tutional, because it is special legislation; | grant or will (Parkersburg Industrial Co. v. but as it applies to sheriff's of all counties, Schultz, 43 W. Va. 470), and retroactive and such taxes therein, it does not seem so legislation cannot destroy that title (Hall to me. The act, it is true, applies only to v. Webb, 21 W. Va. 318); but retroactive certain claims of sheriffs and taxes; but, legislation, merely because it is retroactive, surely, the legislature can select all of a is not unconstitutional or void, unless it imclass which may, in its judgment, call for pairs contracts or right of property, and legislation. It may select certain trades, vo- there is no vested right in a mere defense to cations, or men as distinguished from women, a personal demand, and statutes of limitaor minors as distinguished from adults, or tions relate only to the remedy, and may resane people as distinguished from the insane, vive a remedy once barred, as held in this and enact such legislation as may, in its state in Huffman v. Alderson, 9 W. Va. 616, judgment, be a requisite for them, without and Keller v. McHuffman, 15 W. Va. 64. the enactment falling under the inhibition of Perhaps the weight of authority elsewhere is the Constitution relating to special legisla- the other way; but Wood, Limitations of Action. "A statute relating to persons or tions, 41, though contending that wisdom things as a class is a general law; one re- would dictate to the contrary, admits that lating to particular persons or things of a the decision of the United States Supreme class is special." Sutherland, Stat. Constr. Court in Campbell v. Haverhill, 155 U. S. p. 149; Wheeler v. Philadelphia, 77 Pa. 338; 620, 39 L. ed. 283, that in actions upon conEx parte Lichtenstein, 67 Cal. 359. This tract, or in any class of actions in which a act operates uniformly on all persons and party does not become invested with the title things of a class. to property by the statute of limitations, the legislature may, by repealing the statute, even after the right of action is barred, restore to the plaintiff his remedy, and devest the other party of the statutory bar, is based on correct reasoning. If even the demand in this case were based on contract, these principles would apply, but taxes are not a contract or debt. Hinchman v. Morris, 29 W. Va. 673. Were it a contract, it might with more force be said that the law in force when the contract was made would be part of it; but, being a mere tax, there can be no plausibility or color for saying that the act is unconstitutional as affecting a contract. It is said that the title of the act is bad, as it does not fully specify its object. The title is "An Act Extending the Time in Which Distraint and Sale may be Made for Taxes," and the enactment in the act relates only to certain sheriffs and taxes for certain years. It is plain that what the act does enact is covered by the title, as the enactment is narrower than the title. Its enactment contains nothing not contained in the title. The Constitution does not require that "the subject of the bill shall be specifically and exactly expressed in the title; hence we conclude that any expression in the title which calls attention to the subject of the bill, although in general terms, is all that is required." Sutherland, Stat. Constr. p. 96. The same book tells us that the title "may be general, but must be specific enough to answer reasonably the purpose for which the subject is required to be expressed in the title. When the subject is stated in the title, the Constitution is so far complied with that no criticism of the mode of statement will affect the validity of the act. The statute is valid in such a case. The degree of particularity in expressing the subject in the title is left to the discretion of the legislature. No particular form has been prescribed in the Constitution for expressing the subject or purpose of a statute in its title. It need not index the details of the act, nor give a synopsis of the means by which the object of the statute is to be effectuated by the provisions in the body of the act." See State v. Mines, 38 W. Va. 125. The main question, however, is whether the act is invalid because it revives the remedy of levy after it had been barred by limitations. It is contended that, while the legislature may extend the statute of limitations as to actions not yet barred, it cannot renew a barred remedy. Where, under the statute, title to property, real or personal, has vested, it is just as good a title as if