thought that there was no testimony satisfactorily showing that payments were exacted as a condition of future freightage or paid on any reasonable belief that future freight would be refused unless payments were made. I would say, with reference to this diversity of opinion, that it seems to me that the presumption would always be that a railroad company would continue to charge its fixed rates whether a shipper protested or not; and that if any shipper refused to pay the rates demanded, the railroad company would refuse to transport his goods. And if the railroad would establish that payments of exorbitant rates for freight, paid by one whose business required frequent transportation of such goods over the same railroad, were voluntarily paid, without any reasonable belief that future freight would be refused unless the rate of payment paid by the company, and by it demanded, was paid, the burden of proving this would be on the railroad company, and that payments of freights demanded of a regular shipper of freight over a railroad, when he had no other convenient way of transportation, should in the absence of proof to the contrary be regarded as made on a reasonable belief that future freight would be refused unless the payments demanded were made by the shipper. In that case the decision of the court was that the illegal freight paid to the railroad company could be recovered back. In that case all the similar cases which I have cited and commented on were cited by the court, and the court say: "The plaintiffs could compel the defendants to carry their freight only by a resort to the court and at the end of litigation. The history of these suits, begun in 1867 and just ended in 1884, shows that the plaintiffs could not obtain speedy and adequate redress-such as would save their business and prevent loss-simply by a resort to the courts to enforce legal rights. And as the defendant would not accept the payment of legal rates, and required the full payment of its illegal charges, the plaintiffs complaining and objecting to the increased and illegal charges were forced to pay them. Their choice and volition were compelled: such payments are not voluntary." Against these numerous authorities I have found but a single case, where a railroad company was not compelled to pay back illegal freight which on its demand had been paid by a shipper: that is, The Potomac Coal Co. v. The Cumberland and Pennsylvania R. R. Co., 38 Md. 226. This case was decided in 1873, and before the decision of most of the cases to which I have referred. None of these similar railroad cases, either in England or America, were referred to in that case by the court, though the English case was referred to by counsel in argument. The only cases referred to by the court in its opinion were three Maryland cases, two of which were cases of taxes paid, which were illegal, and which the court had decided could not be recovered because paid under a mistake of law; and the third a case where the city authorities had ordered a resident to build a certain wall, and if he failed to do it, declared they would build it and charge the costs to him. He then built, and brought suit to recover of the city the money which he had expended, the city authorities having no power to require him to build the wall. In that case, Mayor and City Council of Baltimore v. Lefferman, 4 Gill, 436, the court (on page 436) say: "We consider the doctrine as established that a payment is not to be regarded as compulsory unless made to emancipate the person or property from an actual or existing duress, imposed upon it by the party to whom the money is paid." This case was, I think, correctly decided; but it is apparent from many of the authorities which I have cited that the law is not correctly laid down in the above quotation. And yet it was in the two subsequent tax cases referred to by the court, as well as in the railroad case of the Potomac Coal Co. v. Pennsylvania R. R. Co., treated as correct and as finally settled as the law of Maryland. The facts are not stated in this last case. All that is said appears on page 230: "It appears from the agreed statement of facts that the appellee was carrying coal for the appellant for nearly seven years, during the whole of which time the latter was voluntarily paying the freights demanded." The suit was brought to recover the excess of freights paid during this time over what was deemed to be the legal rates which could be charged. Of course if they were, as stated by the court, voluntarily paid, they could not be recovered back. In the ab sence of the agreed facts, it is of course impossible for me to say whether the conclusion reached was or was not correct; for from the erroneous manner, as I conceive, in which the court defined what was regarded as compulsory payment, as above stated, it is obvious they may have regarded the facts agreed as showing the payments were voluntary, while if I knew the facts I might regard them as not voluntary, but as compulsory. BACK ILLEGAL proper There is one other question presented by the record in this case, that is: Was it necessary for the defendant to make a demand for a repayment to him the excess which he had paid to the plainRECOVERING tiff beyond its legal charges before the institution of FREIGHT CHARGE this suit? All the cases we have referred to show -No DEMAND NECESSARY. that the form of action to recover back money which has been paid on an illegal and unjust demand is assumpsit for money had and received for the plaintiff's use. This raises an implied promise to pay upon demand, and as a matter of mere form the court closes with a sape requesitus, but no proof of demand is necessary to support the averment. One is under no more more obligation to prove a demand before he can recover on the implied promise, when money is had and received for the plaintiff's use, than he would be to prove a demand where the promise was an express one to pay on demand; as, for instance, a note payable on demand. These positions are so elementary that I need refer to no authority to sustain them; but I will refer to 3 Rob. Practice, p. 602, where this is stated to be the law as universally admitted. PROMISE OF COM- It only remains to apply the law as we have stated it to the present case; but before so doing I would say, I attach no importance to the fact that it was proven that the defendant agreed to pay the whole of plaintiff's demand if the plaintiff would abate $3 or $4 which defendant disputed; for this occurred after all the over-payments had been made by the defendant; and it did not therefore influence the conduct of either party while these over-payments were being made. It was a proposition of compromise in which the defendant proposed to surrender substantial rights; but the proposition was not accepted, and therefore the parties were left to their equal rights, as if no such proposition had been made. The instruction set out in the second bill of exceptions was obviously not prejudicial to the plaintiff. It amounted simply to telling