that it was necessary the plaintiff should prove to entitle him to recover, if it is alleged in the declaration or necessarily implied from what is alleged. In speaking of this rule, Collamer, J., in Needham v. McAuley, 13 Vt. 68, says: "The law on this subject is quite clear, but in its application the decisions can hardly be reconciled." The question has been discussed and the rule stated in some cases in this State in which the allegation was held sufficient, therefore the question whether a defect in the declaration was cured by verdict could not arise, there being no defect, and the statements of the rule by the court are in those cases cbiter. Such are the cases of Keyes v. Throop, 2 Aikens, 276; Durrill v. Lawrence, 10 Vt. 517; Morey v. Homan, id. 565; Manwell v. Manwell, 14 id. 14; Parlin v. Bundy, 18 id. 582, and on one point-that of alleging a consideration-Lincoln v. Blanchard, 17 id. 464, and Ammel v. Noonar, 50 id. 402, and such are the last two questions in Fuller v. Fuller, 4 id. 123, and we so understand the case of Battles v. Braintree, 14 id. 348, the court saying the count contained the substance of a good declaration. In an action of assumpsit, if no consideration is stated in the declaration, the defect is not cured by verdict, for one cannot be implied from what is stated. Vadakin v. Soper, 1 Aikens, 287; Harding v. Cragie, 8 Vt. 501. In assumpsit for goods sold, if no sale is alleged, judgment will be arrested after verdict, for no cause of action is stated. Needham v. McAuley, supra. A familiar application of the rule is made in those cases when a consideration, a writ or a deed is alleged imperfectly; it will be presumed that a specific consideration was shown, or that the writ or deed was a legal one. Martin v. Blodget, 1 Aikens, 375; Lincoln v. Blanchard, supra. And 80, in respect of the general allegation of time, after verdict, it will be presumed that the correct time, when material, was shown, and it being a defective allegation, not the want of one after verdict, the general allegation is sufficient, comprehending the specific one. Hill v. New Haven, 37 Vt. 501; Ammel v. Noonar, supra.

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There are other Vermont cases in which it is held that a specific allegation is included in a general oue. Wetherby v. Foster, 5 Vt. 136, was an action against a sheriff for neglect in levying an execution. The plaintiff alleged that there was turned out sufficient personal property to satisfy the execution. It was held that the want of a specific description of the property was cured by verdict, for the jury could not have found a verdict without satisfactory evidence of specific articles. In Curtis v. Burdick, 48 Vt. 166, the plaintiff alleged he purchased land, without alleging that he had paid for it. It was incumbent upon him to show that he had paid for it. The court presumed it was so shown; that the allegation of purchase included the one that he had paid for it, as "purchase means to buy or acquire by paying a price." In Gates v. Bowker, 18 Vt. 23, the plaintiff averred he was a merchant, and after verdict it was insisted that the proof did not show him to be a merchant in the technical sense of that term, but a mere retail dealer, but the court presumed that it was shown he was a merchant in that sense that justified a recovery. In Newton v. Brown, 49 Vt. 16, the general allegation of a conspiracy to cheat and swindle and defraud by false and fraudulent representations was held sufficient after verdict, as it should be presumed the particular acts constituting the conspiracy and representations were shown. In Brown v. Hitchcock, 28 Vt. 452, the court said the declaration was bad on demurrer, but good after verdict, but what the defect was does not appear. In Rea v. Harrington, 58 Vt. 181, it was held that the aver ment of the defendant's knowledge of the relationship with his daughter was contained by implication in the averment used, and so it was presumed to have been proved on trial. The other points in that case made under the motion in arrest were ruled for other rea

In an action upon a warranty of a horse-Martin v. Blodget, supra-the declaration averred that the horse was unsound, but did not allege in what respect. Upon motion in arrest the court said: "This objection would have been fatal on demurrer, but is cured by verdict. The jury could not have found a verdict for the plaintiff without finding what the unsoundness was." In Curtis v. Belknap, 21 Vt. 433, it was held after verdict that a reference in one count to facts as alleged in other counts was good. It was a defective setting forth of the facts, and clearly within the rule. The plaintiff in Blanchard v. Murray, 15 Vt. 548, sought to recover the amount of an award and the fees of the arbitrators, with no averment that he had paid the fees. The question under discussion was made, but the court said it did not arise on the motion in arrest. The reason is not given, but the case does not show that the arbitrators' fees were included in the verdict, and without such showing the question could not have been raised. The first two points in Fuller

