[Littledale, J. That case does not at all turn upon the manner of pleading.] Excess is affirmative matter, and must be averred by replication. Upon these pleadings the plaintiff was entitled to judgment for the whole matter or none. [Williams, J. The defendant having failed to prove all the facts in the plea, which were necessary to justify the trespass complained of, is not the plaintiff entitled to damages? Can you make it a ground of complaint, that the part of the trespass which was in fact justified, was withdrawn by the learned judge from the consideration of the jury? Lord Denman, C.J. There are clearly two distinct sets of facts complained of, and two distinct parts of the justification. The possession of the house was a justification of one only, and therefore in respect of the other, which was not justified, the plaintiff was entitled to damages.] It was all done at once, and constituted but one trespass-not justified to the full extent, it is admitted-but still it was but one act of trespass. [Littledale, J. You are bound to prove the whole of the allegations in your plea, or so much of them as constitutes a defence to the action. This you have failed to do. Williams, J. Spilsbury v. Micklethwaite (a) decides, that where two facts are pleaded, which are equally of themselves defences to the action, proof of one is sufficient. But here, the assault which you failed to prove, was a necessary part of the defence. You have not supported your plea. Littledale, J. It was incumbent on you to prove the assault, in order to shew that you were warranted in imprisoning the plaintiff. Until you have proved the allegations in the plea, you cannot raise the question of excess.] 1835. REECE บ. TAYLOR and another. Per CURIAM Rule refused. (a) 1 Taunt. 146. 1835. This Court will not issue a mandamus to compel magistrates to The KING V. HALL and DYER, Esquires. A Rule nisi for a mandamus was obtained, commanding Messrs. Hall and Dyer, two justices of the peace for Middlesex, to make and issue their warrant of distress against the goods of James Veale, to enforce payto enforce the ment of a poor-rate for the parishes of St. Giles in the Fields and St. George, Bloomsbury, in respect of his receipt of the rent of certain houses. issue a distress-warrant payment of poor-rates, where it is doubtful whether the war By 11 Geo. 4, cap. x. for the regulation of the affairs rant would be of the two parishes, a vestry was reconstituted. By legal (a), and the rates are section 88, all rates were to be paid by the tenant or recoverable occupier; and if any tenant, occupier, or any other perby another mode of pro- son made liable to pay any rate, should refuse or neglect ceeding. Where, by to pay the same after demand made, payment of the a local act for rates might be enforced by distress. By section 92, the the government of a pa- lessors, landlords, and owners of all houses, &c., the rish, collectors yearly assessment or valuation whereof should be less than 30l., or which should be let at rents which should become payable or be collected at any period shorter than quarterly, and in certain other cases, were to be rated and pay the rates in respect of such houses, &c. By section 95, to prevent any dispute touching the dethan 304," are signation of lessors, landlords, or owners of houses, made liable to buildings, &c. intended to be made liable to the payment of any rate, the persons authorized to receive or collect the rents of any houses from the tenants or oc of the rents of houses, &c. within the pa rish, "the yearly assess ment or valuation whereof respectively shall be less be rated, and compellable cupiers thereof were to be deemed and taken to be the lessors, landlords, or owners of such houses, &c. for the the collector would extend only to cases in which the real, and not the assessed value of the houses respectively, &c. is under 30l. (a) And see Rex v. Justices of Bucks, 2 Dowl. & Ryl. 689, and 1 Barn. & Cressw. 485; Underhill v. Ellicombe, Macl. & Younge, 450; Fawcett v. Foulis, 1 Mann. & Ryl. 102, and 7 Barn. & Cressw. 394; Rex v. Justices of Bucks, ante, vol. ii. 37. purposes of that act, and to be liable to be rated, and to be compellable to pay the rates, in all cases in which either lessors, landlords, or owners, were by that act made liable to be rated and to be compelled to pay such rates, unless the real lessors, landlords, &c. should declare themselves, and should voluntarily pay such rates as aforesaid, or should be distinctly or certainly known to be such by the vestrymen. By section 95, the goods of all persons occupying any houses, &c. liable to the payment of the rate, wherever the lessors, landlords or owners were, by that act, made liable as aforesaid, were to be liable to be distrained upon for any rates accruing during the occupancy of such persons