defendant that unless such repayment was made they would bring an action to recover the same.

Had this complaint closed with a declaration that, by reason of the premises, the plaintiffs had sustained damages in the sum of the excess of such charges so received by the defendant, and demanded judgment for such sum, with interest, there would have been no doubt as to the character of the action. The fact that the complaint closed with a declaration that by virtue of the premises the defendant became indebted to the plaintiffs in the sum of such excess of charges, which it refused to pay upon request, and demauds judgment for such sum, with interest, we do not think changes the character of the action made by the facts before stated. This court has decided that the whole complaint must be considered for the purpose of determining what cause of action is stated or intended to be stated; and, when it is ascertained what cause of action the pleader intended to set out in his complaint, the sufficiency of the facts stated to sustain such cause of action must be determined by the court, upon a demurrer to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action, and the complaint must be held bad if the facts stated are insufficient to constitute the cause of action intended to be stated, notwithstanding they may be sufficient to constitute some other cause of action. Kewaunee County v. Decker, 30 Wis. 624. Under this rule this court held, on the former appeal in this case, that, as the original complaint was in tort, and as the second amended complaint stated facts sufficient in themselves to constitute an action for a tort, they would presume that the pleader intended to go upon the tort as his ground of action, and not upon the implied assumpsit. To hold that the amended complaint was intended to be an action of tort would be consistent with the original cause of action stated, and would be a permissible amendment. To hold otherwise would be inconsistent with the original, and not permissible.

The old common-law action for money had and received for the use of the plaintiff could be maintained in almost any case where the defendant had, by an unlawful or tortious act, become possessed of the money of the plaintiff; and in all such cases the plaintiff recovered upon a fiction of law, which in such cases presumed a promise, on the part of the person who had wrongfully and unlawfully acquired such possession, to pay the plaintiff the amount thereof. In every such case the evidence would show some tort committed by the defendant, by means of which he had possessed himself of the plaintiff's money. Although under the Code practice this court and others have permitted a plaintiff to allege that the defendent had received money for his use; that upon demand he had refused to pay the same to the plaintiff and demand judgment for the amount; and upon the trial have permitted the plain

tiff to show any state of facts which would entitle him to recover the money demanded,-still it would seem to be the better practice to state the facts upon which the right of the plaintiff to recover the money depends, and recover upon such facts, rather than upon the old fiction of the law. Grannis v. Hooker, 29 Wis. 65. No court has, I think, held under the Code that a statement of facts, which under the old practice would sustain an action for money had and received to the plaintiff's use, would not entitle the plaintiff to recover the same amount he would be entitled to recover had he made his claim for money received, nor that if such facts showed that the defendant had committed a tort in order to possess himself of the plaintiff's money, such statement of facts does not state an action in tort. The fact that upon the same evidence the plaintiff might have recovered in an action upon an implied promise of the defendant, is in no way conclusive that he could not recover for the tort.

The plaintiff may waive the tort when the defendant has posses sion of his money, and sue upon the implied promise to refund it; but he is not compelled to waive it in order to recover, and may, if he sees fit, recover upon the tort, and make that the foundation of his action. When, therefore, the plaintiff, in his complaint, sets out unlawful and tortious acts of the defendant, and relies upon those acts as the foundation of his right to demand that the court should adjudge that the plaintiff recover of the defendant money unlawfully taken from him by such unlawful and tortious acts, the action is clearly an action sounding in tort, although under the old practice he might have declared in assumpsit for money had and received, and have recovered upon proof of the same facts set out in the complaint. Cotton v. Sharpstein, 14 Wis. 226.

We have said thus much in justification of the ruling of this court on the former appeal, for the reason that the learned counsel for the respondents, upon the argument, seemed inclined to doubt the soundness of the ruling upon that appeal, and was disposed to claim that both the original and amended complaints were actions ex contractu and not because of any serious apprehension that an error had been committed in that decision.

The second point made by the learned counsel for the appellant, and upon which he mainly relies for the reversal of this judgment, is that no action of tort can be maintained for the recovery of the excess of the charges received by the appellant over and above the charges allowed by the so-called Potter law after the repeal of that law took effect. It is admitted that the excessive charges were received by the defendant while that law was in full force; that it was repealed before this action was tried, and before the second amended complaint was filed. This court has held that a right of action, whether civil, penal, or criminal, expressly given by a statute, is destroyed by its repeal, unless there be a saving clause in

the repealing statute which preserves the right to the plaintiff. The repeal destroys all such rights of action, whether commenced and pending at the time of the repeal or not. Pratt v. Brown, 3 Wis. 603; French v. Owen, 5 Wis. 112; State v. Ingersoll, 17 Wis. 631; Kertschacke v. Ludwig, 28 Wis. 430; Goodno v. Oshkosh, 31 Wis. 127; Chapin v. Crusen, Id. 209; Dillon v. Linder, 36 Wis. 344; Rood v. Railway Co., 43 Wis. 146; State v. Stone, Id. 481; Smith v. Railway Co., Id. 681; Streeter v. Railway Co., 44 Wis. 383; State v. Campbell, Id. 529; State v. Van Stralen, 45 Wis. 437; Smith v. Railway Co., 49 Wis. 443.

Rood v. Railway Co. decides that the provision in the act which repealed the Potter law of 1874, limiting the charges of railroad companies, does not save the rights of a party who had commenced his action to recover three times the amount of the excess of charges received in violation of such act.

