delivered the opinion of the court. This action is on an open account, and was commenced by attachment, The court below gave judgment in favour of the plaintiffs, and the defendant appealed.

. . . * The most important questions in the cause grow out of proceedings which have taken . place in the state of Mississippi against the defendant, who has been cited and condemned as garnishee of the insolvents. He con- ^ l™ds the judge erred: first, in not considering as res judicata. which predi» ded the plaintiffs from claiming more in the present action than ho was considered to owe in that suit: and secondly, in including the sum for which he was condemned as garnishee in the decree new appealed from.

*31©n the first point, we are of opinion that guch a judgment does not preclude the defen- , 1 1 • J U dant in attachment from shewing that his deb- . tor, who was summoned as garnishee, owes more than he was ordered to pay in that quality. To give to a judgment the authority of res judicata, it is among other things necessa»-xy that the demand must have been between the same parties, and formed by them,against each other, in the same capacity. The present plaintiffs were defendants in the former suit* and were no way interested in establishing that funds of their’s were in the garnishees hands. The contestalio litis was not formed between them on that point, nor on any other.

On the trial the plaintiffs agreed they would not put the judgment they expected to obtain in execution, until the defendant was written to, at his residence in the state of Mississippi^ to ascertain from him whether he would be gafe in paying here the amount for which he had been condemned as garnishee; and that if he decided he was not, they would not exact the same under the judgment. They further introduced a release from the plaintiffs in ate tachment in Mississippi, by which they dis? <⅛*⅛«4 him from the payment of the judg*32ment in their favour, and promised they would ’ 1 ^ execute any otheracquittance he might require. D - i’ney further stipulated hat payment to the syndics should be a complete bar to their demand.

The case of a defendant who has been sued in another country, as garnishee of his creditor, and against whom judgment has been rendered in that capacity, is sui generis Altho’ it does not, for the reasons already mentioned in the first point, authorise the plea of resju• dicata, it offers such strong and equitable claims to protection, that it has been held by courts in other countries it might be pleaded in a subsequent action brought by the creditor. We have, in a former case, recognised the correctness of this doctrine, and we are satisfied the debtor in such cases should be protected. 5 John. 102. 8 Mass. 458. 10 Martin, 628.

But as the defence is an equitable one, we do not think the court erred, under all the circumstances of the case, in giving judgment for the plaintiffs. When the creditors who had obtained judgment in the attachment suit, released the defendant from all responsibility, the right of the original creditors is revived. *33Th^ court, however, should have directed that ’ ’ ... execution should not issue, until the plaintiff in the attachment in Mississippi entered satisfaction on record there, of the judgment against the garnishee. The release here was sous sñag prive, and the defendant ought not to be compelled to prove it in Mississippi, and obtain a discharge on record in that state. The plaintiff should place him in the same situation as if that, suit had not been brought.

We think the court below acted correctly in rejecting the claim for extra freight But we are of opinion it erred in giving judgment for the one per cent, comtnission for accepting the drafts of the defendants. The witnesses sworn on the trial (and they were all commission-merchants) declared, after an inspection of the account, that they would not make such a charge. The judge below was of opinion that as they said they would make other charges which would be equivalent, this should be allowed. But those charges appear to us still 1 -ss susceptible of legal sanction than that made in this case.

It is therefore ordered, adjudged, and decreed, that the judgment of the parish court be annulled, avoided, and reversed. And it is *34further ordered and decreed that the plaintiff 1 do recover of the defendant the sum of two hundred and seven dollars and 74 cents, wi‘h interest from judicial demand, and costs in the court of the first instance. But that they shall not take out execution, until they file in the office of the clerk of the parish court, a copy (duly authenticated by the clerk of the court in the state of Mississippi, where'judgment has been rendered against the defendants as g tr-nishees of the insolvent) of the satisfaction entered on record, by the plaintiff in that suit, of the judgment so obtained by them as aforesaid. It is further ordered that the appellees pay the costs of this appeal.