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
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.
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![1^ an autliority, and as I believe I now have the opportunity of consulting two of iny learned brothers of the Court, I shall have their sanction before rdecide iis^ l'* ' [Lord Tenterden now retired to consult witb two of the other learneo. Judges, who were in an adjoining Court. His Lordship returned iii pbbuf ten minutes, and expressed himself to the following eifect]:— /I-?- I am of opinion, that the defendant in this case has a right to b^gi'ii'. 'T^^^ general rule has been established by many cases, that the party on whom thp affirmative lies, is the party first to begin. That rule was established in ncianV cases, in which unlimited damages were sought at the hands of the jury, ''jf remember the case of Beddell v. Russell very well, which was a case of tre's- pass, where the damages sought to be recovered were unlimited, and which would therefore be for the consideration of the jury, if the defendant had not proved his case. It has been said in this particular case, there is an affirma- tive incumbent on the plaintiff, aud if that were so, that it would take the case out of the general rule, or rather bring it within another rule, the rule that the', party to begin would be the plaintiff, provided there was any matter affirmative in these issues, and which the plaintiff was bound to prove : but upon reading ihem, it appears to me there is nothing to that effect. The plaintiff must be pre-, sumed to be skilful until the contrary is made out, for every party is to be presumedf to be able to discharge his duty in his profession, whatever that may be, until the contrary is shown ; no man is to be supposed to have misconducted himself;) and therefore, until the contrary is made out, the plaintiff is to be presumed 'io have conducted himself properly: well then, when the defendant says that He- employed a much longer time than was necessary or proper, or than a skilfiiF surgeon would have occupied, it appears to me, that the onus is on the' defendant to make out that he did. When the defendant alleges that the. plaintiff performed the operation in an unskilful and unsurgeon-like manner,' it is incumbent on the defendant to prove that the operation was performed l^: an unskilful and unsurgeon-like manner; so Avhen he alleges, that by sucli unskilfulness the said patient was caused a much greater degree of pain and- suffering than would otherwise have been caused, it is incumbent on him to prove that. And so with respect to all the rest; and we need not go throuo'h all the other parts, for they appear to me to be all of the same nature. The view I take of it is, that it is incumbent on the defendant to make out the truth of these allegations by evidence on his part; and that until he has done that, the plaintiff IS not called upon to give any evidence on the subject. Sir James Scarlett. My Lord, I am very willing to acquiesce in this, as 'tf am at all times in your Lordship's decision, whatever that decision may be ^ but there IS one consequence that follows from this decision,- and which 1 to lay before you now, in order to do justice to my client : suppose that happbii^' that may happen that this gentleman's case, if he attempts to make it, shaU fall to pieces, I shall then take the liberty of insisting, on behalf of a ^^^^ who has been caiumniated in the grossest manner, that his evidence mat ^ heard ; tor the purpose of proving satisfactorily and fully that the operation was performed with the utmost possible skill under the circumstaiic'6#ktia'f shall not be sat:.3fied to leave this Court, appearing as I do on behalf ^of a'geri^ tleman of high honour and great reputation in his profession, to have it said^5 that because some particular part of a plea was not proved, therefore the lendant s case was not proved, and the plaintiff succeeded. No; when a maii'^ ventures to publish a libel, and then comes forward to justify it, surely tS^ f Cve thf . r 'PPr^^'^ .^ '^Sing forward h'is eviince, S case Tf the d. 'T^^^^^^^ l^ is removed, and which will n^t be th^^ case, It the defendant, after having failed to make out his case, could say, yo^*](https://iiif.wellcomecollection.org/image/b21460875_0025.jp2/full/800%2C/0/default.jpg)
