1819.

v.

KINNAIRD.

of parliament applies to open boats only. The subBRITTAIN ject matter of this conviction was a decked vessel; and a magistrate cannot, by falsely asserting that to be a boat which is a decked vessel, assume to himself a jurisdiction which the statute does not give him. The question in all cases is, whether or not the person exercising jurisdiction is, or is not, possessed of it. In bankruptcy for instance, where the jurisdiction of the commissioners extends to traders only, if it turn out that the party against whom a commission has been issued was not a trader, the whole proceedings under the commission are coram non judice. Here the defendants had no jurisdiction because the subject matter of the conviction was not a boat; and the plaintiff, by the false assertion of the defendants in their conviction, is not to be precluded from shewing that they had no jurisdiction.

DALLAS, C. J. The conviction on the face of it is clearly regular; and, as it remains unimpeached, it will afford the defendants an answer to the present action, supposing they had jurisdiction over the subject matter of the conviction. That jurisdiction, I think, they possessed under the act of parliament to which reference has been made; and, having exercised it, I am of opinion that their conviction is conclusive, and cannot be controverted in this action.

Plaintiff nonsuited.

Vaughan, Lawes, Serjts., and Curwood, for the plaintiff.

Copley, Serjt., Denman, and Longley, for the defendants.

.1819.

BRITTAIN

v.

KINNAIRD.

168

1819.

OXFORD CIRCUIT.

SUMMER ASSIZES, 59 GEORGE III. 1819.

STAFFORD.

Coram RICHARDSON, J.

An extra col

lector of poor rates, whose

ΤΗ

REX v. WARD.

HIS was an indictment against the prisoner upon the statute 39 Geo. 3. c. 85. for emremuneration bezzling the sum of 11s. the property of the is paid out of churchwardens and overseers of the parish of

the parish fund by a per centage on his

a servant or

collections, is It appeared in evidence, that the prisoner was clerk within appointed as an extra collector of poor rates by the the meaning parish, and that he was paid out of the parish fund: his remuneration, however, was not by a fixed salary, but by a per centage on his collections.

39 Geo. 3. c.

85.

Sir William Owen and Twiss, for the prisoner, contended that he was not a servant or clerk within the meaning of the statute :-but

RICHARDSON, J. over-ruled the objection.

In the indictment it was alleged that the prisoner received on the account of his employers the sum of 11s. "and so that he stole, took, and carried away 11s. of their monies."

The evidence adduced in support of this allegation was, that the prisoner had received in payment of the 11s. a one pound note in exchange for which he had given 9s. being the difference.

RICHARDSON, J. ruled that the averment in the indictment that the prisoner had stolen the 11s. was not sustained. This case, his Lordship observed, stood as it would have done at common law. The conversion of the 11s. by the prisoner to his own use would not have been a larceny at common law, since it was never in the possession of his employers; and the statute did not in this instance apply. The statute only made it a felony in a servant or clerk who should fraudulently embezzle any money, &c. received or taken into his possession, for, or in the name, or on the account of his master or employer. Here the note was not received by the prisoner on the account of the prosecutors; but for the purpose of convenience to the party who had to make the payment and, as the consideration for the receipt of it, he was to pay to his employers the sum due to them, and to the payer the difference. The prosecutors, therefore, neither had an actual nor a constructive possession of the note; and, consequently, an indict

1819.

REX

v.

WARD.

An allegation in an indictment, that the

prisoner received on account of his employers! the sum of that he stole,

1 rs." and so

&c." the 11s.

is not supported by evidence that he received a

bank note out of which he

gave 9s. to the person paying

him.

1819.

REX.

v.

WARD.

ment could not be sustained either at common law, or under the statute.

The prisoner was acquitted on this, but was convicted on another indictment.

Sir William Owen and Twiss, for the prisoner.

It was admitted, that there was no other manner in which to have laid the fact of the receipt of the money, so as that the statute could have attached upon it.