922 EASTER TERM, 7 WILL. 3. 1LD. RAYM. 39.

GIBBONS vers. PEPPER.

[See Stanley v. Powell [1891J, 1 Q. B. 90.]
S. C. 4 Mod. 404. Salk. 637, cit. 3 Wils. 411.
Every justification must confess a cause of action. Therefore a plea to an action of
assault and battery that the defendant was on horseback, and his horse on a
sudden fright ran away with him, that he called to the plaintiff to get out of the
way, and upon his neglect the horse ran over him against the defendant's will,
is bad.
Trespass, assault and battery. The defendant pleads, that he rode upon a horse
in the King's highway, and that his horse being affrighted ran away with him,
persons standing in the way, among whom the plaintiff stood ; so that he could not
stop the horse; that there were several persons standing in the way, among whom
the plaintiff stood; and that he called to them to take care, but that notwithstand-
ing, the plaintiff did not go out of the way, but continued there; so that the defen-
dant's horse ran over the plaintiff against the will of the defendant; qua est eadem
transgressio, &c. The plaintiff demurred. And Serjeant Darnall for the defendant
argued, that if the defendant in his justification shews that the accident was inevit-
able, and that the negligence of the defendant did not cause it, judgment shall be
given for him. To prove which he cited Hob. 344, Weaver vers. Ward. Mo. 864,
pi. 1192. 2 Roll. Abr. 548. 1 Brownl. Prec. 188.
Northey for the plaintiff said, that in all these cases the defendant confessed a
battery, which he afterwards justified; but in this case he justified a battery, which
is no battery. Of which opinion was the whole Court; for if I ride upon a horse,
and J. S. whips the horse, so that he runs away with me and runs over any other
person, he who whipped the [39] horse is guilty of the battery, and not me. But if
I by spurring was the cause of such accident, then I am guilty. In the same manner,
if A. takes the hand of B. and with it strikes C, A. is the trespasser, and not B.
And, per Curiam, the defendant might have given this justification in evidence, upon
the general issue pleaded. And therefore judgment was given for the plaintiff.