The defendant engaged in the trial of this case before the. justice of the peace, and succeeded in establishing a defense on the merits. After the case was carried by appeal to the circuit court, he moved to dismiss the suit, because’no security for costs bad been given by the plaintiff; he being a non-resident when the suit was commenced. The defendant had waived his right to make the motion. — Weeks v. Napier, at present term; Thompson v. Clopton, 31 Ala. 647.

Judgment affirmed.