Indictment — Overseer of Road — Incumbent of Office.
One who professes to be the incumbent of an office and performs the duties of the same is estopped from denying the legality of his appointment; Therefore, where is an indictment for failure to keep a public road in repair it was proven by parol evidence that the defendant professed to be overseer of the road and had in all respects acted as such; Held, to be unnecessary to show his appointment by the Court record.
( State v. Cansler, 75 N.C. 442, cited and approved.)
FAIRCLOTH, J.
The defendant was indicted as an overseer of a public road for failing to keep it in repair and was convicted. The ground of appeal is that his appointment was proved by parol and not by the Court record. The proof was that he had professed to be overseer for three or four years, had summoned the road hands and worked the road repeatedly, in other words had acted as overseer in all respects except that he failed to keep it in good order at all times.
It would be better to produce the record in such cases, but we think the defendant has concluded himself by his own acts.
He took the benefit of his office by not working as a hand, and its other emoluments if any there be.
We have held that a Justice of the Peace who assumed the duties of the office and received the fees belonging thereto, although he had not taken the oath of office, was indictable for misbehavior in office. State v. Cansler, 75 N.C. 442. And on the same principle we hold that the defendant is liable in the present case.
There is error. Let this be certified to the end that the Court below may proceed according to law.
PER CURIAM. Judgment reversed.