The fourth plea of defendants — appellants here — seeks to raise the question of res judicata, or former recovery. That plea avers that, in a former suit between these parties, Pounds pleaded in justification the existence of the identical debt which is the foundation of the present suit, and that the garnishment was legally sued out; that upon this plea issue was joined, “ and it became material and necessary, under the charge of the court upon said issue, for the jury to determine whether or not the said Hamners were indebted to the said Baleigh Pounds, as is now alleged in the complaint in this suit; and the said issue was so determined by the jury, and found in favor of the defendant, Hamner.” The suit, referred to in this plea, was upon a bond given by Pounds to obtain a garnishment; and the gravamen of the action was, that the garnishment was wrongfully and vexatiously sued out. The suit, in aid of which the garnishment was issued, had gone out of court by voluntary non-suit suffered by plaintiff, Pounds. Failure to prosecute the former suit to effect, was a breach of the garnishment-bond, and entitled Hamner, the plaintiff in that suit, to recover the actual damage he had sustained. Under the charge of the court, given in that case, and under the evidence allowed, the recovery was not excessive, even for the actual damage proved, not allowing anything on the score of exemplary or vindictive damages. If the jury had found, in that case, that the Plamners did owe Pounds the debt, to collect which he had sued out the garnishment, that fact, without more, could not have prevented a recovery. It would still have left unanswered, first, the breach of the bond in failing to prosecute the garnishment to effect; and, ■second, the inquiry, whether the garnishment was sued out needlessly, or in the honest belief that garnishment was necessary to obtain satisfaction of his claim. Again, under the charge of the court, given in that suit, an honest belief, *352entertained by Pounds, that the Hamners owed him as alleged in his complaint, was made quite as effective in defense, as if they had in fact owed him the debt. Under the instructions as to attorney’s fees, the verdict was not excessive, even if the jury were convinced that the Hamners owed Pounds the fifteen hundred dollars claimed. There is nothing, then, in the record of the former suit which shows that the jury, on that trial, found there was no debt from Hamners to Pounds; nor is there any evidence in this record which shows such finding, or that the jury passed on the question of indebtedness vel non.
We have been thus particular in stating the substance of the plea, because issue was taken upon it; and also, in stating the evidence in support of it, because, even if the issue was immaterial, yet, if the averments of the plea were proved, it was the duty of the court to instruct the jury, on finding such to be the case, to give their verdict for the defendant. 2 Brick. Dig. 361, §§ 505, 506. The plaintiff’s remedy in such case, is to apply to the court for a repleader, or for judgment non obstante veredicto.—Mudge v. Treat, page 1, of this volume.
It will be seen from what is stated above, that there was no proof offered to the jury in the trial of this cause, that the jury in the trial of the cause of Hamner v. Pounds, found against the validity of the debt herein sued for; and the record in that suit, given in evidence in this, fails to prove they so found. Hence, this case is not brought within the influence of the principles declared in Hopkinson v. Shelton, 37 Ala. 306.
There being, then, an entire absence of proof, so far as we can perceive, that the jury in that suit found against the validity of the debt sued for in this case, we can not say the proof sustained the fourth plea. The charge excepted to was free from error, because the facts supposed therein, if found to exist, would not, without more, either sustain the plea, or bar this action. To meet the requirements of the plea, an additional fact was necessary to be proved and found by the jury; namely, that the debt sued for had been pronounced against in the former suit.
What we have said above has reference to the pleadings, proof and charge, as found in the present record. It is by no means certain that the plea is itself good. While it is undeniably true that the judgment of the same court, or of a court of concurrent jurisdiction, directly upon the point is, as a plea, a bar; or, as evidence, conclusive between the same *353parties, upon the same matter directly in question in another suit or court, yet, such judgment, though within the court’s jurisdiction, is not evidence of any matter which came collaterally in question, or of any matter incidentally cognizable, or which is to be inferred by argument from the judgment rendered.—Duchess of Kingston’s Case, 11 St. Trials, 261; 1 Greenl. Ev. § 565; 2 Smith’s Lead. Cases, 677. This doctrine has been repeatedly recognized and asserted in this State.—Davidson v. Shipman, 6 Ala. 27, 33; Strother v. Butler, 17 Ala. 733; Thomason v. Odum, 31 Ala. 108. In Strother v. Butler, supra, it was said: “ Where it does not appear from the record of a former suit that a particular demand was passed upon, parol proof is admissible to show that it was; but in the absence of such proof, it can not be presumed that it was so passed upon, especially if the demand be of such a character as prima facie to authorize the conclusion that it could not have been tried in the former suit.” So, in Chamberlain v. Gaillard, 26 Ala. 504, it was said, speaking of this defense when pleaded in an action of detinue: “ If the plea contained an averment that the ownership of the slave formed a material part of the issue on the former trial, it would still be defective. To make it a good plea, it must show that on the former trial, the jury necessarily determined that the plaintiff therein was the owner of the slave down to the commencement of the detinue suit.” It does not appear from the record in the case of Hammer v. Pounds, that the jury necessarily determined, or determined at all, that the Hamners did not owe Pounds the debt, to collect which he sued out the garnishment.
Judgment of the Circuit Court affirmed.