
    Mitchell vs. The State.
    Roads. Overseer. The overseer of a public road is not excused from the performance of the duties enjoined upon him by the statute, by the fact that before the expiration of the year for which he was appointed, he removes from the “bounds” of that road into the “bounds” of another.
    Same. Same. Order of the court. If the order of the county court direct that the overseer of a road shall have the “same list and bounds of hands” that were assigned to his predecessor, it is a sufficient specification of the bounds within which persons wore subject to work under him.
    Same. Same. Waiver. If the order appointing an overseer be irregular, and he, notwithstanding, proceeds to the performance of the duties of overseer, he thereby waives the irregularity.
    At the October Term, 1852, of the circuit court of White county, Goodall., Judge, presiding, Mitchell was convicted, as stated in the opinion, and he thereupon appealed in error.
    S. Turney, for plaintiff in error.
    ATTORNEY Geneeal, for the State.
   Totten, J.,

delivered the opinion of .the court.

The defendant, Mitchell, an overseer of a road, was indicted and convicted for not keeping- the road in proper repair.

1. He removed, after his appointment, from the bounds of that road into the bounds of another. This is no excuse; he should have returned the order of his appointment, and moved the court, for sufficient cause, to discharge him from his office.

Having failed to do so, he remained liable to perform its duties, no other overseer being appointed.

2. The order did not specify the bounds within which persons were subject to work under said overseer; but it says be was to have tbe same list and bounds of bands that worked under James Taylor, late overseer.” Tbis made tbe former order a part of tbe present order, and is sufficiently certain; and besides, tbe proof shows that tbe overseer “proceeded to tbe performance of tbe duties of bis office,” and that is a waiver of any irregularity in tbe order, if, in fact, one existed; 1819, ch. 26 § 3.

Affirm tbe judgment.  