
    Solomon Nimocks and another vs. Madison Inks.
    In a declaration containing different counts, some sounding in contract and some in tort, there is a misjoinder, and for such cause the declaration will be held bad, either on demurrer or in arrest of judgment} and such defect is not cured by the second section of the act “to regulate the practice of the judicial courts/7 passed March 12, im>.
    
    This is a Writ or Error to the Supreme Court of Knox County.
    The case comes before the Court upon Writ of Error to the Supreme Court of Knox county. The original action was commenced before a Justice of the Peace, by the plaintiffs in error, against the defendant, on the 28th January, 1843. From the decision of the Justice an appeal was taken to the Court of Common Pleas.
    
      In the Court of Common Pleas the plaintiffs filed a declaration containing four counts. In the first count it is alleged in substance, that on the first day of April, 1842, at Knox county, the plaintiffs at the special instance and request of the defendant, employed the defendant as a mill-wright, to repair a saw mill belonging to the plaintiffs, at the price and for the sum of one dollar and fifty cents per day, and the defendant “ then and there agreed to superintend and boss the job, and put in a new forebay and reaction wheel, in said saw mill, and to make it saw as fast, if not faster, than William Lavering’s saw mill in Congress township, Richland county.” And although a reasonable time has long since elapsed, “yet the defendant, not regarding his employment and agreement, did not put in a new forebay, &c., but hath wholly neglected and refused so to do,” &c.
    The second count is like the first in its introductory part, setting forth the employment and undertakings of the defendant, and then proceeds: “Yet the said defendant not regarding his duty, and his said employment, but contriving and continuing to aggrieve the said plaintiffs, did not nor would put in the said new forebay or said reaction wheel, with due care, skill, and dilligence, and so as to make the said saw mill of the said plaintiffs, saw as fast as the said William Lavering’s said saw mill, and on the contrary thereof, the said defendant put in the said new forebay and reaction wheel in such a careless, unskillful, undue and improper manner-and with such a want of due and proper care, skill and dilligence in that behalf, that the said saw mill of the said plaintiffs did not saw as fast as the said saw mill of the said William Lavering, and became and was rendered wholly useless, to wit, on the first day of June, 1842, at Knox county aforesaid, and the said plaintiffs were then and there forced and obliged to expend large sums of money, which they would not otherwise had to do, and were forced and obliged by the reason of said neglect and unskillfulness of said defendant, to keep their said saw mill for a long time, to wit, one year, idle and unemployed.” ^
    The third count is something like the first, and the fourth substantially the same as the second.
    
      To this declaration the defendant pleaded not guilty, upon plea issue was joined. At the October Term, 1843, of Court of Common Pleas of Knox county, the case was tried by a jury, and a verdict returned in favor of the plaintiff. Whereupon the defendant moved in arrest of judgment, assigning for cause that in the declaration there was a misjoinder of causes of action. At the A pril Term of the said Court of Common Pleas, 1844, this motion in arrest came up for hearing, and the Court sustained the same, and rendered judgment in favor of the defendant.
    To reverse this judgment, the cause was removed by writ of error to the Supreme Court.
    In the Supreme Court it was assigned for error :
    1st. “That the Court of Common Pleas had arrested the judgment for a trifling technicality, without any sufficient and legal cause.
    2d. “The Court arrested the judgment,- and rendered a judgment against the plaintiffs for the costs in the case,- when in fact no judgment had been rendered in favor of the plaintiffs in the verdict.
    3d. “ The Court has omitted to render a judgment on the verdict of the jury at all.
    4th. “ The judgment was arrested by the Court in violation of the provisions of the second section of the act, entitled (an act to regulate the practice of the Judicial Courts,’ passed March 12, 1844.”
    The case in error came up for hearing in the Supreme Court, at the September Term, 1844, and upon such hearing, the judgment of the Court of Common Pleas was affirmed. To reverse this judgment of affirmance, this writ of error is prosecuted.
    
      Bartley fy Kirkwood, for Plaintiffs in Error.
    