v. Fuller, supra, were instances of an allegation of a specific character being included in a general one, for it was alleged that Sherman owned the land, together with carding and picking machines, subject to a mortgage. It was ruled after verdict that the description of the machines and mortgage was sufficient, and it was presumed that upon trial the particulars of the same were shown. The question arose in Bliss v. Arnold, 8 Vt. 252, as to the necessity of stating a special demand when one was necessary to be shown to enable the plaintiff to maintain his action. Williams, C. J., says: "It is true the want of stating a special demand when it is necessary has been holden bad on general demurrer, and it has been decided that it would not be aided by a verdict. The authority of those cases is questionable, and in the case of Bowdell v. Parsons, 10 East. 359, the want of alleging such a request was held not a sufficient objection in arrest of judgment." In this last case however the judgment was by default, when the common-law rule is never applied, for no trial having been had, nothing can be presumed proven on trial, and the case was ruled under the statute 4 Anne, chapter 16. The learned chief justice was in error in stating that the question arose in the case, for the point made was not that no special request was made, but that no venue as to the time and place of request was laid. The case last cited is therefore no authority upon the question before us, but we think the case of Bliss v. Arnold rightly decided, for a general request was alleged, and after verdict it should be presumed that a special request was shown. When no cause of action is stated judgment is arrested, notwithstanding the verdict, as in an action of slander if no words are set out as having been spoken. Haselton v. Weare, 8 Vt. 480. We do not think the Vermont cases on this question are at all irreconcilable. An English case which well illustrates the rule is Baldwin v. Elphinston, 2 Wm. Bl. 1037, an action for printing and causing to be printed a libel. After verdict the court said: In short the count does not state generally, as it might have done, that the libel was published, but it expresses the particular mode of publication, viz., by printing in a newspaper. It thereby puts the publication in issue, and the jury have found it so. Judgment affirmed." An Indiana statute imposed a penalty upon one who did profanely swear, aver, curse or imprecate by or in the name of God. A defendant pleaded as a justification for the arrest of the plaintiff upon a mittimus that, as a justice of the peace, he fined the plaintiff for profanely swearing three several oaths by taking the name of God in vain. Objection was made that the pleas did not describe the offenses so as to show them to be finable under the statute. The court said: "Objection not sustainable." Odell v. Garnett, 4 Blackf. 549. In a later case in the same State the question arose under a statute imposing

06

above mentioned, Higgs & Hill were to make provision in their estimate for the work upon the basis of which the contract with them was shortly afterward entered into. The only other facts necessary to be stated are that there were, as far as appears, no communications between Higgs & Hill and Lindsay & Co. before the latter commenced their work, and that it was the architect who advised them that the buildings were sufficiently advanced to enable them to commence the work for which they had given him an estimate. It should be added that the payments were made to Lindsay & Co. through Higgs & Hill. Upon this state of facts it is I think clear that the appellant was in no sense the servant of Lindsay & Co. It follows therefore that, if it is essential to the defense of common employment that the person suing should himself be the servant of the master by whose servant's negligence the injury has been caused, the defense cannot be sustained in the present case. And, upon a review of the authorities, I am unable to entertain any doubt that this is essential. Lord Cranworth, in delivering his opinion in this house, in the case of Bartonshill Coal Company v. Reid, 3 Macq. 266, thus states the rule established in this country: "When several workmen engage to serve a master in a common work, they know, or ought to know, the risks to which they are exposing themselves, including the risks of carelessness against which their employer cannot secure them, and they must be supposed to contract with reference to such risks." The law is laid down in substantially the same terms by Blackburn, J., in Howells v. Landore Steel Company, 32 L. T. Rep. (N. S.) 19; L. R., 10 Q. B. 62; and by Erle, C. J., in Hall v. Johnson, 3 H. & C. 589, who, in delivering the judgment of the Exchequer Chamber, said: “The case falls within the principle established, not only in this country, but also in Scotland, Ireland and America, that a servant, when he engages to serve a master, undertakes as between himself and his master to run all the ordinary risks of the service, including negligence on the part of a fellow servant when he is acting in the discharge of his duty as a servant of him who is the common master of both." And in the recent case of Swainson v. North-Eastern Railway Company, 38 L. T. Rep. (N. S.) 201; 3 Ex. Div. 341, Bramwell, L. J., said: "We must consider what obligations a servant takes upon himself; it is sometimes said that he contracts to take upon himself the risks of his service, but the proposition may also be stated as follows, namely, that he has not stipulated for a right of action against his master if he sustains damage from the negligence of a fellow servant. The two forms of the proposition seem to me substantially the same; in either case it is necessary to prove that a relation has been established between the person who complains and the master of the person who does the injury." The present master of the rolls (then Brett, L. J.), in the same case thus expressed himself: "1 think that the authorities bear out the proposition laid down in the Exchequer Division, that in order to give rise to the exemption there must be a common employment and a common master. It is not necessary that there should be a common service for a definite time or at fixed wages, for the exemption exists in the case of volunteers and of other persons, where plainly there has been no contract for payment; a volunteer puts himself under the control of another person, and in respect of that other person he is for the time being in the position of a servant." These authorities are sufficient to establish the proposition that unless the person sought to be rendered liable for the negligence of his servant can show that the person so seeking to make him liable was himself in his service, the defense of "common employment" is not open to him. Such service need not of course be permanent or for any defined term. The general servant of A. may for