conferred by 45 L. R. A There is another reason against the injunction. The sheriff had not levied on anything. The taxes were not illegal, but admitted to be legal. In White v. Stender, 24 W. Va. 615, 49 Am. Rep. 283, it is held that injunction does not lie to prevent sale of personalty levied on for taxes, unless it be of peculiar value, as full remedy exists by suit at law. How can we assume in advance that the sheriff would levy on property of such peculiar value that an action at law would not give indemnity for it? I do not see how the action for the taxes is material. It was dismissed "without prejudice;" but, if it had not been, Wyatt had a right to the remedy afterwards given him by the legislature, and could adopt either he chose. Therefore we reverse the decree, and dismiss the bill and injunction, but without prejudice to McEldowney's right to an action at law upon the sheriff's bond or otherwise to recover moneys alleged to be due him from Wyatt as sheriff, for fee bills and other claims placed in the hands of said sheriff by McEldowney, as he alleges. They cannot be allowed as set-off on payments against taxes, for reasons stated in Miller v. Wisener, 45 W. Va. 59 (decided this term). Rehearing denied. WISCONSIN SUPREME COURT. Statement by Dodge, J.: Appeal from order overruling demurrer to a complaint, which alleges that the defendants E. A. Chilton, as principal, and J. E. Chilton and R. S. Carr, as sureties, entered into a contract with the United States, whereby it is agreed that they will carry the mails from the stations to the post office in the city of Milwaukee from July 1, 1895, to June 30, 1899, in a safe and secure manner, free from wet or other injury, in wagons of a style and design to be prescribed by the postmaster general, and, by the fourth clause, will be accountable and answerable in damages to the United States or any person aggrieved for faithful performance by the said NOTE. The decision in the above case is a novel one. On the question of the ability of a servant to third persons for his own negligence or non feasance, see note to Mayer v. Thompson-Hutch Ison Bldg. Co. (Ala.) 28 L. R. A. 433. and Durkin v. Kingston Coal Co. (Pa.) 29 L. R. A. 808. See also 46 L. R. A. 715. contractor of all duties and obligations herein assumed, or which are now or may hereafter be imposed by law in this behalf; and, further, to be so answerable and accountable in damages for the careful and faithful conduct of the person or persons who may be employed by said contractor, and to whom the said contractor shall commit the care and transportation of the mails, and the faithful performance of the duties which are or may by law be imposed upon such person or persons in the care and transportation of said mails. The same paragraph also prohibits the employment of subordinates under sixteen years of age, of bad morals, or who have not taken the oath required by law. The fifth paragraph requires contractor to discharge any driver or other employee when required by the Postmaster General, and also prohibits the carriage of parcels except as contained in the mail; and the ninth: "To convey, whenever requested so to do, one railway postoffice clerk, a substitute, or a messenger, on the driver's seat of each wagon." A series of general stipulations and agreements follow, providing for changes in service, and that for any failure in certain details of carrying of the mails, "or for any other delinquency or omission of duty under this contract," the contractor shall forfeit, and there may be withheld from his pay, such sum as the Postmaster General may impose as fines or deductions; and further providing for annulment in case of repeated breaches or violations of the postal laws, and that such amendment shall not impair the right of the United States to claim damages under the contract, but such damages may, for the purpose of set-off or counterclaim, be assessed and liquidated by the auditor of the treasury for the postoffice department, and that the contract is to be subject to all the conditions imposed by law and the several acts of Congress relating to postoffices and post roads, for which the government was to pay Chilton $6,666 per year. On February 23, 1895, the defendant Robert A. Waite, as subcontractor, and defendants Alexander McWhorter and J. A. Waite, of Waukesha, as sureties, entered into a writ ten agreement with E. A. Chilton, wherein said Waite, together with his sureties, undertook and bound themselves, for $4,800 per an num, "to transport the United States mail on