STATE . PURDIE.

his way to Dr. Hampton's; about two o'clock he returned to the house of the same witness, or to the blacksmith shop near by; at this time the neighbors were hurrying by him to aid in extinguishing the fire, but defendant did not go, but continued at the shop; it did not appear how long. Counsel proposed to give evidence of the defendant's declarations of the motive of his stopping. This evidence was rejected by the Court, defendant excepted.

From Dr. Hampton's to defendant's is about six miles. In the evening of the same day, after the fire, one of the neighbors, who was returning from the scene of the fire, stopped at defendant's house, he inquired whether Booe suffered much damage, and whom he suspected; next day he averred he could prove his family and himself clear. It was suggested that the fire was accidental, the Court called the attention of the jury to the suggestion, and told them to consider the circumstances, as proved, attending the begining of the fires, their direction and progress, and see whether their recollection and application of the evidence enabled them to inter the probability that the fire was the result of accident. Counsel of defendant excepted. One Sprinkle was a witness called for the State. He was asked on cross examination, if he had not heard his own character proven to be bad in Court; he answered the question that he had, by his enemies; he was also asked if an indictment for perjury had not been sent against him; he answered that it had been. The Court then interposed, and said he would not allow such an examination to be repeated. Defendant tendered himself as a witness, to rebut the threats sworn to by the prosecutor; his testimony for that purpose was rejected. Defendant excepted.

There was a verdict against the defendant. He moved for a new trial, which was refused. There was a motion in arrest of judgment because the indictment did not charge that the woods burnt were not the property of the defentant. Motion overruled. Defendant appealed.

STATE . PURDIE.

Attorney General, for the State.
No counsel for the defendant.

BOYDEN, J. There is no ground for a new trial. The defendant asked the witness, Sprinkle, "if he had not heard his. own character proven in Court, to be bad." This question was answered.

This witness was then asked if an indictment for perjury had not been sent to the Grand Jury of Wilkes Superior Court against him. This question was answered by the witness. The Court then interposed, saying that he would not allow such an examination to be repeated. No further question was asked this witness. The defendant excepted. That this exception can not avail the defendant, has been repeatedly decided by this court.

To avail himself of error in the rejection of evidence, the party must show, distinctly, what the evidence was, in order that its relevancy may appear, and that a prejudice has arisen to him from the rejection. In other words, the error must ap pear upon the record, as only such as do thus appear can be noticed by the Court. Whitesides v. Purdy 8, Ire. 431. State v. Worthington 64, N. C. R. Bland v. O'Hagan Ib. 471, and Street v. Bryan 65, N. C. R. 619, and Overman v. Cable 13, Ire. 1.

It had been proved, that the defendant, about 9 o'clock A. M., of the day of the burning of the woods, had stopped at the house of one Armstrong, on his way to Jonesville, and that about 2 o'clock P. M., of the same day, on his return, he again stopped at the same house, or at a black smith's shop near by, and at this time the neighbors were hurrying by, to aid in extinguishing the fire, but that the defendant did not do so; but remained at the shop, how long it did not appear; The detendant's counsel then proposed to offer evidence of his declaration of the motive for stopping; to the reception of this evidence objection was made, and it was rejected by the Court. This

STATE v. PURDIE.

objection cannot be sustained for the same reason as the other. When these declarations were made it does not appear, whether at the time of stopping, or how long after, nor does it appear what these declarations were. So this Court can neither see that they formed a part of the res gestae as insisted on, or that they were such declarations as could have served the defendant, or had any tendency to disprove, or in any way to modify or diminish the effect of his stopping at the shop, while all the other neighbors were hurrying forward to aid in extinguishing the fire. Therefore there was no error in rejecting the evidence offered.

The motion in arrest of judgment is one of more difficulty. The indictment does not charge, in so many words, that the fire was not set out on the defendant's own land.

