Report of the trial, Cooper versus Wakley, for libel / from the notes of W.B. Gurney ; with remarks on the evidence, by Bransby B. Cooper.

  • Cooper, Bransby Blake, 1792-1853.
Date:
1829
Catalogue details

Licence: Public Domain Mark

Credit: Report of the trial, Cooper versus Wakley, for libel / from the notes of W.B. Gurney ; with remarks on the evidence, by Bransby B. Cooper. Source: Wellcome Collection.

Provider: This material has been provided by The Royal College of Surgeons of England. The original may be consulted at The Royal College of Surgeons of England.

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    than was necessary or proper, or than a skilful surgeon would have occupied in that behalf, and that Plaintiff then and there performed the said operation in an unskilful and unsurgeon-like manner, and did then and there, by such unskilfulness, cause the said patient a much greater degree of pain than he would otherwise, and but for that cause, have incurred. Lord Tenterden.—That is in the third plea ? Sir James Scarlett—Yes, my Lord— And but for that cause have in- curred, and that it was and is doubtful and questionable whether the death of the said patient was caused by such unskilfulness as aforesaid.—No one of the pleas is a good plea. Lord Tenterden.— That the Plaintiff performed the operation of litho- tomy, and therein occupied a longer space of time, to wit, fifty minutes. That is an affirmative allegation that he occupied a longer space of time than was necessary ? Sir James Scarlett.—That is either affirmative or negative. Lord Tenterden.— Or proper or than a skilful surgeon would have oc- cupied in that behalf, and that the Plaintiff performed the operation in an unskilful and unsurgeon-like manner, and did then and there by such unskil- fulness, cause the patient a much greater degree of pain and suffering than he would otherwise.—What does the Defendant say ? Sir James Scarlett.—I would add that this is peculiarly a case in which the damages are unliquidated. Lord Tenterden.—I do not understand that you propose to offer any special evidence of damage; indeed till the issue is tried, the question of damages does not arise. Sir James Scarlett.—If your Lordship casts your eye over the pleas, you will see no one is good. Lord Tenterden.—That I cannot say, sitting here now. If they had been demurred to sitting where I do now, I might have had to give an opinion. Mr. Pollock.—Will your Lordship allow me to say one word upon the discussion that took place at Guildhall the other day ? It may be recollected it was held that whenever the question of damages is clear and certain, and where the Court would refer it to the Master, as upon a bill of exchange, then if the affirmative be upon the Defendant he would be entitled to begin, but where the damages are unliquidated and at large, and not depending upon the nature of the pleadings, but upon the evidence to be given, that the Plaintiff has a right to begin. Mr. Wakley.—My Lord, I have three cases before me, that, I believe, will at once entitle me to open this Cause, and I am happy certainly in this case to have the opinion of Sir James Scarlett on my side; he was Advocate in this Cause in the book now before me. Lord Tenterden.—Never mind that. Mr. Wakley.—The first is in 3d Campbell, the case of Hodges v. Holder, page 366 ; Declaration in the usual form, for breaking and entering Plain- tiff's closes, and with horses and carriages treading down the grass, and sub- verting the soil, &c. The Defendant pleaded as to coming with force of arms, and whatever else was agaiust the peace of our Lord the King, not guilty, and a3 to the residue of the trespasses, a right of way which was tra- versed by the replication, and thereupon issue was joined. The pleadings