¶1By the Court,
¶2The pendency of the proceedings against defendant as garnishee, when this suit was brought, is insisted on as a bar under the'general issue. § 4796, C. L.
¶3As the plaintiff’s right is limited to reeoyey the excess and he is at liberty to recover that at same time, (§4797, C. L.,) the pendency of the proceedings against the defendant as garnishee is at most only a temporary suspension of the right of action. Is this a good defense to the merits ? I think it should have been pleaded in abatement, for it only suspends the right of action, and does not take it away altogether. Green’s Pr., §§ 325, 350; Percival vs. Hickey, 18 John., 257; 19 Wend., 207; 2 Mich., 178.
¶4The objection ceased to have any force when the judgment was rendered.
¶5If there was error in the charge of the Justice to the jury, it cannot be taken advantage of on appeal.
¶6Judgment for plaintiff.