
    *Eagles v. Hook.
    August Term, 1872,
    Staunton.
    Absent, Bouudut, J.
    
    1. Consolidation of Causes — What Amounts to.—H firing's two actions of debt against E, and the plea in both is payment. The parties agree that the suits shall be tried together, and there is one verdict and judgment for the amount of the debts in both actions. The court might have made an order to consolidate the actions; and the agreement was in effect a consolidation of the causes; and there was no error which can be set up for the first time in the appellate court.
    2. Form of Action—Objection to in Appellate Court.— The note sued on in one of the actions was payable in good Virginia currency. There having been no objection to the form of the action in the court below, it cannot be made in the appellate court.
    In June 1867, Robert S. Hook brought two actions of debt in the Circuit court of Highland countjr, against George and Samuel C. Eagle. The one was on a bond for $420, bearing date the 4th of June 1862, and payable on the 1st of October of the same year. The other was on two bonds, one bearing date the 19th of March 1863, for $127.50, payable on demand in good Virginia currency, with interest from the 1st of October 1862; the other bearing date July 27th, 1863, for $300 payable one day after date. There was a plea of payment in each case, and a joinder of issue thereon; and there was also a special plea that the bonds were given to be paid in Confederate States treasury notes, and in the first case a tender ; but no issue seems to have been taken on thesepleas.
    The causes came on for trial on the 30th of April 1868, *when the parties agreed that they should be heard together ; and the jury ' found a verdict for the plaintiff for the sum of $716.32, with interest thereon from the 30th of April 1868, till paid; and the court rendered a judg.ment in favor of the plaintiff for this sum and interest; and his costs by him about his suits in this behalf expended. And the Eagles thereupon obtained .a supersedeas, from a judge of this court.
    H. W. Sheffey & Bumgardner, for the appellants.
    Woodson, for the appellee.
    
      
      The cases were heard before his election.
    
   CHRISTIAN, J.

delivered the opinion of the court.

Two actions of debt between the same parties were pending in the Circuit court of Highland county. The same plea was filed in each case, to wit: the plea of payment, and issues were made up on that plea only.

By agreement of the parties the cases were heard together before the same jury, which found a verdict in the following words: “We the jury find for the plaintiff the sum of seven hundred and sixteen dollars and thirty-two cents, with interest thereon from the 30th ,day of April 1868, till paid.” A judgment was entered against the defendant for that amount.

There was no motion for a new trial, or in arrest of judgment, nor was there any objection taken in any form, either to the amount or to the form of the judgment. Neither the facts proved, nor the evidence heard, before the jury, are certified to this court.

It is now objected for the first time, in the appellate court, that the judgment is erroneous because there ought to have been a verdict and judgment in each action, instead of a general verdict and a judgment in solido.

The two actions being of the same nature, and between the same parties, it was a proper case for a consolidation of the actions, and the court might properly ex mero *motu, have ordered the cases tobe consolidated and heard together.And while it would have been the most regular course to have entered a' formal order of consolidation, the failure to make that entry is not such an error as can be taken advantage of in an Appellate court.

The agreement of the parties that the causes should be heard together, was in effect a consolidation of the two actions. The parties and the court treated the two actions as one, and a general verdict and judgment in solido, not being objected to by the defendant, cannot be said here to be erroneous. It is clear the defendant, if there were error in the judgment, was not and cannot be injured by it. That judgment would be a complete bar to any suit which might be brought hereafter, upon either of the bonds, which had been the subject of one or the other of the two actions, and he was, in fact, benefited to the extent of saving the costs of trial of one action.

The other ground of error assigned, that in one of the cases the action ought to have been covenant instead of debt, is not well taken. The objection comes too late. It was not taken in the court below, and as the record does not present the question, it cannot be considered in this court. The judgment must be affirmed.

Judgment affirmed.  