
    George Keckely ads. Commissioners of Roads for St. John’s Parish.
    
      It seems that where a parish line rims through a plantation, leaving the dwelling house and some of the negro houses in one parish, and the rest of the negro houses in the other parish, that all the slaves are hound to do road duty in the parish wherein the dwelling house is situated.
    Where notice is required by an act to he given, a newspaper no tice is not sufficient, unless made so by the act.
    The Commissioners of Hoads must give personal notice to persons called upon to do road duty or to make return of their slaves liable to do duty; and the notice must prescribe the time and place.
    Though the act oí 1825 inquires the Boards of Commissioners of each district at their first meeting after the passing of the act, in divide their respective parishes into as many road divisions as there were Commissioners, and to assign one division to each Commissioner, who is authorized to callón the inhabitants of his division, to make returns of their slaves liable to do road duty, yet they are bound to obey the notice of all the imrd, should no such divisions be made", or before they be made.
    The suggestion stated in this case that the relator had under his charge a plantation in Charleston district, tbe dwelling house of which was situated in St. James’ Parish, Goose Creek. That seven hundred acres, part of the tract, were in St. Jamás’ Goose Creek, and two hundred and fifty acres in St. John’s, Berkley. That he, tbe relator, bad lately received notice from the board of commissioners from St. John’s that they had fined him fifty-six dollars, and were about issuing out an execution for the same, for not making a return of the number of ne-groes under bis management liable to work on the high roads. That the relator has remonstrated with the said Commissioners against the injustice of the fine and proceedings of the Board, and received for answer that they had no discretion or power to re-consider the matterin' law, and that the fme must be paid, otherwise the execution would be pressed against him. That under these circumstances he had no other mode of redress left him but by an application to the Court of Common Pleas for a writ of prohibition to restrain the Commissioners aforesaid from further proceedings in the premises. And the said relator gave the Court further to understand that by the act of the Legislature in 1825, sec. 11th, the several Boards oí Commissioners throughout the State were directed at their first meeting after the passing of that act, to divide their respective parishes into as many road divisions as there might be Commissioners, and assign to each Commissioner one division over which he should have the superintendence. That each Commissioner in his respective Division is thereby authorized to call on all the inhabit mts within the same, to make return on oath, (if required) of all the male slayes belonging to them and under their care and management between 16 and 50 years of age at such place, and within such time as he shall appoint. And in default thereof, that such inhabitant shall forfeit and pay 4 dollars for every such slave neglected to be returned. And the relator further suggested that no notice had ever been given him by any person whatever, of the time or place where he Avas to make a return as required by the act, which directs that the Commissioner of each division should call on the inhabitants of the same to make the return at such time or at such place as the Commissioner in each division shall appoint. Nor has he the relator received otherwise any notification of the time or place Avhen and where the said return was to be made, nor of the person to whom it Avas to be made. And the relator further suggests that he cannot be made liable to such penalty, as he firmly believes that from the local position of the plantation he cannot be considered as an inhabitant of the Parish of St. á'oW’s-, Berkley,so as to be amenable to the Commissioners Of the Roads for the said Parish. Wherefore he prays for a writ of Prohibition to restrain them in the premises, &c.
    On the argument the following grounds were taken and relied on by Eckhard for the relator.
    1st. That as Ms Plantation lay partly in both parishes, and some of his negro houses were on one side of the parish line in St. John’s, and some on the other side of the line in St. James’ Parish, to wit, six of them in St. John’s and four of them in St. James’, his place of residence ought to privilege the whole and attach them to and be considered asoné settlement and tobe construed tobe within the Parish where his dwelling is situated, viz. in St. James. Otherwise he must be distracted by dividing his force of hands to work in both parishes at the samé time, which was inconsistent with justice.
    2nd. That the acl requires that the Commissioner in whose division the inhabitants reside, shall call upon them to make the return upon oath of their slaves liable to work on the high roads between 16 and 50 years of age at such time or place as he the Commissioner shall or may appoint, and in default of making such return, the inhabitant shall be iked for default, &c. That the Commissioners of St. John’s entirely omitted or-refused to call on him the relator for the return of his negroes, and therefore it was contended ho was not liable to be fined.
    
