BRICKELL, C. J.
This was an action on an attachment bond to recover damages for the breach thereof by wrongful suing out of the attachment. The original complaint and the second count of the amended complaint were withdrawn, and the trial was had on the first count of the amended complaint. In this count, which claims actual damages only, the only breach assigned is, ‘ ‘the said attachment was wrongfully sued out in this, because the said [plaintiffs] were not about fraudulently to dispose of their property as alleged in the affidavit in said attachment suit.” The defendant demurred to this count on the grounds that it did not deny that the debt for which the attachment was sued out was due, and failed to aver that no ground existed for the suing out of the attachment; and the overruling of the demurrer is one of the errors' assigned. One of the conditions of an attachment bond is that the obligors shall páy tó the defendant in the'attachment all such damages as he may sustain by the wrongful or vexatious suing out of the attachment. In an action on such bond the defendant is not confined in his defense to proof of the existence óf the particular ground of attachment averred in the affidavit, but may show the existence of any statutory ground. If any such ground existed the at-attachment was not wrongfully sued out, and there was consequently no breach of the bond in this respect, if there was a valid debt due from the defendant to the plaintiff.—Gabel v. Hammerwell, 44 Ala. 336 ; Lockhart v. Woods, 38 Ala. 631. Hence, when only a'ctual damages are sought, and the fact of indebtedness is not denied, the complaint should, in some- form, negative the existence of any statutory ground for the suing out of the attachment, since the bond is not broken unless the attachment was wrongfully sued out, and the non-existence of the particular ground averred in the affidavit, or of any particular ground, does not render the attachment wrongful.—Crofford v. Vassar, 95 Ala. 548 ; McLane v. McTighe, 89 Ala. 411. When exemplary damages are claimed the complaint, in addition to averring that the attachment was wrongfully sued out, must negative the sworn ground upon which the attachment issued, and aver that it was sued out without probable cause for believing the sworn ground to be true. — City Nat. Bank v. Jeffries, 73 Ala. 183 ; Schloss v. Rovelsky, 107 Ala. 596. [335]*335But this averment is not necessary where only actual damages are. claimed.—McLane v. McTighe, supra. An averment in the complaint that the attachment was wrongfully sued out, “because the said [plaintiffs] were not about- fraudulently to dispose of their property as alleged in the affidavit,” is equivalent only to an averment of the non-existence of the particular ground upon which the process issued. It is not equivalent to an averment, that the attachment was wrongfully sued out, since other grounds may have existed, and if any other ground did exist the attachment was not wrongful. It does not, of consequence, show any breach of the bond. To require the defendant to take issue on such averment would deprive him of a legal defense; the existence of some other statutory ground for the suing out of the attachment. This being the only assignment of the breach, the complaint fails to show that there has been any breach of the bond, and the demurrer should have been sustained.
