Sec 738

As has been already noticed,6 a common carrier is regarded as so far a public officer that excessive payments extorted by him can be recovered back in an action for money had and received;7 and this is eminently the case with railway companies when imposing unequal and extortionate charges.8 A hotel keeper may be viewed in the same light; and if he makes an extortionate charge, money paid him under protest to meet such charge may be recovered back.9 Excessive fees extorted So of money extorted by carriers and public officers.

How. 242; Clinton V. Strong, 9 Johns. 370; Briggs V. Boyd, 56 N. Y. 289 Baldwin V. S. S. Co., 74 N. Y. 125 Pemberton V. Williams, 87 Ill. 15 Schultz V. Culbertson, 46 Wis. 313 Kiewert V. Rindskopf, 46 Wis. 481 Sasportas V. Jennings, 1 Bay, 470 Collins V. Westburg, 2 Bay, 211; and see cases cited supra, sec 149.

1 Close V. Phipps, 7 M. & G. 586. Money paid, however, as a matter of compromise, cannot be recovered back, supra, sec 150, 486.

2 De Mesnil V. Dakin, L. R. 3 Q. B. 18. 3 Supra, sec 149, 150; infra, sec 740.

4 Williams V. Hedley, 8 East, 383; Smith V. Bromley, 2 Dougl. 697; Pierce V. Conant, 25 Me. 33; Willie V. Green, 2 N. H. 333; Boardman V. Roe, 13 Mass. 105.; Wheaton V. Hibbard, 20.

Johns. 290; Bond V. Jones, 8 Sm. & M. 368.

5 Crosby V. Bennett, 7 Met. 17.

6 Supra, sec 149.

7 Leake, 2d ed. 99; Ashmole V.Wain-wright, 2 Q. B. 837; Tamva Co. V. Simpson, 19 C. B. If. S. 453; and cases cited, supra, sec 149.

8 Parker V. R. R., 7 M. & G. 253; Great West. R. R. V. Sutton, L. R. 4 H. L. 226; Lancashire R. R. V. Gidlow, L. R. 7 H. L. 527; Evershed V. R. R., L. R. 2 Q. B. D. 254; Baxendale V. R. R., 14 C. B. N. S. 1; 16 C. B. N. S. 137; Garton V. R. R., 28 L. J. Ex. 169; Harmony V. Bingham, 12 N. Y. 99.

9 Lugard V. Biggs, 1881, Grove and Lopes, JJ. Of this case the London Law Times of Dec. 24, 1881, thus speaks: "The plaintiff, who was an by public officers can in like manner be recovered back.1 This has been held to be the case with respect to taxes wrongfully assessed and paid under protest to a collector who is authorized by law to levy directly on all persons whose names are on the tax list.2 But this does not apply to a payment on a claim whose defects consist simply in informalities.3 Nor can taxes illegally assessed be recovered back if paid voluntarily and without protest.4 It was held, also, in Pennsylvania in officer in the army, had been staying at the defendant's hotel for some days at the time of the late Windsor review. When his bill was presented to him for payment prior to his departure, he complained of the charges, but the defendant refused to alter them. The plaintiff then paid the bill under protest, and subsequently brought an action to recover the amount of the overcharges. At the trial the county court judge found as a fact that the charges were excessive; and he also held, as a matter of law, that the plaintiff must be considered to have known that the defendant could, if he wished, have detained his luggage supposing he had refused to pay the bill. No evidence, however, was offered to show that the plaintiff, at the time of the dispute about the amount of the charges in the bill, had any luggage on the defendant's premises, or that the defendant either detained or made any threat to detain the plaintiffs luggage if he refused to pay those charges. On these facts the case came before justices Grove and Lopes, who held that the plaintiff was entitled to recover the amount of the overcharges sued for by him. This decision we venture to think goes very much further than any decided case has yet gone.".

1 Supra, sec 149; Morgan V. Palmer, 2 B. & C. 729; Woodgate V. Knatchbull, 2 T. R. 148; Dew V. Parsons, 2 B. & Ald. 563; Steele V. Williams, 8 Ex. 625; Barnes V. Brathwaite, 2 H. & N.

569; Railroad Co. V. Commis., 98 U. S. 541; Riley V. Willis, 5 Whart. 145; American Steamship Co. V. Young, 89 Penn. St 186; Baker V. Cincinnati, 11 Oh. St. 534; Robinson V. Ezzell, 72 N. C. 231; supra, sec 149.

2 Supra, sec 149; Cooley on Taxation, 368; Chase V. Dwinal, 7 Greenl. 134; Amesbury Man. Co. V. Ames bury, 17 Mass. 461; Preston V. Boston, 12 Pick. 7; Boston Glass Co. V. Boston, 4 Met. 181; Dow V. Sudbury, 5 Met. 73; Christ Ch. Hosp. V. Phil. Co., 24 Penn. St. 229; Ten brook V. Phil., 7 Phil. 105; Harvey V. Olney, 42 Ill. 336; Elston V. Chicago, 40 Ill. 514; Parcher V. Mara-than Co., 52 Wis. 388; Quinnett V. Washington, 10 Mo. 53; and see cases cited, supra, sec 149.

3 Fellows V. School Dist., 39 Me. 559.

4 Lackey V. Mercer Co., 9 Barr, 318; Allentown V. Saeger, 20 Penn. St. 421; Taylor V. Board, 31 Penn. St. 73. See 2 Ch. on Con. 11th Am. ed. 943, citing Ripley V. Gelston, 9 Johns. 201, and Clinton V. Strong, 9 Johns. 370. In Ripley V. Gelson the plaintiff was held entitled to recover in this form of action money illegally extorted by the collector of the port of New York as tonnage, a clearance of the vessel being refused until the money was paid. In Clinton V. Strong, the plaintiff was held entitled to recover back money which the clerk of the district court illegally required to be paid as a condition of the surrender of plaintiffs property improperly seized, and see supra, sec 149.

1880, that an extortionate charge by a federal shipping commissioner, by which a seaman is compelled to pay a shipping fee every time he reships on the same vessel, may be recovered back in an action for money had and received.1 And generally that which is unlawfully extorted can be thus recovered back.2 But there can be no recovery back in Pennsylvania of taxes paid under protest when the party paying does not avail himself of his remedy of appeal.3.