      Mazyck & Frost, for the .Commissioners, in reply.
    1st. They urged that the law made no provision for the construction contended for in the relator’s first ground of attaching the negro houses in St. John’s Parish to the relator’s domicil, situated in St. James’, and'that the geographical lines of the Parishes only were to govern them in calling out the negroes within their bounds, regardless of the situation of the Planter’s dwelling house; consequently that the negroes inhabiting the six houses situk-ted in St. John’s Parish, were liable; and the relator had’ incurred the penalty of the act for not returning those' that were liable in that parish. Those situated in St. James’Parish they disclaimed any jurisdiction over them.
    2nd. In answer to the second ground taken by the relator they argued that although the term call is made use of in the act, yet it is of very general and' extensive import. The act has not defined whether this call must be in person or in writing, or by public notice — that it never was intended by the act that the Commissioners of the high roads throughout the State, should ride like post boys through the State, and call at every man’s house with a Bible or Testament in his pocket to swear him to the return of his negroes liable to work on the highroads, ft would be such an intolerable hardship that freemen would not be found to submit to it. Nor could it have been the intention of the act that the high road Commissioners of the State, should write notices to every inhabitant and send them by expresses round the country to everyinhab-itant to call upon him, or meet them at some appointed place in order to make their returns. The fair inference then, was, that this call upon the inhabitants to make their returns must have been intended to be understood to be in the old accustomed way in use from time immemorial, by public notice in one or more of the Gazettes in the district or parish where the parties reside. If this latter mode should be considered as the one contemplated by the act, then the Commissioners of St. John’s had done all that the law required of them; for the public Gazette was produced with notice under the hands of all the Commissioners of St. John’s Parish, calling on the inhabitants to come forward to one of them, to make their returns agreeable to law, and as the relator omitted or refused to come forward to make such return, he had himself to blame, and must take the consequences.
    
      Bay, J. who heard the application, delivered the following opinion : After perusing the clause of the road act relied upon, and considering this case, I am of opinion that the act is not so explicit and definite as “was to have been expected, when the Legislature were about amending the high road system, and throwing all the acts upon that subject into one; for the mode and manner of calling upon the inhabitants to make their returns of their ne-groes liable to work on the roads is certainly susceptible of the different constructions given by the counsel for the Commissioners, and it is difficult to determine with certainty which was the mode intended by the act. In sucl.i a case, and where.there is such ambiguity, the best way of getting over such a difficulty, is by resorting to ancient ways or immemorial customs; for I never can bring myself to believe that the Legislature could have intended to impose so great a hardship on the Commissioners as to require them to ride through the Districts or Parishes, to every man’s house to swear him to his return, and if not at home to call again and again until he could be found.— To give the words of the act this construction would prevent any man of respectability in the country from serving as a Commissioner. The next mode urged, was that of writing notices to every man and sending them by expresses through the country. This mode would be nearly as troublesome as the former, and as exceptionable in every respect. The only mode of reconciling the manner of calling upon the inhabitants to make their returns, with the intention of the Legislature, is by resorting to the old mode of advertising in the public Gazettes where they are printed, or by affixing up public notices of the time and place of making these returns, at' the most public and notorious places in the country, where no Gazettes are printed; and this has been the practice in the State from time immemorial, and no inconvenience bas hitherto been experienced from it, and I trust none-will be, by a continuance of it. From this view of the Cáse, I am disposed to consider the advertisement produced in the public Gazette under the hands of the Commissioners of St. John’s Parish, as good and sufficient no-* tice under the act — as however it appears that only six of the relator’s negro houses are in St. John’s Parish, and four of them over the Parish line in St. James, the Commissioners have no authority to exact any fine but for those within the lines of their parish. As to the relator’s domicil or dwelling house .affording protection or exemption to those of his negroes over:the lines of St. John’s Parish, the law recognises no such protection or exemption. I am therefore of opinion that the prohibition should be refused as to all the negroes of the relator residing in St. John’s parish, but-to be extended to protect, those from fine residing over the line in St. James’ Parish,
    The relator appealed, from this decision on the following grohnds, viz: ;
    1st. That the Commissioners for St; John’s did not divide the Parish into as many roads and divisions as there were Commissioners in conformity with the act of 1825,
    2nd. That the notice by newspaper was not a compliance with the terms of the act, and was of itself insufficient.
    3d. That nonoticewas given by the particular Commissioner to whom the division oí St. John’s Parish within; which the relator was held liable-to road duty, of- the time place or persons to whom the return of slaves was to be madb. - _ - - ■
    4th. That the relator Ivas not an inhabitant of St John’s Berkley, but of. St. James Goose Creek, and not liable-to road duty.
    5thí' That negroes are liable to road duty in the parish 'in which they usually work, and not in such parish as they sleep.
   Cuma ‘per

JohnsoN, J.