The complaint claimed as damages the value of the property seized under the writ,' and the defendant pleaded in mitigation of damages that plaintiff had replevied the goods levied on, and had afterwards sold them and applied the proceeds to the payment of the debt due defendant. There was a demurrer to this plea on the ground that, these facts could not be considered in mitigation of damages, which demurrer was sustained. In Hundley v. Chadick, 109 Ala. 575, it was held, after a careful consideration of the question, that in an action on an attachment bond for the wrongful suing out of the attachment, the fact that the attached property, which had been taken from the. defendant, and had not been replevied nor returned to him, brought its fair value when sold under the order of the court, and that the proceeds of its sale had been applied to the payment of the debt of the defendant, constituted no bar to the action, and was not matter in mitigation of damages. We adhere to this principle, an'd its enforcement is necessary in order to prevent the abuse of the process of attachment. If the plaintiff in the attachment proceedings be permitted to make this defense when sued on his bond, the restraints imposed by statute for the purpose of preventing an abuse of the process, would be useless. But when the defendant in the attachment suit replevies the [336]*336property, thereby retaining the possession and enjoyment of it, and himself sells'it,.in his own way and on his own terms, and with the proceeds pays the debt, the reason oh. which the principle rests ceases, and the principie becomes inapplicable. The replevy and .sale of the property in such case is not the necessary result of the suing out of the attachment, but is the voluntary act of the defendant, done for his own convenience and benefit to prevent the injury which would result from a failure to replevy. He may, or may not replevy, or, having replevied, may or may not sell the property, and pay the debt, and the mere right to do so, which the statute grants him, and the contingency of his exercising the right, can not lessen the influence upon a creditor of those statutes which require him to give bond for the payment of all such damages as may'result from the abuse of the process. ' When property levied on by attachment is restored to the defendant without having been replevied, the damages recoverable include, not the value'of the property, but the value of its use during the detention, together with such other actual damages as may be shown, and such, we believe, should be the rule when the defendant replevies the property and sells it. We are of the opinion that when property seized under a writ of attachment is replevied by the defendant, who afterwards sells it, and with the proceeds pays the debt’ to enforce which the attachment was sued out, 'these facts may be pleaded in mitigation of damages in' an action on the attachment bond. But in the present case, all the facts averred in the plea were alleged in the complaint, and were, therefore, admitted facts upon which no issue could be taken, except to deny their truth, which was not the purpose of the plea. The plea, therefore, raised no issue and was unnecessary to enable the defendant to obtain advantage of the facts set forth therein. When an element of damages is claimed, which the complaint itself shows is not recoverable, the proper way to raise this objection is by a motion to strike, or by objection to evidence offered to prove the damages, or by request for proper instructions to the juxy. — Treadwell v. Tillis, 108 Ala. 262; Kennon & Bro. v. West. Un. Tel. Co., 92 Ala. 399. The sustaining of the demurrer was not an error of which appellant can complain.
[337]
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BRICKELL, C. J.
This was an action on an attachment bond to recover damages for the breach thereof by wrongful suing out of the attachment. The original complaint and the second count of the amended complaint were withdrawn, and the trial was had on the first count of the amended complaint. In this count, which claims actual damages only, the only breach assigned is, ‘ ‘the said attachment was wrongfully sued out in this, because the said [plaintiffs] were not about fraudulently to dispose of their property as alleged in the affidavit in said attachment suit.” The defendant demurred to this count on the grounds that it did not deny that the debt for which the attachment was sued out was due, and failed to aver that no ground existed for the suing out of the attachment; and the overruling of the demurrer is one of the errors' assigned. One of the conditions of an attachment bond is that the obligors shall páy tó the defendant in the'attachment all such damages as he may sustain by the wrongful or vexatious suing out of the attachment. In an action on such bond the defendant is not confined in his defense to proof of the existence óf the particular ground of attachment averred in the affidavit, but may show the existence of any statutory ground. If any such ground existed the at-attachment was not wrongfully sued out, and there was consequently no breach of the bond in this respect, if there was a valid debt due from the defendant to the plaintiff.—Gabel v. Hammerwell, 44 Ala. 336 ; Lockhart v. Woods, 38 Ala. 631. Hence, when only a'ctual damages are sought, and the fact of indebtedness is not denied, the complaint should, in some- form, negative the existence of any statutory ground for the suing out of the attachment, since the bond is not broken unless the attachment was wrongfully sued out, and the non-existence of the particular ground averred in the affidavit, or of any particular ground, does not render the attachment wrongful.—Crofford v. Vassar, 95 Ala. 548 ; McLane v. McTighe, 89 Ala. 411. When exemplary damages are claimed the complaint, in addition to averring that the attachment was wrongfully sued out, must negative the sworn ground upon which the attachment issued, and aver that it was sued out without probable cause for believing the sworn ground to be true. — City Nat. Bank v. Jeffries, 73 Ala. 183 ; Schloss v. Rovelsky, 107 Ala. 596. [335]*335But this averment is not necessary where only actual damages are. claimed.—McLane v. McTighe, supra. An averment in the complaint that the attachment was wrongfully sued out, “because the said [plaintiffs] were not about- fraudulently to dispose of their property as alleged in the affidavit,” is equivalent only to an averment of the non-existence of the particular ground upon which the process issued. It is not equivalent to an averment, that the attachment was wrongfully sued out, since other grounds may have existed, and if any other ground did exist the attachment was not wrongful. It does not, of consequence, show any breach of the bond. To require the defendant to take issue on such averment would deprive him of a legal defense; the existence of some other statutory ground for the suing out of the attachment. This being the only assignment of the breach, the complaint fails to show that there has been any breach of the bond, and the demurrer should have been sustained.
