
    Percival & Johnson v. Joshua Nevill.
    The master of an apprentice is not liable, without special contract, for medicine administered to, and attendance on, his apprentice, where the master did not send for the physician, and where the services were not rendered under his roof.
    Tried before Mr. Justice Johnson. Summary process, on bill for medical attendance on William James Knauff.
    *It appeared in evidence, that William James Knauff was an apprentice boy, bound to the defendant, and while in his employment, being sick, he went home to his mother’s house ; his mother employed the plaintiffs to attend him during his sickness. There was no proof of any promise, on the part of the defendant, to pay the plaintiffs, nor was there any stipulation in the articles of apprenticeship which made him liable for medicines or medical aid for the apprentice, during his term of service. One of the plaintiffs’ witnesses (the apprentice, Wm. J. Knauff,) proved, that, when he was first taken sick, the defendant gave him a dollar to buy medicines, and said, if he did not get better, “ ¿'physician ought to be sent for,” or, “ he must send for a physician,” which of these expressions was used, he was not certain. Plaintiffs also proved, that defendant visited the apprentice while he was sick; knew of plaintiffs’ attendance, and made no objections to it; and even said, that, if the mother was alarmed, he would send his family physician, (Dr. Prioleau,) to attend him, or some other physician. Prom these facts the plaintiffs inferred such an undertaking as would render defendant liable to pay the bill.
    The defendant contended, that, in the first place, he was not liable by any express promise, or by any agreement in the articles of apprenticeship.
    
      2. That the law raised do promise or liability whereby he could be made chargeable for the bill, as the relation between a master and servant was not such as would render the former liable for a doctor’s bill for attendance on the latter, without an express contract to that effect.
    The Recorder charged the jury, on every ground, against the defendant, whereupon the plaintiffs obtained a verdict,
    The Recorder’s note, of his charge, was as follows, to wit: “ In this case the Court were of opinion, that both law and facts made the master liable. That the case of an apprentice was stronger than that of a servant for a year in England, and that the articles of *apprenticeship implied, and the cases in the books jnstifled, the plaintiffs in suing for the doctor’s bill.”
    The judge, in the Circuit Court, ordered a new trial, for misdirection in the Recorder’s charge, upon the question, whether the master of an apprentice is liable, without a special contract, for medicines administered to, and attendance on, his apprentice, when the master did not himself request the aid of the physician ; and when the services were not rendered to the apprentice under the roof of his master.
    From this order the plaintiffs appealed.
   The opinion of the Court -was delivered by

Riciiardson, J.