said route from July 1, 1895, to June 30, 1899, at such times and upon such schedules as the Postmaster General may direct, and in full compliance with the postal laws and regulations, and subject to, and in compli ance with, all of the requirements of said party of the first part under said contract with the United States, for $4.800 per an num." It was agreed that liability for all fines and deductions imposed by the Postmaster General should be assumed by the subcontractor, and that, in case of any failure or refusal by the party of the second part to perform the mail service therein pro Messrs. D. S. Tullar and H. C. Waite, for appellants: Where a contractor does work under the direction of an employee or his agent and subject to his control, the contractor is a although the employer should never exercise mere servant of his employer. And this, too, such control. Hughbanks v. Boston Investment Co. 92 Iowa, 267; Waters v. Greenleaf, Johnson Lumber Co. 115 N. C. 648; Jensen v. Barbour, 15 Mont. 582; Cincinnati v. Stone, 5 Ohio St. 38; Speed v. Atlantic & P. R. Co. 71 Mo. 303; Annett v. Foster, 1 Daly, 502; Linnehan v. Rollins, 137 Mass. 123, 50 Am. Rep. 287; Norwalk Gaslight Co. v. Norwalk, 63 Conn. 495. As to the effect of reserving the right to dismiss any of the contractor's servants it is held that a contractor under such restriction is a servant. Chicago v. Joney, 60 Ill. 383; Larson v. Metropolitan Street R. Co. 110 Mo. 234, 16 L. R. A. 330; Blum v. Kansas, 84 Mo. 112, 54 Am. Rep. 87; Faren v. Sellers, 39 La. Ann. 1011. vided for, then the sum stipulated should | injuries were caused solely by reason of the become immediately due and payable to the defendants' failure to perform and discharge party of the first part as liquidated damages. the duties and obligations which they had asUpon the back of this subcontract were print- sumed under and by virtue of said contracts. ed numerous provisions, described as the The original contractor and sureties were not principal requirements of the contract be- served. Robert A. Waite, the subcontractor, tween the United States and the principal by himself and his two sureties together, contractor, to which contract such subcon- served separate general demurrers, which tract was subject. Those specifications reit- were overruled, from which orders separate erated many of the requirements as to the appeals were taken. manner of carrying the mail; kind of wagons to be used; taking of oath by every employee; carriage of one railway postal clerk, a substitute or messenger, on the driver's seat; that employees shall be over sixteen years of age, of good moral character, and able to read and write, and must take oath and wear regulation cap; and that the principal contractor agrees "to be accountable in damages to the United States, or any person aggrieved, for any failure to faithfully perform the obligations assumed by the contractor, or imposed by law on him or the persons employed by him, in the care, transportation, or custody of the mails." The complaint then goes on to allege that the plaintiff was a railway postal clerk, required by his duty to ride from the Chicago & Northwestern Railway station, in Milwaukee, to the postoffice with the mails, in defendants' wagon, and was so riding on April 1, 1897; that on said day the defendants failed to use in said service a first-class horse, but knowingly used, attached to said wagon, a vicious, kicking, runaway horse, unsuitable and dangerous; that they failed to have or keep wagon, horse, and harness in good order and appearance, so as to perform the service safely, or without injury to the plaintiff, but, on the contrary, that the wagon was out of repair, furnished with no brake, the horse was vicious, kicking, and a runaway, and unsuitable, the harness was not in good order, but old, weak, and out of repair, too large for the horse, and the holdback straps were not of sufficient strength to be used on said wagon to keep it from running on the horse, and were broken, and that the defendants failed to furnish a proper, The true test of a contractor would seein safe, or competent driver for the service to be that he rendered the service in the aforesaid, but, on the contrary, furnished a course of an independent occupation, repredriver who was a cripple, and wholly incom-senting the will of his employer only as to the petent, unsafe, and unsuitable for the service,-all to the knowledge of the defendants; that on the way to the postoffice, coming to a descent in the street, the wagon, by reason of