There is no ground for the motion to dismiss this action. The court below had jurisdiction both of the subject-matter and of the parties. The defect, if any existed, was in the misjoinder of two separate and distinct causes of action, for each of which the law prescribes different remedies. At common law, the only proper mode of taking advantage of such a defect was by a demurrer or motion in arrest of judgment. 1 Chit. Plead. 236. Under the practice act, St 1852, c. 312, §§ 17, 21, 22, it can be done only by demurrer.
Motion to dismiss overruled.