Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Innes and Stewart v. Dr Chalmers
Date: 8 July 1704
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Innes and Stewart pursue Mr Chalmers, Doctor of Medicine. at Aberdeen, for payment of two legacies left to them by Robert Irving, their near relation, by his testament, wherein the said Doctor is named executor and universal legatar; and, after long debate, they having obtained decreet against him, they gave in a bill to the Lords, craving 550 merks of expenses which he had, by his calumnious contention, most unnecessarily put them to.
Answered,—He never refused to pay; but was not in tuto, the same being arrested in his hands; and that he offered to assign them to the inventory, on their loosing this arrestment, and paying what was owing to himself, for furnishing drugs and attending the defunct, and the expense of the confirmation.
Replied,—He had procured that arrestment of purpose to detain their money; and had advocated the cause from the Commissary of Aberdeen; and made all the shifts imaginable, though they offered to let him keep as much as would purge the arrestment.
The Lords remitted to the Ordinary in the cause, to hear the parties on the modification of the expenses. And they were the more inclined to it in this case, that they remembered, some years ago, this same Doctor Chalmers was pursued for having foisted himself in to be executor in a dying man's testament; and thought it a dangerous preparative, if physicians were allowed to impose on their sick diseased patients, either to extort legacies, or to procure themselves named executors. And, though there was no law making them incapable of receiving donatives from dying people, yet it were fit such a practice were prevented; and, that the common law takes notice of it, (Vid. Accurs. ad l. 3. D. de Estr. Cognit. et. l. 6. C. de Postul. et Vinn. ad l. 9. C. de Medic.) that a physician ought not to make any bargains or contracts of sale with his patients whom he has under cure, ob timorem ne omnia concedant; which prohibition extended also to governors of provinces, to prevent their extortion and concussion. The wise historian, Philip de Comines, in his life of Lewis XI. of France, tells how miserably he was overawed, in his last sickness, by his principal physician; who threatening to desert him, and that he should not live twenty-four hours after, he advanced his friends to many great offices, and gave himself vast sums of money.
