Subject_1 IMPLIED CONDITION. Subject_2 SECT. VIII.
Obligations, or Renunciations, granted upon an expectancy disappointed, or upon the supposition of a fund of payment of which the party is afterwards deprived.
Dr Robert Trotter v. Captain John Telfer
Date: 24 December 1708 Case No. No 46.
A bond bearing for borrowed money, and renouncing all exceptions in the contrary, sustained, though it was granted for the cure of a disease, and the debtor offered to prove, that it was not effectually cured, but broke out, after granting the bond, worse than ever, through the creditor's negligence.
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Dr Trotter having charged Captain Telfer for payment of a bond of L. 10 Sterling, he suspended, upon this reason, that the bond was granted for the cure of a malady the suspender laboured under, which was ineffectual by the Doctor's negligence, in not overseeing the dispenser of the medicaments, and by misapplication in the quantity of these medicaments.
Answered for the charger; 1mo, If physicians should be called in question for their pretended misapplications, every unfortunate accident upon a patient's health would be a pretence for repetition of physicians fees, which is as absurd as to repeat a lawyer's fees when the cause is determined against his client. 2do, The bond charged on bearing for borrowed money, and renouncing all exceptions in the contrary, and being delivered after performing of the cure, the suspender could not recur to allege upon any pretended misapplications, &c. whatever he might have done before.
Replied for the suspender; 1mo, It is true physicians are seldom quarrelled for their misapplications and faults, the grave buries many of these, and many physicians have that regard to their own, and their patient's credit, as not to bring questions of this kind before any judicature; but, it is as true, physicians are tied to the laws, and the great trust these have of mens lives, requires more diligence than in other offices, L. 18. Pr. L. 44. D. Ad L. Aquiliam. The case of an advocate is not the same, who may not be to blame when the Judge determines against his client; and yet, if he were grossly negligent, there is no reason for his getting an honorary. 2do, It doth not alter the case, that the bond was granted after the cure was thought to be performed, when it was not, since ignorantia facti nocet nemini.