The complaint claimed as damages the value of the property seized under the writ,' and the defendant pleaded in mitigation of damages that plaintiff had replevied the goods levied on, and had afterwards sold them and applied the proceeds to the payment of the debt due defendant. There was a demurrer to this plea on the ground that, these facts could not be considered in mitigation of damages, which demurrer was sustained. In Hundley v. Chadick, 109 Ala. 575, it was held, after a careful consideration of the question, that in an action on an attachment bond for the wrongful suing out of the attachment, the fact that the attached property, which had been taken from the. defendant, and had not been replevied nor returned to him, brought its fair value when sold under the order of the court, and that the proceeds of its sale had been applied to the payment of the debt of the defendant, constituted no bar to the action, and was not matter in mitigation of damages. We adhere to this principle, an'd its enforcement is necessary in order to prevent the abuse of the process of attachment. If the plaintiff in the attachment proceedings be permitted to make this defense when sued on his bond, the restraints imposed by statute for the purpose of preventing an abuse of the process, would be useless. But when the defendant in the attachment suit replevies the [336]*336property, thereby retaining the possession and enjoyment of it, and himself sells'it,.in his own way and on his own terms, and with the proceeds pays the debt, the reason oh. which the principle rests ceases, and the principie becomes inapplicable. The replevy and .sale of the property in such case is not the necessary result of the suing out of the attachment, but is the voluntary act of the defendant, done for his own convenience and benefit to prevent the injury which would result from a failure to replevy. He may, or may not replevy, or, having replevied, may or may not sell the property, and pay the debt, and the mere right to do so, which the statute grants him, and the contingency of his exercising the right, can not lessen the influence upon a creditor of those statutes which require him to give bond for the payment of all such damages as may'result from the abuse of the process. ' When property levied on by attachment is restored to the defendant without having been replevied, the damages recoverable include, not the value'of the property, but the value of its use during the detention, together with such other actual damages as may be shown, and such, we believe, should be the rule when the defendant replevies the property and sells it. We are of the opinion that when property seized under a writ of attachment is replevied by the defendant, who afterwards sells it, and with the proceeds pays the debt’ to enforce which the attachment was sued out, 'these facts may be pleaded in mitigation of damages in' an action on the attachment bond. But in the present case, all the facts averred in the plea were alleged in the complaint, and were, therefore, admitted facts upon which no issue could be taken, except to deny their truth, which was not the purpose of the plea. The plea, therefore, raised no issue and was unnecessary to enable the defendant to obtain advantage of the facts set forth therein. When an element of damages is claimed, which the complaint itself shows is not recoverable, the proper way to raise this objection is by a motion to strike, or by objection to evidence offered to prove the damages, or by request for proper instructions to the juxy. — Treadwell v. Tillis, 108 Ala. 262; Kennon & Bro. v. West. Un. Tel. Co., 92 Ala. 399. The sustaining of the demurrer was not an error of which appellant can complain.
[337]*337Although, each member of a partnership is, generally-speaking, liable for all the debts of the firm, and the voluntary conveyance by one partner of his individual property may be fraudulent as to the partnership creditors, and, if fraudulent, will authorize such creditors to follow up and subject to the payment of their claims the property thus fraudulently conveyed, or to sue out an attachment against such partner, yet such fraudulent disposition of his individual property by one of the partners is not a fraudulent disposition of the partnership property, and does not, of itself, constitute a statutory ground for the suing out of an attachment against the partnership by a partnership creditor. — Bates on Bart., § 1117. In an action by a partnership, or by the members thereof as partners, on an attachment bond seeking damages only for the injuries done by the wrongful seizure of the partnership property, it is no defense that one of the partners had fraudulently disposed of his individual property. For this reason charges A, B, 3, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15 and 16, requested by appellants, were properly refused.