a time or on a particular occasion be the servant of B., and a person who is not under any paid contract of service may nevertheless have put himself under the control of an employer to act in the capacity of servant, so as to be regarded as such. This, as has been pointed out, is the position of a volunteer. But it is obvious that if the exemption results, as it does according to the authorities I have cited, from the injured person having undertaken, as between himself and the person he sues, to bear the risks of his fellow servant's negligence, it can never be applicable when there is no relation between the parties from which such an undertaking can be implied. There are other considerations which point in the same direction. It must be remembered that whilst a servant contracts with his master to bear the risks of the negligence of his fellow servants there is, as has been more than once laid down, a corresponding duty on the part of the employer to take due care to select competent servants. And it would be most unreasonable to hold that he is exempt from liability for his servant's negligence in any case where he is not under this obligation. But I do not see how such an obligation can arise otherwise than from such contractual relation. The obligation and the exemption appear to me to be correlative, and to be implied from the relation of master and servant created between the parties. The language used by Lord Cairns, L. C., in Wilson v. Merry, 19 L. T. Rep. (N. S.) 30; L. R., 1 H. L. Sc. 326, was much pressed upon your lordships. It appears to have been supposed to countenance a wider exemption than is to be deduced from the other authorities to which I have referred. Lord Cairns, L. C., in delivering his opinion in this house, said: "I would only add to this statement of the law, that I do not think the liability or non-liability of the master to his workmen can depend upon the question whether the author of the accident is not or is in any technical sense the fellow workman or collaborateur of the sufferer. In the majority of cases in which accidents have occurred, the negligence has no doubt been the negligence of a fellow workman, but the case of the fellow workman appears to me to be an example of the rule and not the rule itself. The rule as I think must stand on higher and broader grounds." But it is clear to my mind that when Lord Cairns used this language he was only intending to repudiate the contention put forward by the appellant in that case, that the rule applied exclusively to workmen of the same grade actually employed in a common labor, and had no application where the person whose negligence was complained of was in the position of a manager not taking part in manual labor, who was in fact the employer's alter ego. Other passages in the noble and learned lord's opinion indicate I think clearly that he did not intend to state the law differently from Lord Cranworth, whose opinion in Bartonshill Coal Company v. Reid he quotes with approval. It is said however that the case of Wiggett 7. Fox, 11 Ex. 832; 25 L. J. 188, Ex., is decisive in favor of the respondents, and this view was adopted in the courts below. With deference to the learned judges who have entertained this view, I am quite unable to concur in it. If the law there laid down would determine the present case in favor of the respondents, I should feel bound to reject it as inconsistent with all the other English authorities. The plaintiff in Wiggett v. Fox was the administratrix of a servant of a subcontractor who had been employed by the defendants to do a part of the work included in their contract; it was held that he was a fellow servant of the servant of the defendant whose negligence caused him injury, that the sub-contractor and his servants had become the servants of the contractor. The ground of this decision was explained by Channell, B., in Abraham v. Reynolds, 1 L. T. Rep. (N. S.) 330; 5 H. & N. 143, to be that it was proved that the deceased was paid by

