
    Michael Kilday v. James Leytle.
    Damages — Default Judgment.
    No judgment by default can be taken for damages without proof before a jury or commissioner.
    APPEAL FROM KENTON CIRCUIT COURT.
    September 30, 1869.
    
      Menzies & Furber, for appellant.
    
    Dawson, for appellee.
    
   Opinion of the Court by

Judge Williams:

There are various items iu appellee’s set-off which sound entirely in damages as for a tort and are not of mere contract, hence no judgment by default could be taken on such without proof before a jury, or reference to a commissioner.

Wherefore the judgment being erroneous is reversed, with directions for further proceedings.  