
    Catharine Hoey v. Timothy Harty.
    
      Matters in aggravation do not convert assumpsit to tort.
    
    Matters of aggravation set forth, in a count in assumpsit do not change it to a count in tort.
    
    Error to Kent.
    Submitted April 13.
    Decided April 19.
    
      Case. Defendants bring error.
    Affirmed.
    
      ED. E. Corbitt for appellant.
    
      McBride & Oairoll and BE. E. Thompson for appellee,.
   Marston, J.

This case comes here on error assigned on the record, no bill of exceptions having been settled. It isnrged here that the declaration would not sustain the judgment, as counts in assumpsit and counts in tort were joined in the same declaration and that such a joinder was fatal, and that upon this declaration a general verdict \was rendered.

There was no such joinder; each and every count was in assumpsit, in some of which matters by way of aggravation were set forth. This does not change the form of the count from assumpsit to tort. The other objections we cannot consider on this record.

The judgment must be affirmed with costs.

The other Justices concurred.  