
    Chas. Cecil v. J. M. Gardner.
    Bonds — Proceedings On By Motion.
    If the proceeding by motion was erroneous the appearance to the motion and making same defense that could have been made in a suit on the bond was a waiver.
    APPEAL FROM HARDIN CIRCUIT COURT.
    February 22, 1872.
    
      Wilson, for appellant.
    
    
      Marriott, for appellee.
    
   Opinion of the Court by

Judge Pryor:

If the proceeding by motion to recover of the appellant was erroneous (which we do not decide) the appearance of the appellant to the motion and upon the hearing making the same defense that could have been made in a suit upon the bond without interposing any objection whatever, until judgment was rendered against him is a waiver of all the objections that he is now making for the first time in this court. There is no- proof of either fraud or mistake in the execution of the bond. The judgment of the court below is affirmed.  