besides the apothecary first proposed sending for Baker; the plaintiff was in no pain before they extended his leg, and he only sent to Stapleton to have the bandage taken off: the Lord Chief Justice asked the Jury whether they intended to find the damages against both the defendants, and they found £500 against them jointly, and he said he was well satisfied with the verdict.
It was now moved that the verdict ought to be set aside because the action is upon a joint contract, and there is no evidence of a joint undertaking by both defendants; the plaintiff sends for Stapleton to take off the bandage who declines doing it, and says, I do not understand this matter, you must send for a surgeon; accordingly Mr. Baker is sent for, who enters upon the business as a surgeon unconnected with Stapleton, who, it does not appear, ever undertook for any skill about the leg, so the jury have found him guilty without any evidence. That Baker has been above twenty years the first surgeon in St. Bartholomew's hospital, reads lectures in surgery and anatomy, and is celebrated for his knowledge in his profession as well as his humanity; and to charge such a man with ignorance and unskilfulness upon the records of this court is most dreadful; all the witnesses agreed Mr. Baker doth not want knowledge, therefore this verdict ought not to stand. 2dly, It was objected that the evidence given does not apply to this action, which is upon a joint contract; the evidence is that the callous of the leg was broke without the plaintiff's consent; but there is no evidence of ignorance or want of skill, and therefore the action ought to have been trespass vi & armis for breaking the plaintiff's leg without his consent; all the surgeons said they never do any thing of this kind without consent, and if the plaintiff should not be content with the present damages, but bring another action of trespass vi & armis, could this verdict be pleaded in bar? the court without hearing the counsel for the plaintiff gave judgment for him.
Curia: 1st, It is objected that this is laid to be a joint undertaking, and therefore it ought to be proved, and we
