Watson, C. J.
When this case was here before (as reported in 90 Vt. 35, 96 Atl. 375), it was on exceptions to rulings on questions of evidence, made during a trial .on the merits. The casé then standing on the original declaration (all counts), we said in stating the case, was an action at common law. Now the nature of the original counts in that respect is involved in the questions expressly raised by the exceptions, and is for decision. Each of those counts alleges that defendant, at the time in question, had in its possession, control, and management a certain line of railroad extending from South Londonderry to Brattleboro (wholly within this State) operating trains thereon for the carriage of freight and passengers for hire; but there is no allegation that it was engaged as a common carrier over any other line of railroad, or beyond the termini stated; nor do any of those counts contain allegations of fact showing even by implication that' defendant was then engaged in interstate or foreign,commerce, nor that the train in connection with which plaintiff was then employed was operated in such commerce, nor that the plaintiff at the time of his injury was employed by defendant in such commerce.
Each count avers that the plaintiff was in the exercise of due care and diligence. Such an averment or its equivalent is essential to a declaration based on the common law in this State, where freedom from contributory negligence is a substantive element in the plaintiff’s right of action, and to show which he has the burden; but it would be out of place and mere surplusage in a declaration based on the Federal Employers’ Liability Act-under which such negligence does not defeat the action but goes only to the diminution of plaintiff’s damages, and as to which the burden is placed on the defendant. That the pleader had knowledge of this difference in the requirements of good pleading and acted accordingly, pretty clearly appears from the fact that the [366]*366distinction is observed in the drafting of the amended third and the amended sixth counts, discussed in subsequent paragraphs. Not only this, but the plaintiff took issue upon defendant’s special plea in bar to the effect that the action could not be maintained because the supposed causes of action (if any such had accrued to the plaintiff) accrued subsequently to the taking effect of the Federal Employers’ Liability Act, approved on April 22, 1908; and that at the time when, etc., the defendant was engaged in interstate commerce, and the plaintiff was employed by defendant in such commerce. Indeed, the former record before us, of which we now take judicial notice (Green v. LaClair, 91 Vt. 23, 99 Atl. 244), shows that the case was tried on the merits by both sides as an action founded on the common law, the plaintiff claiming, and his evidence tending to show that when he suffered his injuries he was employed by defendant in intrastate commerce, and defendant claiming and offering evidence tending to show that plaintiff was then employed in interstate commerce, and consequently his rights were to be determined under the Federal statute. And in the opinion handed down by this Court, reversing the judgment and remanding the case, it is said that the jury by their verdict necessarily found that the plaintiff, at the time of his injury, was not employed in interstate commerce. Reference is made to that verdict only as it indicates what the plaintiff’s understanding then was as to the legal foundation of his action. All the original counts are complete and perfect on the theory of the case theretofore had and acted upon by him and sustained before the jury. We think it clear that they were all intended by the pleader to be and are founded on the common law.
The amended third count, permitted by the court to be filed against defendant’s objection, after the remand of the case, contains averments of a different state of facts as a ground of action, showing that the train which the plaintiff was engaged in switching at the time of his injury, was being operated in interstate commerce, and that he was employed by defendant therein. To the extent of this count, the case was thereby brought under the provisions of the Federal statute, and for a new cause of action. Niles v. Central Vermont Ry. Co., 87 Vt. 356, 89 Atl. 629; Winfree v. Northern P. R. R. Co., 227 U. S. 296, 57 L. ed. 518, 33 Sup. Ct. 273; Atlantic Coast Line R. R. Co. v. Burnette, 239 U. S. 199, 60 L. ed. 226, 36 Sup. Ct. 75. According to the holding in [367]*367Union P. R. R. Co. v. Wyler, 158 U. S. 285, 39 L. ed. 983, 15 Sup. Ct. 877, the legal principles by which the question of whether the amended count presented a new cause of action must be .solved are those which belong to the law of departure in after pleading, since the rules governing this subject afford the true criterion by which to determine the question whether a new •cause of action is introduced by an amendment. The law of departure is there examined at great length, quoting from numerous legal classics, and citing many other authorities. It answers ■our pui’pose here, in showing the principle there emphasized and applied, to make a short quotation there made from 1 Chitty on Pleading, at page *644: “A departure may be either in the substance of the action or defence, or the law on which it is founded; ■as if a declaration be founded on the common law, and the replication attempt to maintain it by a special custom or act of Parliament.” It is said in that case: " The most common, if not the invariable, test of departure in law, as settled by the authorities referred to, is a change from the assertion of a cause of action under the common or general law to a reliance upon a statute giving a particular or exceptional right.” The ease there under consideration was of this character, and it was held that the amended petition introduced a substantially new cause of action. It was pointed out that the amended petition set up not only a different state of facts, but a different rule of law as the ground of the action. And to the argument that as all the facts necessary to recovery were averred in the original petition, the subsequent amendment set out no new cause of action in alleging the Kansas statute, the Court said that "if the argument were sound, it would only tend to support the proposition that there was no departure or new cause of action from fact to fact, and would not in the least meet the difficulty caused by the departure from law to law.” The cases to which reference is made in this paragraph are full authority for our holding that the amended third count is for a new cause of action.
