing out an attaohment, then the plain- tiff here cannot maintain his action, as he fails to allege that the proceedings began against him wrongfuUy, and mali- ciously bave corne to end. �It is true that if the attachment can be discharged without regard to the cause of action, then, upon the discharge of the attachment, the plaintiff might maintain an action for wrong- fnlly and maliciously suing out an attachment. Thus, in thô ����