#### JOHN McBOYLE *vs.*EDGAR HANKS AND JAMES M. WHITE.

The owners of slaves, residing within the limits of an incorporated town, are not exempted from the penalty for the failure of sueli slaves to work upon the public roads beyond the limits of such town, unless they are expressly exempted in the charter of incorporation, or by a necessary implication.

A provision in an act of corporation of a town, requiring the Commissioners to lay and collect a tax on the inhabitants of such town to repair tin-streets, is not such a necessary implication.

Tins was an action commenced by warrant before a Justice of the Peace, to recover a penalty, for a failure of the defendants’ slaves to work upon a public road, tried before Judge Saunders, at Spring Term, 1853, of the Superior Court for Washington County.

The plaintiff was overseer of a public road leading out of the town of Plymouth. The defendants reside in Plymouth, and own a Steam Saw Mill, situated, just on the line, but outside the limits of the town, where the slaves in question worked, but they ate and slept at their master’s residence. These slaves were assigned by the County Court to work upon the above mentioned road, and due notice of the time and place of working had been given to tbe defendants.

*134The town of Plymouth was incorporated m 1818. By an act of incorporation, the Commissioners of the town are required to “lay off and repair the streets of the town.” For this purpose, and for other purposes of town government, the Commisioners of that town annually laid a tax upon the citizens of Plymouth.

It was contended for the defendants, that their slaves resided within the town, and were subject to the act of incorporation, and were obliged to pay taxes for the repairs of the street, that they were not liable to work upon the road in question, lying wholly without the limits of the town.

His Honor was of opinion, that the County Court had the right to assign the defendants’ slaves to work on said road, and that the defendants were liable. There was a verdict for the plaintiff. •

Rule for a *venire de novo.*Rule discharged; judgment for plaintiff, from which the defendants appealed.

*Smith,,*for plaintiff.

No counsel-for defendant.

Battle, J.

We have no doubt of the correctness of the judgment given by his Honor in the Court below. The defendants’ hands were, by the provisions of the 104th chapter of the Revised Statutes, bound to work on the public road, to which they were exempted by the 95th chapter of the act of 1818, by which the Commissioners of the town of Plymouth were incorporated. There is no section or clause of that act, by which they are expressly exempted, and the only question is, whether they are so by a necessary implication. The tax imposed upon the citizens of the town, for the purpose of keeping in repair the streets, which it was made the duty of the Commissioners to lay off, certainly did not exonerate them from paying what are called county taxes — taxes to be applied, under the direction of law, for *135the common weal of the country. Now, the performance of labor in working on the public road, is but a tax upon the inhabitants of th'e county, to be paid in personal service instead of money. We can see, then, no more reason why the defendants should, because of their residence, in a town, be exempted from that, than from any oilier kind of tax, imposed and levied for the benefit of the county at large. Nor can the defendants complain of this, for, as a recompense for this additional burden, they have conferred upon them all the advantages of their location in a town, to which many valuable privileges and immunities are secured by charter. But they cannot claim aá a privilege or immunity what is not expressly, or by a necessary implication granted, and among those withheld in this case, is that of exemption from working on the public roads of the county.

The judgment is affirmed.