
    J. R. Johnston, et ux. v. Jacob Barrett.
    The master is liable for medical or surgical assistance rendered to his slave, when the latter was in extreme peril, by a person called in, at-the instance of the slave, without the knowledge or consent of the master: and it makes no difference, that the master, in anticipation of such assistance being necessary, had directed the 'slave to engage the services of another person, who whould, have afforded them on cheaper terms; if no such person were in- attendance when the-services were needed.
    Before Mr. Justice Martin, at Columbia, Fall Term,-183-1-,,
    This was an appeal from the judgment of Benjamin Rawls, Esquire, a Justice of the Peace, in a suit brought before him to recover a demand for services, rendered by the wife of the plaintiff, in her profession of midwife, to the defendant’s slave. The defendant had left the slave in charge of his brother, who, in anticipation of the confinement of the slave, had directed her to engage the services of a coloured midwife, designating one or two to whom she might apply: but the woman engaged the services of the plaintiff’s wife, by whom she had been attended on a former occasion. The latter did not communicate with the defendant, or his agent, on the subject; but-it appeared in evidence, that it was not usual to communicate with the master in such cases. She was afterwards sent for during a dark and stormy night in January, and on her arrival found the slave very ill. No other professional person was present, and she rendered the assistance, requisite in such circumstances. The plaintiffs demanded $10, which was proved to be the usual charge. On the other hand it appeared that the usual charge of coloured midwives was only $4; and the defendant offered to pay five dollars.
    The Magistrate was of opinion, that the plaintiffs were in-titled to recover the whole of their demand. The siave cannot, it is true, bind the master by a contract, made without his knowledge or consent; but here was a case in which the life of the slave was in great danger, and was probably saved by means of the services rendered by the plaintiff’s wife. It was reasonable and just,therefore, that the master should pay for them: and if so, he must pay the price which the plaintiffs usually charged in such cases. The defendant might have had a similar service rendered by other persons on cheaper terms ; but it was his own business to look to it, and to see that the requisite assistance was at handj when it was needed. As he had not done so, he was bound to pay Jhe price of the plaintiff’s services. Judgment for the plaintiffs.
    The defendant appealed, on the ground, that a slave cannot bind the master by any contract, or act, unauthorized by him.
    The presiding Judge sustained the appeal, and reversed the judgment of the magistrate, on the authority of Wells v. Kennedy, 4 M’C. 123.
    The plaintiffs now moved to reverse the judgment of the Circuit Judge, as contrary to law.
   Johnson, J.

delivered the opinion of the Court.

The question submitted is not without difficulty; but after bestowing on it some consideration, I am disposed to concur in the opinion of Mr. Rawls, that the defendant is liable to the plaintiffs’ demand. The general rule, very clearly is, that the master is not liable for the contract of his slave made without his consent or authority : but Judge Reeve in his treatise on domestic relations, page 367, remarks, that the master may be liable for the contract of his servant, where the facts are such, that justice dictates that the master ought to fulfil it; and the law, therefore, raises the promise, and compels him to do so against his will. The illustration, which he gives of this exception, (see page 369,) is the case of the servant purchasing goods on the credit of the master without his authority, and which after-wards come to the use of the master. This, he remarks, is usually regarded as presumptive evidence of the subsequent assent of the master, but that the true principle of his liability, is the moral'and equitable obligation which it imposes; and that he is liable notwithstanding that the presumption is repelled by the most unequivocal declarations that he will not pay.

The cases of Wells v. Kennedy, 4 M’C. 123, and Dunbar v. Williams, 10 Johns. 249, were both by physicians against the owners for medical attendance on slaves ; and whilst they maintain the general rule, they admit as exceptions those instances, in which the emergency of the case, and the impracticability of consulting the will of the owner, would intitle the physician to be paid by the owner. Cases of this sort, must necessarily be very rare, and I cannot myself perceive the great danger of allowing the exception to obtain. If a slave is in peril in the absence of his owner, the interest of the owner is most effectually subserved by rendering assistance to the slave; and in good conscience the owner is bound to make satisfaction. In addin tion to this, the case in hand is peculiar. The situation of the defendant’s slave was that which is generally one of extreme peril, requiring instant aid ; and if that was the situation of the defendant’s slave at the time Mrs. Johnston, the plaintiff, was called in, and such I understand it was from the justice’s certificate, she was within the exception, and was intitled to recover. I am therefore of opinion, that the order of the Circuit Court reversing the justice’s judgment, should be reversed, and that his judgment be affirmed : and it is so ordered. -

O’Neal i,, J. concurred.

Earle, J. sitting for Harper, J. also concurred.

Motion granted.  