
    Lowry vs. Medlin.
    1. A plea to the merits of an action on a lost bond waives objections to the regularity of the proceedings, under the act of 1819, eh. 27.
    2. It is the duty of the circuit judge when judgment is rendered on a lost instrument, under the statute, to stay execution till a bond of indemnity is given according to the statute, and if such stay is not ordered, it will be error.
    
      Bulloch, for plaintiff in error.
    
      Shrewsberry, for defendant in error.
   Turley, J.

delivered the opinion of the court.

This is an action brought by John Medlin against Robert Lowry. The covenant having been lost, affidavit of that fact was made before the clerk of the court, which facts are thus set forth in the declaration: “which said article of agreement under seal is lost, an affidavit of the contents of which said article of agreement under seal is herewith filed and to the court now here shown.” ¿

The defendant pleads covenant performed, accord and satisfaction, and the non-performance on the part of plaintiff of conditions precedent; upon all of which, there was a verdict and judgment for the plaintiff.

It is now contended for the plaintiff in error, that the necessary steps were not taken to authorize' the plaintiff in the court below to proceed upon his lost covenant, and that the judgment ought therefore to be arrested.

We do not think it necessary to determine whether the proceedings in the circuit court were regular or not; the declaration cannot be in a worse condition on account of this alleged defect, than would be a declaration upon a covenant without proferí, but would be in the same category, and would be cured by a verdict.

It is well settled that a want of proferí can only be taken advantage of by demurrer, and that if defendant pleads to the merits he waives the objection. But, in as much as the circuit judge neglected to order a stay of execution on the judgment until the plaintiff should file a bond of indemnity for the benefit of the defendant, the judgment must be reversed. And we,now proceeding to give such judgment as the circuit court should have given, direct a judgment for the amount found by the jury, with six per cent, interest thereon, from the date of finding, and order execution thereon to be stayed till a bond of indemnity be filed according to law.  