An amended count can be filed only for the same cause of action declared upon in the original count for which it is to be substituted. Esterbrook v. Fidelity Mut. Fire Ins. Co., 74 Vt. 202, 52 Atl. 420; Derosia v. Ferland, 83 Vt. 372, 76 Atl. 153, 28 L. R. A. (N. S.) 577, 138 Am. St. Rep. 1092; Sowles v. Hartford Life Ins. Co., 85 Vt. 56, 81 Atl. 98. This is not changed by •statute, and the exception saved to the court’s permitting the [368]*368amended count to be filed, changing the cause of action, is available in review. Brodeck & Co. v. Hirschfield, 57 Vt. 12.
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Watson, C. J.
When this case was here before (as reported in 90 Vt. 35, 96 Atl. 375), it was on exceptions to rulings on questions of evidence, made during a trial .on the merits. The casé then standing on the original declaration (all counts), we said in stating the case, was an action at common law. Now the nature of the original counts in that respect is involved in the questions expressly raised by the exceptions, and is for decision. Each of those counts alleges that defendant, at the time in question, had in its possession, control, and management a certain line of railroad extending from South Londonderry to Brattleboro (wholly within this State) operating trains thereon for the carriage of freight and passengers for hire; but there is no allegation that it was engaged as a common carrier over any other line of railroad, or beyond the termini stated; nor do any of those counts contain allegations of fact showing even by implication that' defendant was then engaged in interstate or foreign,commerce, nor that the train in connection with which plaintiff was then employed was operated in such commerce, nor that the plaintiff at the time of his injury was employed by defendant in such commerce.
Each count avers that the plaintiff was in the exercise of due care and diligence. Such an averment or its equivalent is essential to a declaration based on the common law in this State, where freedom from contributory negligence is a substantive element in the plaintiff’s right of action, and to show which he has the burden; but it would be out of place and mere surplusage in a declaration based on the Federal Employers’ Liability Act-under which such negligence does not defeat the action but goes only to the diminution of plaintiff’s damages, and as to which the burden is placed on the defendant. That the pleader had knowledge of this difference in the requirements of good pleading and acted accordingly, pretty clearly appears from the fact that the [366]*366distinction is observed in the drafting of the amended third and the amended sixth counts, discussed in subsequent paragraphs. Not only this, but the plaintiff took issue upon defendant’s special plea in bar to the effect that the action could not be maintained because the supposed causes of action (if any such had accrued to the plaintiff) accrued subsequently to the taking effect of the Federal Employers’ Liability Act, approved on April 22, 1908; and that at the time when, etc., the defendant was engaged in interstate commerce, and the plaintiff was employed by defendant in such commerce. Indeed, the former record before us, of which we now take judicial notice (Green v. LaClair, 91 Vt. 23, 99 Atl. 244), shows that the case was tried on the merits by both sides as an action founded on the common law, the plaintiff claiming, and his evidence tending to show that when he suffered his injuries he was employed by defendant in intrastate commerce, and defendant claiming and offering evidence tending to show that plaintiff was then employed in interstate commerce, and consequently his rights were to be determined under the Federal statute. And in the opinion handed down by this Court, reversing the judgment and remanding the case, it is said that the jury by their verdict necessarily found that the plaintiff, at the time of his injury, was not employed in interstate commerce. Reference is made to that verdict only as it indicates what the plaintiff’s understanding then was as to the legal foundation of his action. All the original counts are complete and perfect on the theory of the case theretofore had and acted upon by him and sustained before the jury. We think it clear that they were all intended by the pleader to be and are founded on the common law.