But the Court thinks it does charge that which is equiva lent, to-wit, that the defendant unlawfully, wilfully and maliciously, did enter upon the lands of one R. P. Booe, there situate, and did then and there wilfully and unlawfully set fire to the woods, on said lands, and did there wilfully and unlawfully set fire to, and burn the leaves, and stuff, and timber, on said lands, and did then and there unlawfully and wilfully set fire to, burn, destroy, and consume the fences on said land, about and surrounding the cultivated fields of said Booe on said land &c. This we think is equivalent to the allegation not on his own lands, and that, after alleging that the fire was set on the land of the prosecutor, Booe, it would be tautological to have added to this, not on the land of the defendant.

Whether before the Act Rev. Code chap. 35, sec. 20, this indictment would have been sufficient or not, it is unnecessary to decide, as since that act we think the indictment sufficient. There is no error. This will be certified, that the Court may proceed to judgment.

PER CURIAM.

Judgment affirmed.

ALEXANDER v. COMMISSIONERS OF MCDOWELL.

S. B. ALEXANDER vs. COMMISSIONERS OF MCDOWELL.

If a note be made payable at a particular time and place, a demand at the time and place need not be averred and proved in an action by the holder against the maker. It is otherwise, if it is payable on demand at a particular time and place.

In an action, however, against the Board of Commissioners of a County a demand is necessary, without regard to the fact whether the claim is expressed to be payable at any particular time or place, and in a mandamus, "the writ should show expressly, by the averment of a demand and refusal, or an equivalent, that the prosecutor, before his application to the Court, did all in his power to obtaln redress.”

It would seem that in an action against the Commissioners of a County, the action should be brought in the County in which they are officers, C. C. P., sec. 67.

[Nienols v. Pool, 2 Jones 23; Love v. Commissiouers of Chatham, 64 N. C. 706, cited and approved.]

This was a petition for a writ of mandamus against the County Commissioners of McDowell County, filed on the 18th day of October, 1870, and heard before Henry, J., at a Special Term, of MECKLENBURG Superior Court.

The following facts were agreed upon:

That the suit was brought to compel the Commissioners of McDowell County to levy a tax, for the payment of interest due upon bonds issued by the County Court, under authority of an act of the General Assembly, entitled an act, amendatory of an act, incorporating the Western North Carolina Railroad Company.

2d. That said bonds were signed, but not delivered to the railroad company until after the war, and when the county. courts had ceased.

3d. That a tax had not been levied to pay the interest.

4th. That no demand for payment of interest had been made before bringing this suit.

ALEXANDER v. COMMISSIONERS OF MCDOWELL.

5th. That the coupons or interest is made payable at Marion, McDowell, County.

Defendants' counsel insisted that the act of Assembly under which the bonds were issued was unconstitutional.

That the bonds having been issued after the authority of the County Courts ceased were invalid.

That the Commissioners had nc authority to levy a tax.
That a demand was necessary.

His Honor gave judgment for the plaintiff and directed a peremptory mandamus to issue.

Jones & Johnston, for plaintiff.
J. II. Wilson, for defendants.

READE, J. 1. As to whether a demand was necessary before action ?

In Nichols v. Pool, 2 Jones 23, which is the leading case in our Court upon the subject, it is decided, that if a note be payable at a particular time and place, a demand at the time and place need not be averred or poved in an action by the holder against the maker. It is otherwise if the note be payable on demand at a particular time and place.

In our case, it is stated that the notes and coupons were payable at Marion; but it is not stated that they were payable on demand at Marion. It would seem, therefore, that if this were an ordinary action between individuals, no demand would be necessary against the maker. This brings us to the question whether we should hold the same in regard to actions against the Board of County Commissioners. In Love v. Comms. of Chatham, 64 N. C. R. 706, it is decided that a demand is necessary, before action brought, without regard to the fact whether the claim is expressed to be payable at any particular time or place. There is a manifest reason why the rule should be different between an individual and the Board of Commissioners. An individual acts for himself, is supposed to know all