the aforesaid defects in, and unsuitableness of, said harness and wagon, and incompetency and unsuitableness of the driver, commenced to run against the horse, which commenced to kick, whereupon the driver, by reason of his incompetency and unsuitableness, was unable to hold the horse, and carelessly and negligently dropped the reins, so that the horse was free to and did run away, The plaintiff has shown the driver of the and collided with an express wagon, tipping wagon to be his fellow servant, and the horse, over the mail wagon, and injuring the plain- harness, and wagon wherein he alleges negli tiff who was in the exercise of due and prop- gence were all within the immediate suer care and diligence, and guilty of no negli-pervision, control, and approval, and under gence contributing to the injury. The com- the direction, of their common master, the plaint concludes with the allegation that said United States government. Servants who are employed and paid by servants of another in a particular transacone person may nevertheless be ad hoc the tion, and that, too, even where their general employer is interested in the work. Oil Creek & A. River R. Co. v. Keighron, 74 Pa. 316; Huff v. Ford, 126 Mass. 24, 30 Am. Rep. 645; King v. New York C. & H. R. R. Co. 66 N. Y. 181, 23 Am. Rep. 37; Hexamer v. Webb, 101 N. Y. 377, 54 Am. Rep. 703; Atwood v. Chicago, R. I. & P. R. Co. 72 Fed. Rep. 447. result of his work, and not as to the means by which it is accomplished. Kuehn v. Milwaukee, 92 Wis. 263; Harper v. Milwaukee, 30 Wis. 365; Hexamer v. Webb, 101 N. Y. 377, 54 Am. Rep. 703; Robinson v. Webb, 11 Bush, 464; Andrews v. Boedecker, 17 Ill. App. 213; Savannah & W. R. Co. v. Phillips, 90 Ga. 829. He may be a contractor as to part of the work and a servant as to part. McCarthy v. Second Parish, 71 Me. 318, 36 Am. Rep. 320; Hale v. Johnson, 80 Ill. 185. Kuehn v. Milwaukee, 92 Wis. 263; Har- | whether such duty is imposed by voluntary per v. Milwaukee, 30 Wis. 365. Plaintiff was not a passenger or stranger on the mail wagon, but it was part of his official duty to be there and accompany the mails in the wagon from the depot to the postoffice. This brings the case within the rule laid down in Vick v. New York C. & H. R. R. Co. 95 N. Y. 267, 47 Am. Dec. 36, and the plaintiff upon his own showing is not entitled to recover. The title of chapter 380 is "An Act to Provide for the Immediate Taking Effect of Certain Sections of the Statute of 1898, as Reported by the Revisers and the Joint Committee on Revision, and to Amend Chapter 288, Laws of 1897," etc. Nothing contained in the title to this act in any manner intimates any repeal or amendment of chapter 304, Laws of 1897. A statute can never have an operation beyond the purpose set forth in the title. Bates v. Nelson, 49 Mich. 459; Booth v. Eddy, 38 Mich. 245; Re New York, 99 N. Y. 577; Relyea v. Tomahawk Pulp & Paper Co. (Wis.) 78 N. W. 412. The breach of an indemnity bond occurs only when the injured party has recovered judgment against the principal obligor, in this case E. A. Chilton. Gilbert v. Wiman, 1 N. Y. 550, 49 Am. Dec. 359. The liability of a surety is measured by, and will not be extended beyond, the strict terms of his contract. Hopewell v. McGrew, 50 Neb. 789; DeCamp v. Bullard, 22 Misc. 441; Union Bank v. Cloosey, 10 Johns. 271. Messrs. Bird, Rogers, & Bird, for respondent: contract or by statute, a breach of such duty causing damage gives a cause of action, irrespective of any special relations between the parties. Cooley, Torts, 654; Shearm. & Redf. Neg. §§ 4, 8, 13; Thomas v. Winchester, 6 N. Ÿ. 397, 57 Am. Dec. 455; Willy v. Mulledy, 78 N. Y. 310, 34 Am. Rep. 536; Pauley v. Steam Gauge & Lantern Co. 131 N. Y. 90, 15 L. R. A. 194; Knisley v. Pratt, 148 N. Y. 378, 32 L. R. A. 367; Huda v. American Glucose Co. 154 N. Y. 481, 40 L. R. A. 411. Persons under contract with the government for carrying mails are not officers of the government in the sense of being exempt from liability for defaults of their subordinates, but simply contractors, and are liable to third persons for injuries sustained through the negligence or default of their agents or employees, even without specific stipulations to that effect in their contract. Mechem, Agency, § 594; Mechem, Pub. Off. §§ 416, 664; Wharton, Neg. § 296; Old Colony R. Co. v. Slavens, 148 Mass. 363; Sawyer v. Corse, 17 Gratt. 