within the exemption in the Stamp Act, 55 Geo. 3, c. 184, Sched. Part. 1.

Lord CAMPBELL C. J.-Why is not the prisoner a labourer?

Phinn. Under the Statute of Additions it would be a good addition. I submit that he was a labourer, and therefore, that, the agreement being within the exemp tion in the Stamp Act, it was admissible in evidence without a stamp.

No Counsel appeared for the prisoner.

Lord CAMPBELL C. J.-I am of opinion that this conviction ought to be supported. Assuming (a) that this instrument, if it had created a partnership, would not be receivable in evidence in a criminal case without a stamp. I think that it would, even in a civil action, be admissible unstamped, it being within the exemption in the Stamp Act, as an agreement for the hire of a labourer. The second question is, did this instrument create a partnership, or did it create the relation of master and servant? It did not create a community of profit and loss; inter se, the prosecutor and prisoner were not partners. and I am of opinion that the prisoner was a labourer and not a partner. The third question reserved for us is. whether the denial of the receipt of the money by the prisoner under the circumstances mentioned in the case amounted to embezzlement. There is abundant *340] authority to shew that a denial of, or not accounting for, the receipt of money under such circumstances, constitutes the offence of embezzlement.

(a) In the course of the argument the Lord Chief Justice, referring to the cases collected in Roscoe's Crim. Evid., ed. Granger, p. 211, expressed an opinion that in some future bill for the improvement of the criminal law it would be worthy of consideration whether it would not be desirable to render documents admissible in evidence in criminal cases unstamped.

ALDERSON B.-I think that the prisoner was not a servant, but that he was a labourer.

PLATT B., TALFOURD J., and MARTIN B. concurred.

REGINA v. THE INHABITANTS OF THE TOWNSHIP

OF WAVERTON.

After verdict, defective averments in the second count of an indictment may be cured by reference to sufficient averments in the first count.

THIS was an indictment for a nuisance in not repairing a highway, found at the Cumberland Summer Assizes, A. D. 1850. It was removed by certiorari into the Queen's Bench, and was tried at the Summer Assizes for the county of Cumberland, held at Carlisle, before Mr. Justice WILLIAMS, on the 5th of August, A. D. 1851. The indictment contained three counts:

1st Count. The jurors for our Lady the Queen upon their oath present that before the day of the taking of this inquisition to wit on the first day of January in the thirteenth year of the reign of her present Majesty and long before there was and from thence hitherto hath been and still is a certain common Queen's highway in the said county used for all the subjects of our said Lady the Queen to go return pass repass ride and labour on foot and on horseback and with cattle carts and carriages at their will and pleasure and that a certain part of the said last-mentioned common Queen's highway situate lying and being in the township or district of Waverton otherwise called Waverton High and Low in the parish of Wigton in the county aforesaid called the Yevens Highway leading from and out of the highway from the village of Waverton towards the town of

[*341

Mary-port in the county aforesaid at or near a place called Parkside on the last mentioned highway and extending from thence towards and unto the highway leading from Lesson Hall towards the town of Ireby in the county aforesaid at or near Waterside in the township or district of Waverton aforesaid and containing in length 1350 yards or thereabouts and in breadth four yards or thereabouts on the day and year aforesaid and from thence continually hitherto until the day of the taking of this inquisition at the parish and in the township or district last aforesaid in the county aforesaid was and is yet very ruinous miry deep broken and in great decay for want of due reparation and amendment of the same so that the liege subjects of our said Lady the Queen during the time last aforesaid could not go return pass repass ride and labour with their horses cattle carts and other carriages in through and along the Queen's common highway aforesaid as they ought and were wont and accustomed to do without great danger of their lives and the loss of their goods to the great damage and common nuisance of all her Majesty's liege subjects going returning passing repassing riding labouring in through and along the Queen's common highway aforesaid.

And that the inhabitants of the said township or district of Waverton in the said parish of Wigton in the county aforesaid have from time whereof the memory of man is not to the contrary hitherto been used and accustomed to repair and amend and of right ought to have repaired and amended and still of right ought to repair and amend that part of the highway aforesaid so *342] as aforesaid being ruinous miry broken and in decay when so often as there should be occasion.

And that the said inhabitants of the said township aforesaid have not yet done the same to the evil example

of all others in like case offending and against the peace of our Lady the Queen her Crown and dignity.

2d Count. That within the parish of Wigton aforesaid in the county aforesaid from time whereof the memory of man is not to the contrary there have been and still are divers townships or districts whereof the township or district of Waverton otherwise called Waverton High and Low during all the time last aforesaid hath been and still is one and that the inhabitants of the said township or district of Waverton in the parish aforesaid from time whereof the memory of man is not to the contrary have repaired and amended and have been used and accustomed to repair and amend and of right ought to have repaired and amended and still of right ought to repair and amend when and so often as it hath been or shall be necessary such and so many of the common highways situate and being within the township or district of Waverton aforesaid as would otherwise be repairable and amendable by the inhabitants of the said parish at large and that the said part of the same common highway hereinbefore mentioned to be ruinous deep miry broken and in decay as aforesaid was a common highway which but for the said prescription or usage would be repairable and am ndable by the inhabitants of the said parish of Wigton at large. And that by reason of the premises the inhabitants of the township or district of Waverton aforesaid in the parish aforesaid during all the time last aforesaid ought to have repaired and amended and still ought to repair and amend the same part of the said common highway so being ruinous deep miry broken and in decay as aforesaid when and so often as it hath [*343 been and shall be necessary and that the said inhabitants of the said township aforesaid have not yet done the same to the evil example of all others in like case offending and against the peace of our said Lady the Queen her Crown and dignity.

3rd Count. The same as the second; with the exception that it averred that the inhabitants of the several and respective townships, whereof Waverton was one, situate in the parish of Wigton, were liable to repair the said high

way.

Plea. Not guilty.

The jury having found the defendants not guilty on the first count, and guilty on the second and third counts, a rule nisi was obtained in the Queen's Bench on the 4th of November, to arrest the judgment on the second and third counts, on the ground that these counts were bad, in not containing any sufficient allegation that the highway, the subject of the indictment, was situated within the township or district of Waverton, or that the road was out of repair.

On the 13th November, A. D. 1851, this case was argued before Lord CAMPBELL C. J., PATTESON J., COLERIDGE J., and WIGHTMAN J.

S. Temple and Pickering, for the Crown. Knowles Q. C., Atherton Q. C., and Unthank, for the defendants.

Temple. After verdict, the second and third counts are sufficient, even if the Court should hold that the first count cannot be referred to. The second count says, "that the said part of the same common highway hereinbefore mentioned to be ruinous, deep, miry, broken, and in decay as aforesaid, was a common highway, which, but for the said prescription or usage, *would be repair*344] able or amendable by the inhabitants of the said parish of Wigton at large." That, after verdict, is equivalent to a direct averment that the highway was ruinous and out of repair. (Posterne v. Hanson, 2 Wms. Saund. 60 c, and 61 m, note 9, 5th ed.; Rex v. Somerton, 7 B. & C. 463; Rex v. Boyall, 2 Burr. 832.) By the Statute of Jeofails, after verdict the second and third counts are suf