      Delano Israel, and R. C. Hurd, for Defendant.
   Hitchcock, J.

The case now presented for the consideration of the Court, is not of much importance, so far as the amount in controversy is concerned, nor is there any involved of much consequence. The suit, however, has been prosecuted with much perseverance. It was commenced before a Justice of the Peace, and after he had passed upon it, was appealed to the Court of Common Pleas. In that Court, a trial was had by jury, but the verdict was set aside, and the judgment arrested. ■ It was next brought into the Supreme Court of the proper county, and by that Court, the judgment of the Court of Common Pleas was affirmed. From the Supreme Court of the county, it was brought into this Court, by writ errror, and has been depending here four years.

Not having been furnished with any argument by the counsel for the plaintiff in error, we know nothing of the points relied upon for the reversal of the judgment, either of the Supreme Court, or of the Court of Common Pleas, except as the same can be gathered from the assignment of errors. The simple question for consideration is, whether the Court of Common NPleas erred in arresting the judgment, because if that Court erred, the Supreme Court erred in affirming its judgment.

The motion in arrest was based upon the ground that in the declaration there was a misjoinder of actions, or causes of action. If there was such misjoinder, is this a sufficient reason why the judgment should have been arrested ? We suppose it is. Mr. Chitty, in his treatise upon pleading, says, “ the consequences of a misjoinder, are more important than the circumstance of a particular count being defective ; for in the case of misjoinder, however perfect the respective counts may be in themselves, the declaration will be bad on general demurrer, or in arrest of judgment.” (1 Chitty’s Pl. 235.) Taking this to be the rule of law, the question arises, whether in the declaration before us, there is a misjoinder. The first count in the declaration is upon contract. It sets forth an agreement, on the part of the defendant, to do and perform certain work and labor, upon and for the consideration specified, and that the defendant neglected and refused to perform the work and labor which he had agreed to perform. '

To us, it seems equally clear that the second count is in tort. The ground relied upon in this count for a recovery is, that the defendant would not do the work with care, skill, and diigence, but performed it “ in such a careless, unskillful, undue and imperfect manner, and with such a want of due and proper care, skill and diligence,” &c. If actions sounding in contract, and actions sounding in tort, can be joined in the same declaration, then there was no misjoinder; but if, .as we suppose, said actions cannot be joined in the same declaration, there was a misjoinder.

But it seems to be supposed that this was merely a technical objection, and that being a technical objection, the case is within the second section of the act of March 12, 1844, “ To regulate the practice of the Judicial Courts.” (42 Ohio Laws, 72.) This section provides “ that no new trial shall be granted, or judgments arrested, or writ of error allowed, after trial or judgment in the Court of Common Pleas or Superior Court, on account of any objection to the form of action in which the plaintiff may have declared, or on account of any technical objection to the declaration or other part of the proceedings, in case the facts are substantially alleged, which the party was bound to prove on the trial, in order to entitle him to a recovery.” It is to be observed that this act was passed while the motion in arrest was under consideration in the Court of Common Pleas. That motion was made at the the October Term, 1843, the act was passed March 12th, 1844, and the motion decided at the April Term of the Court of the same year. Whether under such circumstances the statute, even had it reference to a case like this, could be construed as applicable to this case, is a matter of doubt. In order so to apply it, we must give it a retrospective operation, which should never be done, unless in consequence of an express provision to that effect, and even in such case the Court would hesitate. But I apprehend that the statute has no application to a case like this. The objection taken to the declaration is not merely a technical objection. It is no more technical, than would be an objection to a declaration because it contained one count upon a. bond, another an assault and battery, and another for breach of promise of marriage. Under the statute, if an action of trespass on the case should be brought, when the proper .remedy would be trespass, I suppose the action might be sustained. But an action of assumpsit would not be sustained by the proof of a slander. Satisfied that in the case before us there was a misjoinder, we are of opinion that no error intervened, either in the Court of Common Pleas or in the Supreme Court. The judgment of the latter Court is therefore affirmed.  