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implied contract on the part of the master to recoup for any damage which he may suffer from that negligence." Manisty, J., was of opinion that the present case could not be distinguished from Wiggett v. Fox, and he added: "If any thing, in the present case the facts are stronger, in my view, to show that the persons employed upon this building were all under the control of the architect of the building owner." appeal, Cotton and Lopes, L. JJ., Fry, L. J., dissenting, affirmed the decision of the Divisional Court. Lopes, L. J., who delivered the judgment of the majority, states that, in their opinion, the respondents "became sub-contractors under Higgs & Hill, and were, together with the men directly employed by them, in the employment and under the general control of Higgs & Hill, working together for one common object-i. e., the carrying out of Higgs & Hill's contract-and taking upon themselves all the risks naturally incident to the work they had undertaken." That the learned judges meant to rest their decision upon that basis of fact is evidenced by their statement: " We know of no case in which it has been held that a man is liable for an injury caused by his servant when the man doing the injury and the injured man are to be considered as employed in the work of another who is the common master of both." I do not think it necessary to discuss the question under what circumstances the servant of one man ought to be considered the servant of another. I can well conceive that the general servant of A. might, by working toward a common end along with the servants of B., and submitting himself to the control and orders of B., become, pro hac vice, B.'s servant in such a sense as not only to disable him from recovering from B. for injuries sustained through the fault of B.'s proper servants, but to exclude the liability of A. for injury occasioned by his fault to B.'s own workmen. In order to produce that result the circumstances must, in my opinion, be such as to show conclusively that the servant submitted himself to the control of another person than his proper master, and either expressly or im pliedly consented to accept that other person as his master, for the purposes of the common employment. To my mind there is not, in this case, a tittle of evidence to show that the respondents' workmen agreed to submit, or were in point of fact subjected, to the control either of Higgs & Co. or of Mr. Burdon, the architect. I am therefore unable to assent to the assumption upon which the judgment of the Court of Appeal proceeds. I am also unable to assent to the legal doctrine which found favor with the Divisional Court, and was pressed upon us in the argument for the respondents. I do not agree with Pollock, B., that the rule which exempts a master from liability to his servant for injuries negligently occasioned by a fellow servant in the course of their common employment rests upon the absence of an implied contract by the master to recoup such damage. The master's responsibility for his servants' acts has its origin in the maxim Qui facit per alium facit per se, which has been construed as inferring his liability for what is negli gently done by the servant acting within the scope of his employment. The immunity extended to a master in the case of injuries caused to each other by his servants whilst they are working for him to a commou end is an exception to the general rule, and rests upon an implied undertaking by the servant to bear the risks arising from the possible negligence of a fellow servant, who has been selected with due care by his master. I am of opinion with Fry, J., that in order to raise the exemption there must not only be common employment, but a common master, and that the respondents are liable, because in this case, although there was common employment, there was no common master. The principle of the master's immunity in such cases, frequently termed the doctrine

of collaborateur, is of comparatively recent origin. In the law of England it can hardly be traced further back than Priestley v. Fowler, which was decided in 1837. 3 M. & W. 1. It was rejected by the courts of Scotland until 1856, when, for the first time in either country, it was fully explained and reduced to its proper limits by Lord Cranworth in the Scotch case of Bartonshill Coal Company v. Reid, 3 Macq. 266. The doctrine had previously been formulated by the Supreme Court of Massachusetts, in a judgment delivered by Shaw, C. J., in Farwell v. Boston & Worcester Railway Corporation. 4 Metc. 49, which was referred to with approval by Lord Cranworth. It is needless to quote passages from the opinions of Lord Cranworth and Shaw, C. J., which are now so familiar to professional lawyers. It is sufficient to say that, in my opinion, the rule as laid down by these eminent judges is strictly confined to the case of common employment under a common master, and that the reasons which they assign for the introduction of the rule have no application to any other case. Counsel for the respondents relied upon three decisious, two of them Scotch, as authorities for the extension of the doctrine to cases where there is no common master, but common employment for a common object. The first of these cases is Wiggett v. Fox, 11 Ex. 832, as to which I can only say that, if it must be taken to establish the proposition maintained by the respondents, I could have no hesitation in holding that it was not decided according to law. But Channell, B., subsequently explained that he assented to the judgment because he thought Fox & Co. had control over Wiggett, by which he probably meant that the relation of servant and master did actually exist between Wiggett and Fox & Co. If that be taken as the true ground of the decis ion, it does not support the argument of the respondents, but comes within the rule enunciated by Lord Cranworth. The next case is Woodhead v. Gartness Mineral Company, 4 Ct. Sess. Cas. (4th series) 469, which was decided in 1877 by a majority of seven to one of the inner house judges of the Court of Sessions, the late Lord Justice Clerk (Lord Moncrieff) being the sole dissentient. It does appear to me that the decision goes the full length of affirming that in cases of common employ ment, under different masters, each master is freed from responsibility for injuries inflicted upon the workmen of other masters by the negligence of his servants. The lord president (Inglis), whose views are in substantial agreement with those of the six learned judges who came to the same conclusion with him, said: "If two miners are employed and paid by the same master, and, while they are hewing at the working face, the one by negligence injures the other, the master is not answerable, because it is said they are engaged in a common employment, that is to say they are engaged in the same work as servants of the same master. But if the legal principle were applicable to this case only it would cease to be a principle, and degenerate into a mere artificial and arbitrary rule. It is not because the wrong-doer is, in a technical sense, the servant of the same master that the master is not answerable. It is of no moment to the injured workman whether his injury be caused by a servant of the same master or by one who has undertaken some function in the same mine upon what is called an independent contract. The injury in either case is the same. The personal liability of the wrongdoer is the same. But the mine owner is free from responsibility, not because the injured and the injurer are both his own hired and paid servants, but because he is not personally in fault, and has not warranted the injured workman against the perils of the work.” In the third case relied on by the respondents, namely, Maguire v. Russell, 12 Ct. Sess. Cas. (4th series) 1071, one tradesman had contracted to execute plumber work, and another to lay asphalt pavement in the same