
    Winston v. Overseers of the Poor of Hanover.
    [October, 1797.]
    Defective Notice— Appearance — ldffeet.— Appearance waives defects in the form of a notice.
    Motion- Judgment— Presumption,— After judgment on a motion, the court will presume that all necessary things were proved, unless the contrary appears in the record.
    Overseers of Poor — Authority to Appoint Collectors— Statute. — The overseers had not authority before the act of 1793. to appoint collectors in any case; but the courts might, when the sheriff failed to give securin'.
    Collectors — Appointment.—And, if, in this case, there had been such appointment by the court, and the defendant had wished to avail himself of it. he ought to have shewn it.
    Same — Sheriff.—For the sheri tf is prima facie collector.
    The overseers of the poor, on the 3d of June, 1790, made a motion, in the county court of Hanover, for judgment against “William O. Winston, gent., late sheriff of the said county,” for the amount of money levied for the maintenance of the poor of the said county, for the year 1787. And the court rendered judgment in the following words, “This day came the plaintiffs by their attorney, and on hearing the said plaintiffs, it is considered by the court, that they recover against the defendant the sum of two hundred and ninety-six pounds, eighteen shillings and eight pence farthing, and also their costs in this behalf expended, the defendant confessing to have had legal notice of this motion. By consent of the plaintiffs, all discounts are to *be allowed, which may be made appear to William Norvell, gent., on or before the tenth day of July next.” Winston obtained a writ of super-sedeas, from the district court, to the judgment ; but it was affirmed: and, from the judgment of affirmance, he appealed to the court of appeals.
    Warden, for the appellant.
    The notice was to Winston as sheriff, and not as collector, as it ought to have been, as it does not appear that the sheriff had been appointed collector. Rev. Code 191, $ 10. The judgment was uncertain, as the amount was to be ascertained by Norvell afterwards.
    Call, contra.
    Proper notice will be presumed after judgment, especially, as the defendant acknowledged the legality of it. The demand was for the poor rates of 1787 and the act of 1792 has no effect upon the case, because the sheriff was bound, ex officio, to collect the rates of 1787. But, if it were true that the overseers could have appointed a collector for the year 1787, the appointment was not necessary to be shewn, unless called for by the defendant. The judgment was certain, as it was for a liquidated sum, and the note at the foot was the act of the plaintiffs, and not of the court.
    Cur. adv. vult.
   PENDLETON, President,

delivered the resolution of the court.

The objections are,

1. That the notice was improper, being given to the defendant as sheriff, and not as collector.

The court, however, decide that Mr. Winston, knew the character he acted in, waived the objection, if it was one, since his acknowledgment of notice admitted its propriety in form and substance.

2. That, as the sheriff is not officially obliged to collect the poor rates, without the appointment for that purpose by *the overseers of the poor, it should appear in the record that evidence was given of the appointment to charge the defendant.

This objection admits of two answers.

The first is, that the counsel mistakes the law, when he grounds his objection on the act of 1792, which empowers the overseers to appoint a collector: for that act was not in force in the year 1787. The laws then in force were two acts of assembly of 1785 and 1786; which do not authorize the overseers to appoint a collector of the poor rates; but they were, in their several districts, to adjust the claims of the poor, make a list of them, and return it to the clerk of the court, who was to deliver the lists to the collector of the public taxes; and he was to collect and account for the money, or be subject to a judgment upon motion.

The collectors of the public taxes were the sheriffs prima facie: and if they could not, or would not, give security, the courts were empowered to appoint collectors. If that had happened in the present case, it was incumbent on the defendant to have made the objection, when the records of the same court would have settled the fact. The silence therefore, is an admission that no such appointment had been made.

The other answer alluded to, is, that since no objection, that the evidence is defective, is stated on the record, we presume it was compleat to warrant the judgment, on the same principle that upon an appeal from a general verdict, when no evidence is stated, its sufficiency, to justify the verdict is presumed; the cases being in principle the same.

The third objection made by the counsel, that the permission to make dicounts was by consent of the plaintiffs only, and not of both parties, seems to be a strange one.

X fancy, in true criticism, the term consent of one party, implies a proposition on the part of the other. But this court do not found their judgment on verbal criticisms. The thing was for the benefit of the defendant, and he cannot complain.

Judgment affirmed.  