
    Town of Hazlehurst v. Cumberland Telephone and Telegraph Company.
    Pleadings. Causes of action. Misjoinder. Code 1892, § 671. General demurrer.
    
    A declaration which, in one of its counts states a cause of action distinctly ex contractu and in another a cause of action distinctly ex delicto is subject to a general demurrer. A misjoinder of causes of action is not warranted by Code 1892, § 671, abolishing forms of action.
    Erom tbe circuit court of Copiab county.
    Hon. David M. Miller, Judge.
    Tbe town of Hazleburst, appellant, was plaintiff in tbe court below; tbe telephone company, appellee, was defendant there. Erom a judgment sustaining a general demurrer to tbe declaration and dismissing the suit, plaintiff appealed to tbe supreme court. Tbe demurrer assigned a misjoinder of causes of action, among other grounds, and when it was sustained the plaintiff declined to amend tbe declaration.
    
      Robert B. Mayes, for appellant.
    It will be noted by tbe court that tbe declaration in this cause contains two counts, in one of which tbe defendants are sued for a breach of their contract with tbe town; and in tbe second count, they are sued for tbe value of tbe use of tbe streets of tbe town without reference to contract. Tbe object of bringing this suit in this way is: Eirst, to get damages for tbe breach of contract in case tbe court bolds that tbe contract was a valid one; and second, in case tbe court holds that tbe contract is not a valid contract, then to obtain a reasonable sum for tbe use of tbe valuable privileges thus enjoyed by tbe defendant company.
    
      It is urged by counsel for appellee in bis demurrer that the declaration shall be dismissed for the reason that these two counts cannot be joined, and in support of this proposition he cites the case of Elder v. Hilzheim, 35 Miss., 231. It will be seen on an examination of this decision in the first place that the case does not support the contention of counsel, and in the second place, that that case was decided in 1860 before the passage of the code of 1892 (and code of 1811 prior to that time), abolishing all forms of action. All that is necessary in a declaration, according to Code 1892, § 611, is that the declaration contain a statement of the facts constituting the cause of action, and if the declaration, or any part of it, whether it be contained in one count, or two counts, on the whole, shows a .good cause of action, then it is no objection what the form may be or how many counts be inserted in it. As our court has aptly -expressed it in the case of Miller v. Wesson, 58 Miss., 831: “Each •of several counts of a declaration is as distinct from the others :as if in a separate declaration, except as it may refer to another in express terms, and the several counts must be tried as if they were independent suits.” Again, it is said in § 611 of the code of 1892: “It shall not be an objection to maintaining any action that the form thereof should have been different.” It will be observed that the case in 35 Miss., relied on by counsel in support of his contentions, in the first place, does not sustain it, and in the next, if it did, it was decided under code of 1851, Art. 18, p. 491, which had not abolished the distinctions between forms of action.
    
      J. S. Sexton, for appellee.
    There can be no doubt that the first count in the declaration is in form ex contractu, and that the second count is in form ex delicto, in reference to which Chitty on Pleadings announced the rule as follows: “But in order to prevent the confusion which must ensue in different forms of action, requiring different pleas and different judgments, and- of a different nature, were allowed to be joined in one action, it is a general rule that actions in form ex contractu cannot be joined with those in form ex delicto. Thus assumpsit cannot be joined with case or trover, nor trover with detinue, etc.” Ohitty on Pleadings (16th A., ed.), 222.
    “Actions ex contractu and ex delicto. The common law procedure inhibits the joinder of causes of actions ex contractu and those ex delicto, etc.” 1 Ene. P. & P., 170, par. 9 and note. Elder v. Hilzheim, 35 Miss., 244.
    Section 664- of the code of 1892 has reference to the ^non-joinder or misjoinder of plaintiffs.” Section 665 has reference to the “nonjoinder or misjoinder of defendants.” Section 671 code does not warrant the joinder of separate and distinct causes of action in one suit, when their natures are so variant as in this case.
   OalhooN, J.,

delivered the opinion of the court.

The first count of the declaration is on a cause of action distinctly ex contractu. The second is one distinctly ex delicto. Here is, therefore, a misjoinder of causes of action, and a general demurrer to the whole declaration was properly sustained. 1 Enc. of PL and Pr., 194, 195, 196, and notes; Ohitty’s PI. (16th ed.), *228. Our code does not change this. Since this of itself disposes of the case before us, we do not decide other questions raised.

Affirmed.  