The defendant appealed from the decision of •the Justice, and sets forth six reasons or grounds for his said •appeal; no one of which is sufficient to reverse the decision of the Justice.

The 2, 4 and 6 are decisions of the Justice upon questions of ¡fact, from which there is no appeal.

The 1st ground is as follows:

The Justice excluded evidence to show that Isaac Street, the •plaintiff, did serious damage to the premises by wilful care-, lessness.

The Justice properly rejected this evidence, as such evidence •of unliquidated damages could not be admitted as evidence of ••a counter claim, or as a set-off, in an action of contract, for the payment of money; and besides, the statement is too indefinite, as no one can tell, in what this wilful carelessness consisted, by which serious damage could be done to the®premises, by a mere laborer, who does not appear to have had any authority, but was merely to labor as directed.

The 3d ground is, “ that the Justice refused all the evidence offered to show counter claim.”

*622 In what this evidence of counter claim consisted, we are not informed. This is too indefinite and uncertain, as an objection for the rejection of competent or relevant testimony. Whitesides v. Twitty, 8 Ire. 431; State v. Worthington, 64 N. C. 594; and Bland v. O'Hagan, Ib. 471.

In the ease in Iredell, Chief Justice Ruffin says: “ That if the decision were erroneous, yet as the case is stated in the bill of exceptions, it is not in the power of the Court to assist the1 defendant; that it has been frequently declared by this Court,, that it is incumbent on the party excepting, when the error alleged consists in rejecting evidence, to show distinctly what the evidence was, in order that its relevancy may appear, and that it may be seen that a prejudice has arisen to him from the-rejection.”

In the case of Bland v. O'Hagan, Justice Dick, in delivering the opinion of the Court says:

“ A party who offers evidence upon a trial, ought to set it forth in distinct terms, so that the Court may pass upon its admissibility, and see that it is relevant to the matters at issue.”

This has not been done by the defendant, and there was no error, as it does not appear how the defendant could be prejudiced by its rejection.

The 5th ground, is in these words: “ That the affidavit of Hillar is not evidence to be allowed 'in this case, as defendant had no notice.”

The case made by the Justice states, that the defendant was represented by the counsel, and that the affidavit was read without objection.

The defendant relies upon the Act of 1870, ch. 227, sec. 17, to sustain this exception. The defendant’s counsel has mistaken the object of this provision in sec. 17. This section does not-apply to cases when the judgment of the Justice is for $25, or under, and where there is to be no new trial in the Superior Court; but to eases, where the party upon appeal is entitled to a trial de novo. This provision was intended to prevent the. *623 objection being urged, that as the deposition had once been read on a previous trial, without exception, it was, as a matter of course, entitled to be read again on a second trial, without showing it had been regularly taken.

Per Curiam. Judgment affirmed.