are of opinion that it ought; the question therefore is, whether there is any evidence of a joint undertaking; we are of opinion there is; Mr. Stapleton declines acting alone, but in concurrence with Mr. Baker attends the plaintiff every time any thing is done, and assists jointly with Mr. Baker; this appears in evidence, and is sufficient, for there is no occasion to prove an express joint contract, promise or undertaking; when an offer is made to Baker of a guinea, Stapleton says, you had better be paid all at last; they both attended plaintiff together every time, and Stapleton said, we have consulted and done for the best; when the plaintiff complained of what they had done, Stapleton considered himself as one of the persons to join in the cure of the leg, for he put his hand on the knee when Baker nodded, and then the bone cracked; he is the original person aiding in this matter, and there is no ground for this objection. When we consider the good character of Baker, we cannot well conceive why he acted in the manner he did; but many men very skilful in their profession have frequently acted out of the common way for the sake of trying experiments; several of the witnesses proved that the callous was formed, and that it was proper to remove plaintiff home; that he was free from pain and able to walk with crutches; we cannot conceive what the nature of the instrument made use of is; why did Baker put it on when he said that plaintiff had fallen into good hands, and when plaintiff only sent for him to take off the bandage, it seems as if Mr. Baker wanted to try an expedient with this new instrument.
2dly, It is objected that this is not the proper action, and that it ought to have been trespass vi & armis; in answer to this, it appears from the evidence of the surgeons that it was improper to disunite the callous without consent; this is the usage and law of surgeons; then it was ignorance and unskilfulness in that very particular, to do contrary to the rule of the profession, what no surgeon ought to have done; and indeed it is reasonable that a patient should be told what is about to be done to him, that he may take courage and put