There was evidence tending to show that one, at least, of the partners consented to the suing out of the attachment, and upon this evidence a charge was requested, that if the jury believed the evidence, they must find for the defendants. It is not contended that the consent of one partner to the suing out of an attachment against the partnership bound the partnership, but that, one of the partners having by his consent disabled himself to sue on the bond, there can be no recovery by the others, because all must recover, or none can. Although it is a principle of law that if two or more unite in bringing an action, all must recover or none can, and that if one has disabled himself to maintain the suit, this precludes the others from recovering, it has been expressly held by this court in Fancher Bros. & Co. v. Bibb Furnace Co., 80 Ala. 481, overruling a former decision to the contrary in Cochran v. Cunningham, 16 Ala. 448, that this principle does not apply in a suit by a partnership, and that the partnership can not thus be deprived of the right to collect its assets, or to redress wrongs committed against it, because of the estoppel against or remittitur by one of the partners.
In considering all the charges we have treated the [338]*338action as one instituted by the members of the partnership of Edwards & Munn Bros, as partners, to redress a wrong done to the partnership, and not as a suit by them as individuals to recover for the wrong done to each individually, as counsel for appellants insist it should be treated. The plaintiffs are described in the caption of the original complaint as “Dan Munn, George Munn and Tom Edwards, late partnees, doing business under the firm name of Edwards & Munn Bros.,” and the summons followed the complaint. The caption of the. amended complaint, as it appears in the record, omitted the word “late” but was in other respects the same. This is a proper description of the plaintiffs in a suit by a partnership, or by the membei-s thereof as pax-tners, to recover pax-tnership assets, axid there is nothixxg in the body of the coxnplaint to indicate that the plaintiffs sue as individuals. The bond sued on was made payable to Dan Munxi, George Munn, Tom Edwards and to Ed-wax-ds & Munn Bx-os. It was px-opex-ly so made because in the complaint axid affidavit in the attachment proceedings, both the partnership axid the ixidividual membex-s were xnade x>arties defendant, and when the attachxnent proceedings are agaixist a xiai’tnership .and the individual members thereof, the statute authorizes the proxierty of each partner, as well as that of the partnershix>, to be seized, axid the writ so directs. — Code of 1886, § 2947. The bond, therefore, was an obligation to indemnify each of the x>artners individually, in the event of a levy on his individual xn-operty, and the partnershixi and members thereof as partners, in the event of a levy oil partnership property. But the complaint avers tliat the bond was x>ayable to “xilaintiffs, ” and, as we have seen, the plaintiffs are the members of the firm as xiartners, or the x^artnershix). This was a fatal -variance and entitled defendants to the general charge in their favor, which was refused.—Gamble v. Kellum, 97 Ala. 677. To authorize a x-ecovery on axi attachmexxt bond all the obligees named therein must join as plaintiffs, in the caxiacity in which they are named, for the use of such as claim to have been injured.—Smith v. Mutual Loan & Trust Co., 102 Ala. 282; Masterson v. Phinizy, 56 Ala. 336. When it appears from the complaint that all the obligees have not been joined as plain[339]*339tiffs, the defect should be taken advantage of by demurrer, and will be treated as waived if no demurrer is interposed. When, however, the complaint fails to show who are the obligees, and avers only, as here, that the bond was payable to “plaintiffs,” then, if the bond was in fact payable to others besides the plaintiffs, objection may be made to its introduction in evidence, or a variance may- be claimed and proper charges requested. There was no error in giving the charges requested by plaintiffs.
For the errors pointed out, the judgment of the court below must be reversed and the cause remanded.
Reversed and remanded.