111]

V.

D. M. HOLLINGSWORTH.

(See S. C., Reporter's ed., 111.)

Docketing cause.

It is not necessary to docket a cause twice, because it was brought to this court both by a writ of error and an appeal, and neither the appeal nor the writ of error will be dismissed; but when this court hears the cause, it will determine whether it is properly here, and will proceed accordingly.

[No. 866.]

Argued Nov. 13, 1876. Decided Nov. 13, 1876.

In Error to the Circuit Court of the United
States for the Eastern District of Texas.
On motion.

The case is fully stated by the court.
Mr. W. P. Ballinger, for plaintiff in error.
Mr. James Loundes, for defendant in error.

Mr. Chief Justice Waite delivered the opinion of the court:

Hurst, the plaintiff below, being in doubt whether his case was one to be brought here by appeal or by writ of error, took the precaution of suing out a writ of error, and obtaining also the allowance of an appeal. At the proper time he filed a transcript of the record, and the cause was docketed by the clerk as upon a writ of error; thereupon the defendant moved to docket and dismiss the appeal. Hurst now appears and asks leave to docket his appeal. The defendant does not object to this, but, treating it as an election for Hurst to proceed here upon the appeal, moves to dismiss the writ of error.

was

These motions are all denied. There was but one action in the court below, and there is but one record. When the transcript of that record was brought here by Hurst, his cause docketed. It is not necessary to enter it twice, because, out of abundant caution and to guard against a possible chance of dismissal, he has brought it here in two ways. He has but one cause; and, when we come to examine it, we will determine whether it is properly here by appeal or writ of error, and proceed accordingly.

V.

JOHN SEDGWICK, Assignee of Frederick S.
Comstock and James M. Wheeler, Bankrupts.

(See S. C., Reporter's ed., 1-3.)
Objection waived.

Where an objection was not made in the court below, it is too late to make it in this court. [No. 103.]

Argued Nov. 17, 1876. Decided Nov. 20, 1876.

In Error to the Circuit Court of the United States for the Southern District of New York.

Suit was brought by the defendant in error for work and labor, and for money advanced, etc., in the District Court of the United States for the Southern District of New York. Judgment was given for the plaintiff and affirmed upon appeal by the circuit court, whereupon the defendant sued out this writ of error.

The case is sufficiently stated by the court. Messrs. Thomas M. Wheeler and Goodrich, for plaintiff in error.

Messrs. F. N. Bangs, C. W. Bangs, T. M. North and P. Phillips, for defendant in error.

We find no error in this record. To say the least, there was some evidence before the jury tending to prove the items of the account upon which the suit was brought, and the court, therefore, properly refused to instruct the jury to find for the defendant.

The jury were not instructed that the plaintiff was entitled to recover the amount of

$26,458.90 at all events, but only in case all the questions in dispute were found in his favor. That there was no controversy as to the amount of the recovery, if the other questions were settled in favor of the plaintiff, is evident from the fact that a witness was called, who, without objection, furnished the jury a calculation of interest upon the several items of the account as