230, 99 Am. Dec. 445; Hale v. Grand Trunk R. Co. 60 Vt. 605, 1 L. R. A. 187; Ford v. Parker, 4 Ohio St. 576; Collett v. London & N. W. R. Co. 16 Q. B. 984; Bishop v. Williamson, 11 Me. 495; Coleman v. Frazier, 4 Rich. L. 146, 53 Am. Dec. 727; Christy v. Smith, 23 Vt. 663. Dodge, J., delivered the opinion of the court: 1. The complaint is very long, and somewhat ambiguous, as to whether it is founded on contract or tort. While many acts which might constitute negligence are alleged, they are not characterized expressly as either wrongful or negligent, and they are all asWhenever any person enters into a contract serted to constitute breaches of one or the with the state or United States whereby he other of the two contracts, which are not set obligates himself to the performance of cer- out in extenso. Again, the sureties are tain duties in which the public are interest- joined as defendants, and judgment demanded, he is liable to any person sustaining dam-ed against them jointly with their principal. ages in consequence of a breach of such con- Such demand can, of course, be supported tract, and such injured person may maintain only on the ground that their principal has an action to recover the same, although not breached some requirement of the contract, a party named in the contract. performance of which the sureties have guarShearm. & Redf. Neg. 5th ed. § 118; Fel-anteed. They have no other connection lows v. Gilman, 4 Wend. 414; Robinson v. Chamberlain, 34 N. Y. 389, 90 Am. Dec. 713; Fulton F. Ins. Co. v. Baldwin, 37 N. Y. 648; McMahon v. Second Ave. R. Co. 75 N. Y. 231; Jones v. New Haven, 34 Conn. 1; State, Baltimore, v. Norwood, 12 Md. 194; State v. Wood, 51 Ark. 206; Hayes v. Porter, 22 Me. 371; Nickerson v. Thompson, 33 Me. 433; Tardos v. Bozant, 1 La. Ann. 199. either with the plaintiff or with the acts and events out of which his claim arises. Their liability must arise, if at all, from the strict words of the written contract which they have signed. Considering, then, first, whether a cause of action ex contractu is set forth against these demurring defendants, it must be observed that many of the contractual undertakings alleged in the complaint have no application to them, but only to the other defendants, who executed the original contract with the United States. The demurrant's duty and liability must be found in the subcontract, which it wil be noted is McDowell v. Laev, 35 Wis. 171; Bassett much narrower than the original. Its unv. Hughes, 43 Wis. 319; Johannes v. Phenix dertaking is at a considerably less price, and Ins. Co. 66 Wis. 50, 57 Am. Rep. 248; Grant to perform only a part of the duties assumed v. Diebold Safe & Lock Co. 77 Wis. 72; Lar- by the original contractor. He agreed to son v. Cook, 85 Wis. 564. carry the mails; to account for and pay over Whenever one owes another a duty, 'any moneys of the United States coming to Where one person, for a valuable consideration, engages with another to do some act for the benefit of a third person, the latter may maintain an action against the promisor for breach of the engagement. his possession; to carry postoffice blanks, | 47 Am. Rep. 75. We conclude, therefore, mail bags, and all other postal supplies; to that the complaint fails to set forth any right convey on driver's seat of each wagon a of action in the plaintiff upon the contract postal employee; that his contract might be made by the demurring defendants. As no extended additional six months, in discre- other connection of the sureties, Alexander tion of Postmaster General; and that he McWhorter and J. A. Waite, existed, their would be answerable to the United States or demurrer should have been sustained. any person aggrieved for performance of all 2. As to the subcontractor, Robert A. the duties and obligations therein assumed. Waite, however, a different question arises. The subcontractor only agreed to carry the By reason of the fact that the plaintiff was mails, and that for failure therein he should a lawful passenger upon the vehicle owned be liable to the original contractor for cer- by such defendant, and driven by his servant, tain liquidated damages. Nowhere in this within the scope of the latter's employment, subcontract is there assumption of any liabil- there existed a duty, not needing to be based ity to anyone except the other party, nor any upon any contract, but which the law imposduty save to him and to the United States. es upon every person when another is lawIf the original contractor assumed liability fully in a position to be affected by his acts for damages to others than the United States, or conduct. He owed to the plaintiff the he has not by the subcontract required the duty of ordinary