In the case before us, the master made no request of the physician ; nor were the services performed under the roof of the master, so as to raise a plain conclusion, that he required the performance of the physician’s services. The inquiry then is as follows, to wit: Does the private economical relation existing between • master and apprentice, of itself, imply an obligation, on the part of master, to pay for services rendered under such circumstances ? In his chapter of master and servant, (1 Black, Com. 426,) the commentator makes apprentices the second species of servants, of which he enumerates four, tp wit, menial servants, apprentices, laborers, and stewards, &c., which last he describes as of superior capacity. He treats of the relations between the master and any of these, as the same, generally. He notes two peculiarities respecting apprentices, as arising from general principles, to wit: that the master may correct them, and that they have no wages, (their labor and earnings going exclusively to the master during apprenticeship.) In all other duties, rights, and privileges, apprentices stand upon the footing of other servants, except as varied by express contract. (See Bae. Abridg. Master and Servants.) Indeed, as a person under lawful age could not bind himself as an apprentice, it seems to follow, that we must look to the exPress contract or ^statutory regulations for any peculiar consequences arising out of his relation with his master. Blackstone concludes his doctrine of master and servant with this remark, “we may observe, that in all the cases here put, the master may be frequently a loser by the trust reposed in his servant, but never can be a gainer.” This remark .applies emphatically to the relation of master and apprentice. The former has much to lose, the latter much to gain. It has been determined, in this State, that the master cannot sue the apprentice on his indentures; (M'Knight v. Hogg, Constitutional Court, May, 1812; see 1 Brev. Dig. 25;) whereas, in Douglas v. Strong, A. D. 1817, at Charleston, the master was held liable to the apprentice for breach of the indenture on his part- Does it follow, that the apprentice is forlorn or poor ? On the contrary, he may be, and is often, richer than his master. It is equally an error to suppose, that the relation is analogous to that parent and child. On the contrary, it is a mere civil contract to serve, upon condition of being taught the trade and art of the master ; and the contract may be infinitely varied by the parties. If the master' were liable for services rendered to the apprentice without request, he would frequently be made liable when he would not have had a physician sent for to his own family. Such liability with the possibility of long chronic diseases, would entirely deter men from taking apprentices ; unless with large premiums, or under great advantages. This would be destructive of the great and general advancement of trades, by the frequent opportunities of binding out poor apprentices. These must make a present sacrifice for a future permanent good ; and, as is observed by Justice Rooke, in the well-considered case of Wennall v. Adney, 3 Bos. & Pul. 246, “it must be left to the humanity of every master to decide whether he will assist his servant, according to his capacity, or not ” In that case it was unanimously decided, that the obligation of the master, if any, to provide medical assistance for his servant, must arise *from contract, not from implication ; and it is observed in that case, that there is no decision to the contrary, to be found, but in some Nisi Prius cases, p. 254. In the questionable one alluded to by the judges, (Scarman v. Castell, 1 Esp. N. P. C. 270,) it is to be remarked, that Lord Kenyon confines the liability of the master to cases where the servant remained under the roof of his master. In Newby v. Wiltshire, 2 Esp. N. P. C. 739, the decision of Lord Mansfield .is against the liability of the master directly; though he humanely observed, that a master ought to take care of his servant in sickness. The case from 1 Strange, 99, and that from Bulstrode, part II, p. 332, have very little application to the point before us. It was not the point before the Court in either of those cases. The case of Wennall v. Adney, and that of Newby v. Wiltshire, stand, then, without opposition among the English cases, and are well supported by the American ease of Dunbar v. Williams, 10 John., 249, where it is decided, that no action lies for attendance on a slave, without request, unless the case was so urgent as to prevent previous application to the master ; which is, surely, aJ stronger case of implied liability. Weighing, then, the question by the authority of past adjudications, as well as by the doctrine of master and servant, there appears little room for doubt.

And as there is nothing in our Acts or Statutes which can affect the case, let us see if there is any thing in the indenture which can do so. This is in the usual printed form, and evidently taken from the common English precedent, used where masters are compelled by statutory regulation to take apprentices. By this indenture, masters are required to instruct the apprentice, and to find .sufficient meat, drink, apparel, washing, lodging, and all other things needful for an apprentice, &c. &c. Upon which precedent, Burn, 1 vol. 116, tit. Apprentice, observes, that “where the overseers and master can agree, other covenants may be inserted, according to such agreement; but if the master is to be compelled, it seemeth not safe to require* more from him by the indenture, than is above expressed.” Now it would be unjust indeed, if a master who is compelled in England against his own will to take an apprentice, were obliged also to have him cured of all disease with which he might be long afflicted. Great impositions might and would follow such a rule; masters would become over cautious and suspicious, to the injury both of trade and of poor children. In the words of Justice Rooke, 3 B. & P. 253, “The contract, on the part of the servant, is merely to serve ; but, on the part of the master, it is varied by numberless stipulations, according to the inclinations of contracting parties.” We must .then construe his covenant by the usual rule applied to the duties specifically enumerated, to wit, “expressio unius est exclusio ulterius.” Those which he has undertaken, he must perform, but if so disposed, he may confine himself to them alone. In the present instance, the law, for the common good, leaves the rest to the master’s moral sense.

The motion is therefore dismissed, and the order of the presiding judge affirmed.

Colcock, Nott, Cheves and Johnson, JJ., concurred.

Gantt, J.

I dissent. An apprentice stands upon a footing entirely different, in this country, from other servants, who act under contracts entered into between them and those whom they serve; they are generally the children of the poorest class of the community, and I think the master is bound, under the spirit of the Act of Assembly' of --, to meet contingent and necessary expenses, as well as by the principles of sound morality. 
      
       3 Brev. 44; 1 Tread. 117.
     
      
       MSS.
     
      
       1740, 3 Stat. 544.
      See 4 MoC. 124; 2 Sp. 416; 2 Brev. 129 ; 1 Strob. 171.
     