A report of the trial of Cooper v. Wakley, for an alleged libel, taken by shorthand writers employed expressly for the occasion : with an engraving of the instruments, and the position of the patient / together with B. Cooper's "Prefatory remarks" on the evidence, and a copious explanatory appendix, by Thomas Wakley.

Date:
1829
Catalogue details

Licence: Public Domain Mark

Credit: A report of the trial of Cooper v. Wakley, for an alleged libel, taken by shorthand writers employed expressly for the occasion : with an engraving of the instruments, and the position of the patient / together with B. Cooper's "Prefatory remarks" on the evidence, and a copious explanatory appendix, by Thomas Wakley. Source: Wellcome Collection.

Provider: This material has been provided by The University of Glasgow Library. The original may be consulted at The University of Glasgow Library.

    18/174 (page 10)
    Lord Tenterdcn—We\], never mind that. What are the cases ? Mr. Wakley—The first is Hodges v, Holden, in 3d Campbell's Reports, page 366. The declaration was in the usual form, for breaking and entering plaintiff's closes, and, with horses and carriages, treading down the grass and subverting the soil, &c. The defendant pleaded as to coming with force of arms, and whatever else was against the peace of our Lord the King, not guilty ; and as to the residue of the trespasses, a right of v?ay ; which was traversed by the replication, and thereupon issue was joined, h Lord Tenterde7i—The defendant was allowed to begin. > Mr. Wakley —He was, my Lord. The other is in 2d Starkie, page 518, and is the case of Jackson v. Hesketh — Practice as to opening and replying of counsel in trespass. Trespass for breaking and entering the plaintiif's close. The plea ran thus: And the said Thomas Hesketh, by T. U., his attorney, comes and defends the force and injury, when, &c.; and as to the force, and arms, and whatever is against the peace of our said Lord the King, saith, that he is not guilty, in manner and form as the said plaintiff hath above thereof complained against him; and of this he puts himself upon the country. Lord Tenterden —There was some other plea—a right of way, I think. Mt. Wakley —Yes, my Lord, there was. And for a further plea in this behalf, as to the breaking and entering the said closes of the said plaintiff; and with feet in walking, treading down, trampling upon, consuming, and spoiling the grass and corn of the said plaintiff there growing and being in the said close, &c.; and then proceeded to justify the alleged trespass, under a public right of way, upon which issues Avere joined. Lord Tent or d 671—The defendant was allowed to begin? Mr. Wakley—Yes, my Lord. Lord Tenterden—Very well, that is sufficient for the purpose. Mr. Wakley — My Lord, there is yet a case more strong, perhaps, than either of these two, in which the opinion of Mr. Justice Bayley was relied upon, who said that the question of damage did not arise until after the issue had been tried; and when these gentlemen state, that where the damages are certain the plaintiff has a right to begin, yet I beg to say it does not appear to me that there will be damages given in this case at all, and therefore I hope the practice of the Cdurt will not now be reversed, and that I shall be allowed to commence, as in the cases I have already quoted. The other case is in Ryan and Moody, page 293, Bedell v. Russell. It was an action of assault and battery, and a plea of justification only; and, if your Lordship will permit me, I will read the observation of Chief Justice Best: — But, for the authorities cited, I should certainly have thought that the onus of proving the damages sustained gave the plaintiff a right to begin ; but as it is of the utmost consequence that the prac- tice should be uniform, I shall consider myself bound by those cases, until the matter shall be settled in full Court. Now, I am informed, my Lord, that a full Court has not yet decided against the decisions laid down in these cases; and as I trust your Lordship will agree with Chief Justice Best, that it is of the utmost importance the practice of the Court should be uniform, I hope your Lordship will decide that I have a right to commence. Sir James Scarlett—My Lord, the question I propose to your Lordship is, that upon these pleadings the affirmative issue is not of necessity cast upon the defendant. To that he has made no answer; he has only cited cases to show that the party is to begin, upon whom an affirmative issue is cast. Now, if this issue were taken in the literal sense, undoubtedly it would turn out that he is to prove w^ant of skill; but there are a great many cases on which the question turns merely on the construction of language; whether a man is dead