
    GILL vs. DOWNS.
    1. When an attachment is sued out in a case not authorized by law, a motion to quash it is not the proper remedy, nor is the refusal to quash on motion re-vísatele on error.
    2. But if a motion to quash were proper in such case, the objection is waived by the failure to make it at the iirst term, and by afterwards appearing and pleading to the merits.
    Appeal from the Circuit Court of Lawrence.
    Tried before the Hon. JOHN E. Moobé.
    This action (William W. Downs v. Samuel C. Gill) was commenced by original attachment, sued out against the defendant as a non-resident. - At the term of the court to which the attachment was returnable, the plaintiff declared in covenant, to recover damages for defendant’s breach of warranty of the soundness of a slave. At the next term, the defendant moved to quash the attachment; but his motion was overruled; he then pleaded to the merits, and judgment was rendered .against him on issue joined. He now assigns for error the overruling of his motion to quash the attachment.
    R. 0. Pickett, for the appellant.
    R. W. Walker, contra.
    
   CHILTON, C. J.

—The only error assigned is, that the court refused the motion to quash the attachment. Such refusal cannot be questioned on error : neither is a motion to quash the remedy in such cases.—Jordan v. Hazard, 10 Ala. 221-6. But, if it were, the defendant waived it, by failing to make it at the first term of the court, and. by afterwards appearing and pleading to the merits.—Burroughs v. Wright, 3 Ala. 43.

Judgment affirmed.  