The fine imposed on the relator to restrain the collection of which was the object of this application, was for not making a return on oath of the slaves belonging to him and liable to work on the roads conformably to the acts of 1825, and whether the Commissioners had or had not partitioned out the roads of the parish amongst the several Commissioners, appears to me wholly immaterial to the questions arising out of it. I can well conceive that a knowledge of the number and residence of the hands liable to work on the road would be necessary to enable them to make an equitable and judicious partition, and for the same reason I incline to think that the advertisement signed by all the Commissioners (if the manner was legal) calling on the inhabitants to make returns of the number of their slaves liable to do road duty, would be a sufficient compliancewith the act; for the act expressly authorises the Commissioner of a particular section or district to require the returns to be made to such person at such place, and within such time as he shall appoint. He had then the authority to direct that it should be made to one of the Commissioners of the Parish and the notice is not. the less his act because the other Commissioners were joined with him, if indeed they had made partition of the roads, and the power over the section on which it is claimed the relator’s slaves were liable to work, had been assigned to an individual. The case then is resolved into the following propositions.

1st. Whether the slaves ot the relator whose houses are situated in St. John’s Parish were liable to do road duty in that Parish ?

2nd. Whether the notice published in the newspaper, calling on the inhabitants to make return of their slaves was sufficient to charge the relator ?

The Court being with the relator, has declined expressing any opinion on the first; but I cannot forbear to express ray own conviction that the relator is entitled to hisr prohibition on the first ground also. The Parishes of St. John’s and St. James. Goose Creek, are separated by an ideal line, and from the facts stated, it appears that on running it out it is found that his dwelling house and a part of his negro houses are on the side of St. James’ and some of his negro houses are on the side of St. John’s, and it is said that his plantation on which his negroes are usually employed is on St. James’, and whether this is or is not the case,it will serve as an illustration. Now 1 agree that for very many purposes, unnecessary here to be mentioned, a mere ideal line will mark the residence of an inhabitant; but our slaves like other chattels are in legal contemplation attendant on the person of the owner, consequently his residence must be theirs. I do not intend to be understood as laying down this as a rule of universal application. Public policy and convenience would restrain it when it would operate injuriously to the public or the individual; but as applicable to the case under consideration, I am unable to perceive any evil or inconvenience.

The plantation of the relator is entire. His dwelling house, negro houses and plantation, constitute but one establishment, of which the dwelling house is the centre and himself the head, and his slaves are employed on the one side or the other of the line as his necessities may require; but the possession of, and property in the whole is concentered in him, and partake of his individual personal identity, and his residence must be regarded as the residence of the slaves so immediately attached to him.

The individual is not favoured by this conclusion, nor can I perceive that the public service will be prejudiced by it. He is bound to contribute to the public burthen in that parish in which he resides, and it is certainly a convenience -not only to him but to the superintending Commissioner that his hands should be kept together.

2nd. On the second ground there is, I think, less doubt. The act of 1825 authorises the Commissioner to call on the inhabitants to make their returns and to designate the time when, and place where, and the person to whom it is to be made, and imposes a heavy penalty for the neglect — and the mode adopted was to publish a notice in the newspaper; but the act does not authorise this mode, and the rule clearly is that a newspaper notice is not sufficient, unless that mode is pointed out by the law. 1 Phil. Ev. 835. It is said, however, that this mode is sanctioned by long usage, but I am unable to discover the evidence of the fact, nor can I reconcile such a practice to sound reasoning or good policy, especially in those districts or parishes where there is no paper published. The effect would be to impose a penalty against which it would not always be possible to guard. If notice in one paper should be held sufficient, of course it must be so in another, and the inhabitants would be bound to watch in all the papers of the State, to learn what was their duty in amere neighbourhood concernment. This is unreasonable and cannot be allowed. The mode prescribed for summoning the inhabitants to work on the roads by a personal notice is convenient, safe and practical — and I can see no good reason why it should not be adopted in relation to the returns. It is, therefore, ordered and decreed that a prohibition do issue according to the prayer contained in the suggestion of the relator.

Petition granted.  