There is no variance between the indictment
and proof, as respects the description of the road. If the indictment had undertaken to give a description of the order establishing the road, and that were an essential ingredient in the offence charged, any material variance between the order and the description of it in the indictment would be fatal. But the indictment does not undertake to describe the order, nor was that necessary; it describes the road; and all that can be required is, that the proof shall relate to the road described in the indictment, as it manifestly does. There can be no doubt that the road described in the indictment and the order are identical.
It was competent and proper to admit evidence to prove that the defendant acted as Overseer of the road ; and the proof of that fact was proof sufficient that he had been duly notified of his appointment. There is nothing in the objection that the order notifying him of his appointment, with the assignation of hands, and the bounds of his precinct, was not produced. When the defendant took upon himself the office of Overseer, and entered upon theperformance of the du„ ties of the office, the presumption is that he had been duly notified of his appointment, and possessed the requisite information to enable him properly to discharge its duties. For Ms failure to discharge them, after accepting the office, and entering upon the performance of its duties, he has neither shown nor offered to show, any matter of justification or excuse. The breach of duty having been established, if there was any matter of justification or excuse, as the Court very properly in*308structed the jury, it devolved upon him to show it in his tie fence. The technical objections urged to the judgment are manifestly untenable. There is no question presented by the record which requires a more particular notice. And as there is no error in the judgment, it is affirmed.
Judgment affirmed.