respectively, although such persons were not rated under that act. By section 96, in default of payment of any rate in respect of any houses assessed at less than 301., &c. the same was to be a charge upon such houses, and might, after fourteen days' notice, be recovered from the landlord or owner by action of debt. A rate was made upon Veale as the collector of the rents of fourteen houses in various streets, &c. in St. Giles's, which houses are part of an estate consisting of 150 houses, called Spencer's estate. Mr. Spencer, a gentleman residing in Wales, was seised in fee of these houses, and Veale was the collector of his rents. One of the vestrymen was a tenant of another part of Mr. Spencer's estate, and was aware that Mr. Spencer was the owner of the 150 houses and that Veale was only his collector. All the houses were assessed at less than 301. a year, but six of them were actually let for upwards of 401. a year. Six others were let at rents under Sol., but the rent was payable quarterly, the tenants undertaking to pay all the parochial taxes. Veale had paid over to Mr. Spencer all the rents collected by him. An application having been made to Messrs. Hall and 1835. The KING บ. HALL and 1835. The KING υ. HALL and Dyer, to issue their warrants to enforce the payment, by Veale, of the rates upon the said houses, they refused to do so. The Court Sir John Campbell now shewed cause. will not compel magistrates to issue a warrant for enforcing the payment of rates, if there be another mode of recovering them, or if it is doubtful whether the warrant would not be illegal. The warrant here would be illegal on two grounds:-First, the section limits the liability of collectors of rents to cases in which the yearly assessment or valuation is less than 30l., and to certain other cases. Some of the houses in question are let for more than 30l. a year, and therefore are not, it is submitted, within the limits of the clause, notwithstanding that the amount at which the vestry have thought proper to assess them falls short of that sum. Secondly, the liability of the collectors of rents is further limited, by section 93, to cases in which the landlord is not known to the vestry. In this case the landlord must be taken to have been known to the vestry, as one of the vestrymen, who was indeed the chairman of the vestry, was aware that these houses belonged to Mr. Spencer, and that Veale was only his collector. There is in this case another mode of recovering these rates. By section 96, the rate is to be a charge upon the premises, and after fourteen days' notice may be recovered, by action of debt, from the landlord. Thesiger and Adolphus, in support of the rule. If it appear to the Court that these rates are clearly recoverable by a distress warrant, the Court will put the law in motion, and issue a mandamus. By section 88, if any tenant, occupier, or any other person made liable to pay any rate, shall refuse to pay, a distress-warrant may be issued. It is obvious, from the language of this section, that some other person besides the tenant or occupier is liable to be distrained upon for these rates. By section 92, the owner is to be liable where the yearly assessment or valuation is under 301. It is therefore immaterial what the rent is. By section 93, the collector of the rents of such properties is to be treated as the owner, unless the owner is known to the vestry. The owner in this case was unknown to the vestry, notwithstanding that he appears to have been known to one of the vestrymen. Veale, as collector, was consequently liable to be rated. But it is said that there is a remedy by action of debt. Is that an exclusive or is it a cumulative remedy? The 95th section shews that it was only intended as one of several cumulative remedies, as it also expressly makes the goods of the occupier liable to be distrained for rates which have become due during his Occupancy. Looking at the several clauses of this act, there can be no doubt but that a distress warrant might legally have issued against Veale; and therefore the Court will make the rule absolute. Lord DENMAN, C. J.-This is a very large and extraordinary power that is given to the parish, to call on collectors of rents for the payment of the rates. I think there may be very good sense in making these collectors, who actually have the profits of the estates in their hands, liable to pay the rates to the parish: but before the Court can compel the issuing of a warrant of distress on the goods of the party, we must see very distinctly indeed that the act gives that authority. I confess I very much doubt, upon all the points in this case, whether that authority is given. I have some doubt whether, when it is said "assessed at 307.," the meaning was not "assessed on a rent of 30l." I have some doubt 18S5. The KING บ. HALL and |