The amended third count, permitted by the court to be filed against defendant’s objection, after the remand of the case, contains averments of a different state of facts as a ground of action, showing that the train which the plaintiff was engaged in switching at the time of his injury, was being operated in interstate commerce, and that he was employed by defendant therein. To the extent of this count, the case was thereby brought under the provisions of the Federal statute, and for a new cause of action. Niles v. Central Vermont Ry. Co., 87 Vt. 356, 89 Atl. 629; Winfree v. Northern P. R. R. Co., 227 U. S. 296, 57 L. ed. 518, 33 Sup. Ct. 273; Atlantic Coast Line R. R. Co. v. Burnette, 239 U. S. 199, 60 L. ed. 226, 36 Sup. Ct. 75. According to the holding in [367]*367Union P. R. R. Co. v. Wyler, 158 U. S. 285, 39 L. ed. 983, 15 Sup. Ct. 877, the legal principles by which the question of whether the amended count presented a new cause of action must be .solved are those which belong to the law of departure in after pleading, since the rules governing this subject afford the true criterion by which to determine the question whether a new •cause of action is introduced by an amendment. The law of departure is there examined at great length, quoting from numerous legal classics, and citing many other authorities. It answers ■our pui’pose here, in showing the principle there emphasized and applied, to make a short quotation there made from 1 Chitty on Pleading, at page *644: “A departure may be either in the substance of the action or defence, or the law on which it is founded; ■as if a declaration be founded on the common law, and the replication attempt to maintain it by a special custom or act of Parliament.” It is said in that case: " The most common, if not the invariable, test of departure in law, as settled by the authorities referred to, is a change from the assertion of a cause of action under the common or general law to a reliance upon a statute giving a particular or exceptional right.” The ease there under consideration was of this character, and it was held that the amended petition introduced a substantially new cause of action. It was pointed out that the amended petition set up not only a different state of facts, but a different rule of law as the ground of the action. And to the argument that as all the facts necessary to recovery were averred in the original petition, the subsequent amendment set out no new cause of action in alleging the Kansas statute, the Court said that "if the argument were sound, it would only tend to support the proposition that there was no departure or new cause of action from fact to fact, and would not in the least meet the difficulty caused by the departure from law to law.” The cases to which reference is made in this paragraph are full authority for our holding that the amended third count is for a new cause of action.
An amended count can be filed only for the same cause of action declared upon in the original count for which it is to be substituted. Esterbrook v. Fidelity Mut. Fire Ins. Co., 74 Vt. 202, 52 Atl. 420; Derosia v. Ferland, 83 Vt. 372, 76 Atl. 153, 28 L. R. A. (N. S.) 577, 138 Am. St. Rep. 1092; Sowles v. Hartford Life Ins. Co., 85 Vt. 56, 81 Atl. 98. This is not changed by •statute, and the exception saved to the court’s permitting the [368]*368amended count to be filed, changing the cause of action, is available in review. Brodeck & Co. v. Hirschfield, 57 Vt. 12. Moreover, by section 6 of the Federal statute; “no action shall be maintained under this act unless commenced within two years from the day the cause of action accrued. ’ ’ This is a limitation on the liability, and if an action be not commenced within the period thus specified, the right of action conferred by the statute is extinguished. Osborne v. Grand Trunk Ry. Co., 87 Vt. 104, 88 Atl. 512, Ann. Cas. 1916 C, 74; Atlantic Coast Line R. R. Co. v. Burnette, cited above. And since the amended third count introduced a new cause of action affected by the limitation, it was the equivalent of a new suit, as to which the running of the limitation was not previously arrested. Union P. R. R. Co. v. Wyler, noticed above; United States v. Dalcour, 203 U. S. 408, 51 L. ed. 248, 27 Sup. Ct. 58; Seaboard Air Line R. R. Co. v. Renn., 241 U. S. 290, 60 L. ed. 1006, 36 Sup. Ct. 567; Allen v. Tuscarora Valley R. R. Co., 229 Pa. 97, 78 Atl. 34, 30 L. R. A. (N. S.) 1096, 140 Am. St. Rep. 714.
As claimed by plaintiff, the exception to the overruling of the motion to dismiss this amended count after it was filed, was waived by subsequently pleading to that count in bar. Seymour v. Brainerd, 66 Vt. 320, 29 Atl. 462. Yet by such subsequent pleading the same question as to there being no liability under the Federal statute at the time such amendment was permitted, because of the lapse of time after which no action could be maintained, was again presented by two special pleas. To each of these pleas' plaintiff replied precludi non, because in effect the cause of action alleged and declared upon in the amended third count, is all and the same cause of action as that alleged and declared upon in the original third count; and that said action, containing said original third count as a part of the declaration, was commenced within two years from the time the cause of action alleged and declared upon in the amended third count accrued to the plaintiff; and that said cause of action is all and the same as in this replication is set forth; concluding with a verification. To these replications defendant demurred severally, specifying as one ground of demurrer that the replication is defective in that it avers and sets forth in substance that the cause of action alleged in the original third count is the same cause of action alleged in the amended third count; whereas in fact the former is founded on the common law, while the latter is founded [369]*369on an act of Congress. Plaintiff joined in these demurrers, and we shall recur to them further on.
