
    Richard Ostram, Appellee, vs. Robert McQueen, Appellant.
    1. If a creditor of a debtor garnishee bufo re a Justice, bring an action for tho >011110 debt pending the garnishee suit, und tho trial taken placo (titer judgment against Hie principal debtor • under generalísimo, the garnishee will not bo permitted to defeat a wovury of unj surplus over undftho vo tho amount necessary to satisfy such judgment.
    
      % Tho pondoncy of the garnishee proceedings i|t the commencement of tin/suit can only W avuiluble, [fat all, by ploaiiutbatwuont.
    3. If a J ustiee charge n jury erroneously, the error cannot be taken advantage of by appeal.
    
      Saginaw Circuit Court,
    
    1869.
    • The defendant was garnisheed by one Worden, ás the plaintiff’s debtor prior to the commencement of this suit, and that, proceeding was pending when this suit was instituted. The defendant disclosed an indebtedness as garnishee to the amount of $25,. and the parties admit that that was the amount of hi* liabilities,' and he suffered judgment as such for $19 18, Thi* suit was afterwards brought to trial and the plaintiffs recovered a-verdict for $13 12, the Justice having charged the jury, if they , found defendant indebted for a larger sura than the judgment against him as garnishee, they might find for the plaintiff 'for such excess.
    
      
      D. F. Foot for Plaintiff.
    
      T. Brousseau for Defendant.
   By the Court,

Sutherland, J-

The 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.

As 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.

The objection ceased to have any force when the judgment was rendered.

If there was error in the charge of the Justice to the jury, it cannot be taken advantage of on appeal.

Judgment for plaintiff.  