_Curia_: 1st, It is objected that this is laid to be a joint undertaking, and therefore it ought to be proved, and we 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 the 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 himself in such a situation as to enable him to undergo the operation; it was objected this verdict and recovery cannot be pleaded in bar to an action of trespass _vi & armis_ to be brought for the same damage; but we are clear of opinion it may be pleaded in bar. That the plaintiff ought to receive a satisfaction for the injury, seems to be admitted; but then it is said the defendants ought to have been charged as trespassers _vi & armis_; the court will not look with eagle’s eyes to see whether the evidence applies exactly or not to the case, when they can see the plaintiff has obtained a verdict for such damages as he deserves, they will establish such verdict if it be possible. For any thing that appears to the court this was the first experiment made with this new instrument, and if it was, it was a rash action, and he who acts rashly acts ignorantly; and although the defendants in general may be as skilful in their respective professions as any two gentlemen in _England_, yet the court cannot help saying that in this particular case they have acted ignorantly and unskilfully, contrary to the known rule and usage of surgeons.