care, and was liable for any subcontractor to do so. He has adopted an- injury of which his negligence might be the other method of securing indemnity to him- proximate cause. The case of Collett v. Lonself for any liability that may fall on him don & N. W. R. Co. 16 Q. B. 984, is extremeby reason of failure of the subcontractor. ly analogous to this. There the injury was The plaintiff urges that, because certain of to a postal employee whom the defendant, as the terms of the original contract are noti-a carrier of mails, was obliged to carry, and fied to the subcontractor by printing them on liability to him for an injury resulting from the back of his contract, the latter is deemed negligence was contested on the ground that to have assumed them. This position is not there was no privity of contract with him. tenable. They are not printed as a part of The court held the contrary, and repudiated the subcontract, but merely as information the idea that only the Postmaster General, of the terms of the original, and they are as- with whom the contract was made, could sumed by the subcontractor only to the ex- bring the suit as for breach of it, saying, tent specified over his signature, and that is Lord Campbell, Ch. J.: "The allegation only so far as they regulate his undertaking that it was the duty of the company to use to carry the mails. Indeed, the very notifi- due and proper care and skill in conveying cation with reference to Chilton's liability to is admitted [by demurrer]. That duty does persons aggrieved limits it to damages for not arise in respect to any contract between failure in the care, transportation, or cus- the company and the persons conveyed by tody of the mails. We think it plain, there- them, but is one which the law imposes.' fore, that no privity of contract between the Patterson, J.: "The plaintiff's right to sue demurrants and the plaintiff is shown. They arises, not from any particular contract with contracted alone with E. A. Chilton, and not the defendants, but from their general duty with the plaintiff nor even with the United to carry the mails and officers. States, and only contracted for transporta-injury is properly the subject of an action on tion of the mails, in which contract the gov- the case by the plaintiff." In Sawyer v. ernment primarily, and individuals only in- Corse, 17 Gratt. 230, 99 Am. Dec. 445, plaindirectly, have any interest. The situation is tiff sued a mail contractor for loss of a letter closely analogous to that presented in Brit- through negligence of the defendant's emton v. Green Bay & Ft. H. Waterworks ployee carrying mail bags, the contract being Co. 81 Wis. 48, where the defendant failed set out somewhat as in the present case. The in its duty by contract with the city to fur- court held that it was an action on the case; nish water for extinguishment of fires, that it could only be sustained by proof: whereby great loss fell on plaintiff. In that First, of defendant's own negligence in carrycase it was held that no privity of contracting the letter; second, his negligence in emexisted, notwithstanding the fact that plaintiff might be greatly benefited by its performance or injured by breach, but that to recover he must point to a duty resting on defendant by law, breach of which would constitute a tort. Most of the authorities cited by respondent to support recovery, under similar circumstances, repudiate the contract liability, or rest on a duty imposed by law as a result of the situation. Sawyer v. Corse, 17 Gratt. 230, 99 Am. Dec. 445; Hale v. Grand Trunk R. Co. 60 Vt. 605, 1 L. R. A. 187; Collett v. London & N. W. R. Co. 16 Q. B. 984; Mellor v. Missouri P. R. Co. 105 Mo. 455, 10 L. R. A. 36; Hutchins v. Brackett, 22 N. H. 252, 53 Am. Dec. 248; Seybolt v. New York. L. E. & W. R. Co. 95 N. Y. 562, Such ploying a known incompetent person; or, third, negligence of his agent in the scope of his employment. In Seybolt v. New York, L. E. & W. R. Co. 95 N. Y. 562, 47 Am. Rep. 75, a railway postal employee traveling on defendant's road in care of the mails, in pursuance of the usual statute, was held entitled to recover in tort for an injury from negligence. The court held that the action did not depend on the contract relation, further than that established the lawfulness of his presence on the train; whereupon the common-law duties of the defendant to him as to any other passenger arose. In Brewer v. New York, L. E. & W. R. Co. 124 N. Y. 59, 11 L. R. A. 483, plaintiff's intestate was being carried by the defendant as an express |