Majority
p. 251Dunbar against Williams. NEWYORK, May, 1813.
Headnote
No action lies ]^a Medicine to^ndatteíL dance on, a the know-J^ji® °fjj®' master, m a case not requiringinstarfc ¿Tate “assist-y se that if medi«al, or other assistance be rendered to it slave, iti acase of such pressing necessity as not to admit of a previous application to the master, the person rendering the assistance would be entitled to ait action to recover a compensation from the master, on thorns plied asáítmp* <sit* arising from the obligation of the master to make the requisite for his slave»
IN ERROR, on certiorari, from a justice’s court. Williams brought an action against Dunbar before the justice, for medicine administered by the plaintiff below, and attendance as a physician, on a negro slave, belonging to the defendant. The defendant pleaded non assumpsit. The plaintiff proved his bill to be reasonable, and it was admitted that he kept honest books, and that the person he attended was the slave of the defendant. It was proved that the * slave had a foul disease, which he concealed from the defendant, and that he applied to the plaintiff who cured him. No request of the defendant, nor promise by him to pay the plaintiff, was shown, The justice gave judgment for the plaintiff, for 7 dollars and 68 . •, cents, the amount ot his demand.
If medical aid or other assistance be rendered to a slave in a case of necessity, which does not admit of a previous application to the master, the person so rendering the assistance, would, probably, be entitled to compensation from the master ; and the law would raise an implied assumpsit, on the ground that the master was legally bound to make the requisite provision for his slave. On this principle, it was ruled by Lord Eldon, in Simmons v. Wilmot, (3 Esp. Rep. 91.) that if a person takes care of a casual pauper, and for whom the parish officers would he liable to provide, he has a right to recover his expenses of them;
p. 252
and the judge of the C. B. in Wennall v. Adney, (3 Bos. & Pull. 247.) admitted the same rule, and for the same reason, that the parish officers were legally bound to provide necessaries for the pauper. This is the utmost extent to which the cases have gone, and even this point seems to have been overruled in Atkins v. Barnwell. (2 East, 505.) But the case of the slave in the present instance, was not one that required instant and indispensable assistance. We are to presume that the master was accessible, and both able and willing to grant the requisite aid. The service was voluntary on the part of the defendant below. It was not a case in extremis; and if the plaintiff did not choose to apply to the master, or to take care that his assent was obtained, the service must be deemed gratuitous. It would be dangerous to the rights of owners of slaves, to allow them to charge their masters with medical assistance, when the case was not so urgent as to prevent a previous application to the master for his direction, The judgment must be reversed.
Judgment reversed.