the jury that the West Virginia Transportation Co. was, despite its charter, bound by the Act of March 3, 1875, which enacted "that any incorporated company operating by steam or horse power a railroad not exceeding thirty miles in length may charge for the transportation of freight not exceeding twenty cents per ton per mile." This, as we have seen, was expressly decided by this court in the Laurel Fork & Sand Hill R. R. Co. v. The West Virginia Transportation Co., supra. It is also obvious, INSTRUCTIONS from what has been said, that the court properly modi- CORRECT. fied the instruction contained in bill of exceptions No. 3, and that without such modification the instruction would have been orroneous. The modification may not be very aptly expressed, but it is obvious that the instruction with the modification was not prejudicial to the plaintiff, and in my judgment, as it was doubtless understood by the jury, it laid down the law correctly. It is obvious from what we have stated that the court did not err in rejecting the plaintiff's motion to exclude from the jury all the evidence adduced by the defendant, so far as the same proved or tended to prove the defendant's account of set-off because of any one of the three grounds set out in the plaintiff's bill of exceptions No. 1; and, lastly, the court did not err in refusing to grant the plaintiff a new trial, the evidence certified in bill of exceptions No. 1 justifying the verdict found by the jury. The judgment of the circuit court of October 10, 1879, must therefore be affirmed; and the defendant in error must recover of the plaintiff in error his costs in this court expended and damages according to law. Affirmed. Right to Recover Over-charges on Freight. See cases of Steever v. Ill. Cent. R. R. Co., 16 Am. & Eng. R. R. Cas. 53, and note; Scott v. Erie R. R. Co., 16 Ibid. 51; Peters v. Marietta, etc., R. R. Co., 18 Ibid. 492, and note. SAVAGE et al. v. PICKARD. (14 Lea, Tenn. 46.) The statute which creates a railroad commission provides that each commissioner shall receive a salary of $2000 annually "unless restrained by law from the performance of their duties." Held, that their salaries would not cease upon the suing-out by several railroad companies of temporary injunctions against the performance of their functions, so far as those roads were concerned, which injunctions the courts, upon motion and argument for the purpose, declined to dissolve, but had not made perpetual by final decrees. APPEAL from the Chancery Court at Nashville. A. G. MERRITT, Ch. Vertrees & Vertrees for complainants. FACTS. COOPER, J.-Mandamus bill by the Railroad Commissioners appointed under the act of 1883, chapter 199, to compel the defendant, as Comptroller of the Treasury of the State, to issue to them a warrant on the treasury for their respective salaries from March 25, 1884. The chancellor granted the relief sought, and the defendant appealed. On March 29, 1883, the General Assembly of the State passed an act, which was approved by the Governor on the next day and went into effect at once, entitled "An act to provide for the regulation of railroad companies and persons operating railroads in this State; to prevent discrimination upon railroads in this State; and to provide for the punishment of the same; and to appoint a railroad commission." By section 11 of this act it is made the duty of the Governor to nominate three competent persons, one from each Grand Division of the State, who shall hold their offices until the first day of January, 1885. By section 15 it is provided that "the members of said commission shall each receive a salary of two thousand dollars, unless restrained by law from the performance of their duties, to be paid as the salaries of other State officers." By the act of 1883, chapter 259, making appropriations for the expenses of the State government for the years 1883 and 1884, it is provided by section 44 "that the Comptroller issue his warrant for the sum of two thousand dollars each, annually, to the railroad commissioners as salaries." The complainants were duly appointed by the Governor Railroad Commissioners of the State, and they qualified as such on April 25, 1883. They proceeded to perform the duties of the office, and the Comptroller paid them their salaries up to March 25, 1884. In the mean time, commencing on January 11, 1884, several of the railroad companies of the State, or having roads in this State, filed bills against the complainants as railroad commissioners to enjoin them from attempting to carry out the provisions of the act under which they were appointed, so far as their companies, or their roads in the State, were concerned. The Louisville & Nashville R. R. Co., the East Tennessee, Virginia & Georgia R. R. Co., the Memphis & Charleston R. R. Co., and the Knoxville & Ohio R. R. Co. filed bills in the Circuit Court of the United States at Nashville; and the Illinois Central R. R. Co. and the Chesapeake, Ohio & Southwestern R. R. Co. filed bills in the chancery courts of the State at Bolivar and Memphis. In all of these cases temporary injunctions were granted and remain in force, the United States Court at Nashville, upon argument of counsel, refusing to dissolve the injunctions granted in that court. There has been no final hearing of any of these causes, nor of course any decree of the courts making the injunctions perpetual. A number of railroad companies having roads in this State have not instituted legal proceedings, or obtained injunctions against the commissioners, including the Nashville, Chattanooga & St. Louis R. R. and its various branches; the Cincinnati Southern; the Mississippi & Tennessee; the Mobile & Ohio; the Western & Atlantic; the East Tennessee & Western North Carolina; the Knoxville & Augusta; the Rogersville & Jefferson R. R. companies. The complainants, as commissioners, have continued to perform the duties of their office except as to the railroad companies which have obtained injunctions. The Comptroller of the State contends that these injunctions have the effect to terminate the salaries of the commissioners under section 15 of the Act. That section provides that the commissioners shall each receive a salary of $2000, "unless restrained by law from the performance of their duties." The act under which the commissioners are appointed contains thirty-one sections, and provides for the performance by them of various duties. It is made their duty to investigate and determine whether the provisions of the act have been violated by any railroad company, and to institute suits in the name of the State for the recovery of penalties for such violation; . to revise the companies' tariffs of charges; to hear complaints against such tariffs of charges; to have an office at Nashville, hold monthly meetings, and keep a record of the proceedings; to notify the companies when, in their opinion, repairs are necessary upon a railroad, additions to the rolling-stock, addition or change of stations, are required, etc.; to examine the railroads, and keep them |