. On the same day of plaintiff’s filing the amended third count, he, repleading, filed a replication to defendant’s first and second pleas to the first, second, fourth, and fifth counts. As to the first plea, so far as relates to those counts, the plaintiff joined issue. As to the second plea, so far as it relates to those counts, plaintiff replied precludi non, because he says, in effect, that the matters and things set forth in those counts, occurred, and the cause of action set forth accrued, subsequently to the taking effect of the Federal statute, mentioned above; and that at the time when, etc., the defendant was a common carrier, engaged in interstate commerce, and that when the plaintiff was injured he was employed by defendant in such commerce. To this replication defendant demurred, specifying as grounds, among others: (2) That said replication is a complete departure from the said counts; (9) that it undertakes to make the said counts, counts under the Federal statute when,- at the time the replication was filed, the plaintiff had no right of action by law of that statute. In this demurrer plaintiff joined.
This demurrer and the two noticed in the next preceding-paragraph, being heard before Judge Fish in vacation, were severally overruled. and exception saved to defendant. Bach of these demurrers was well put in and should have been sustained.. As seen from what.lm already been said, there is no doubt, as matter of law, that on the record the cause of action alleged in the amended third count is not the same as that alleged in the original third count. This being so, the averment in the replications demurred to that it is the same, is not controlling. Sawyer v. Child, 83 Vt. 329, 75 Atl. 886. It was but an opinion or conclusion of the pleader. Nelson v. Montgomery First Nat. Bank, 139 Ala. 578, 36 So. 707, 101 Am. St. Rep. 52. It follows that the replications noticed in the second proceding paragraph, were no answer to the pleas in reply to which they were filed, and to overrule the demurrers was error. Regarding the replication mentioned in the preceding paragraph, nothing further need be said to show that it departs in point of fact, and also in point of law as a ground of action, from the case first made by plaintiff in the counts therein specified, in that facts not material to an action at common law, and not alleged in the counts mentioned, and which do not support or fortify them, but [370]*370essential to the cause of action prescribed by the Federal statute, are averred in the' replication to bring the case within that statute. Such a defect in pleading is properly reached by demurrer. White v. Central Vermont Ry. Co., 87 Vt. 330, 89 Atl. 618; Niles v. Central Vermont Ry. Co., cited above.
Defendant elected to abide by its demurrers, whereupon, at the next term of the trial court, judgment was rendered against it on all three of the demurrers, and the case ordered for trial on the question of damages. Exception was taken to the judgment so rendered, on the ground that thereby defendant was deprived of the equal protection of the law guaranteed by the Fourteenth Amendment of the Constitution of the United States, and it violates Article 6 of that Constitution. Exception was also saved to the ordering of the case to trial on the question of damages; also to the impaneling of the jury for such trial, on the ground that the court had no right to force defendant to trial at that time on the state of the pleadings; also to the judgment rendered on the verdict.
The effect of overruling the demurrers was to leave in the case the amended third count, and the first, second, fourth, and fifth counts, as founded on the Federal statute, and consequently the judgment rendered on the demurrers was based on that statute, and the verdict on which judgment was had in damages was returned by the jury under instructions from the court that the “damages are regulated by the Federal statute, differing from the assessment of damages under the common law of Vermont.” Yet all the rulings and judgments mentioned in the preceding paragraph were erroneous; that statute afforded no basis therefor, since, as before pointed out, defendant’s liability under it, if such there ever was, had become extinguished before the plaintiff, by changing his pleadings, attempted to invoke the Federal law as the ground of action.
The constitutional questions raised have not been considered, since the decision of them does not appear to be necessary to the final determination of the case. Blanchard v. City of Barre, 77 Vt. 420, 60 Atl. 970; State v. Boston & Maine R. R., 82 Vt. 121, 71 Atl. 1044.
The power of Judge Fish to make some of the rulings mentioned as made by him in vacation, stands challenged and briefed; but it is passed without further notice, deeming a decision of the questions particularly affecting the case itself more in the in[371]*371terests of the parties. On the reversal of the judgments and remand, the case will stand, as in the first instance, for trial on the merits at common law.
Judgment reversed, and cause remanded.