The rule stated in the above cases is supported by an abundance of authority in other States, by the courts of the United States and the courts of England; but they do not go to the extent of holding that all rights of action or rights to property which accrue to a party or are perfected in him during the existence of the statute, by reason of the existence fall with the statute. Those rights of action which are expressly given by the statute and do not exist outside of the statute are necessarily destroyed by its repeal; but rights of property or causes of action which accrue to a party and which indirectly depend upon the statute are not necessarily destroyed by its repeal. The lawfulness of an act done depends upon the laws in force at the time it is done, and, if unlawful when done, it does not become lawful by a subsequent change of the law which renders such act lawful thereafter. Bailey v. Mogy, 4 Denio, 60; Roby v. West, 4 N. H. 285; Jacques v. Wethy, 1 H. Bl. 65; Fletcher v. Peck, 6 Cranch, 87; Palmer v. Conley, 2 Comst. 182.

This court has enforced this rule to its full extent in cases of contracts void at the time they were made, under the usury law, and the law prohibiting a party from recovering for liquor bills. Garsuth v. Butterfield, 2 Wis. 237; Root v. Rinney, 11 Wis. 84; Wood v. Lake, 13 Wis. 84; Lee v. Peckham, 17 Wis. 383; Morton v. Rutherford, 18 Wis. 208; Meiswinkle v. Jung, 30 Wis. 361; Austin v. Burgess, 36 Wis. 186. In this last case the late learned chief justice wrote the opinion, and reviewed all the cases in this court on the subject, and adhered to the former decisions as being both sound upon principle and authority. The statute of 1874 having made it unlawful for the appellant to demand or receive any greater sum for the transportation of freight than the amount fixed by that act, and section 6 of said statute having declared that any corporation evading or violating the provisions of the statute fixing rates should forfeit all claim to recover any compensation for the service rendered, and making it a misdemeanor

on the part of the agents of the corporation to refuse to transport freight for the charges fixed by the act; or who, receiving freight for transportation, shall receive more than the fixed rates therefor, -there can be no doubt that it was unlawful for the appellant or its agents to demand or receive the sums demanded and received of the plaintiffs in excess of said fixed rates at the time it was so demanded and received. It follows that, notwithstanding such payment of the money by the plaintiffs to the defendant, under coercion and protest, the money so paid to and received by the defendant still remained the property of the plaintiffs, and that an action immediately accrued in favor of the plaintiffs to recover the same back again.

The learned counsel for the appellant do not contend but that the plaintiffs might recover the money in an action for money had and received, but bases his objection to the recovery on the mere form of the action. In his very able and elaborate brief he says: "A clear case of this kind would occur where a statute prescribed a certain price to be paid for services, and a person performing them should demand a higher rate and compel its payment by withholding the property of the other. In such case, if the payment was under protest, the law would imply a promise to pay the excess, which would be a contract, and that right would remain, notwithstanding the statute fixing the price had been repealed." In this sentence the learned counsel states the exact case made by the plaintiffs. The law did fix a price for the service performed by the appellants, and made it unlawful to demand or receive a greater sum for such service. The appellant did demand a greater sum, and refused to deliver plaintiff his property until the greater sum was paid. The plaintiffs paid it under protest, and very soon thereafter commenced this action, which has finally been converted into an action to recover the amount of the money so unlawfully demanded and received.

The

The rule stated by the learned counsel for the appellant has been acted upon by this court in the cases of Wood v. Lake, 13 Wis. 84; Lee v. Peckham, 17 Wis. 383; Gill v. Rice, 13 Wis. 549; Fay v. Lovejoy, 20 Wis. 403; Dale v. Northrup, 19 Wis. 249. court in these opinions state that the remedy of the party who was paid usurious interest is to offset it against the plaintiff's claim where the plaintiff is allowed to recover anything on the usurious demand, or bring an action for money had and received to recover it back. In the case of the voluntary payment of usurious interest it is possible that no action sounding in tort would lie to recover the money so paid. The payment being voluntary, the plaintiff could not complain of any force or wrong done by the defendant, but must rest his recovery entirely upon the unlawfulness of the act of the defendant in receiving the same in violation of the statute. These cases also settle one of the queries suggested by the late

learned chief justice in Streeter v. Railway Co., 44 Wis. 386,"whether the common law action was suspended by the substitute given by the statute."

In the cases of Lee v. Peckham and Wood v. Lake it was held that under the usury law, which expressly provided that the person paying usurious interest might sue for and recover three times the excess of the money paid over and above the lawful interest, that the borrower might waive his right under the statute and sue for and recover simply the excess over and above the legal rates fixed by the statute. This right of action to recover the excess paid above the legal rate of interest prescribed by the statute is not given by the statute, but is a result of the statute, and depends upon the principles of the common law for its maintenance. The statute makes it unlawful to take more than a fixed rate. All sums taken in excess of such fixed rate are unlawfully taken, and upon the principles of the common law a right immediately accrues to the person paying the unlawful excess to recover the same back. So, in the case of a railroad company demanding and receiving for services any sum in excess of the rates fixed by law is an unlawful act, the money is, therefore, unlawfully received, and upon the principles of the common law a right of action immediately accrues to the person who pays such unlawful charges to recover the same back again. The lawfulness of an act depends upon the state of the law at the time it was done, and, if unlawful, then we have seen, by the decisions of this court above cited, that no repeal of the law which rendered such act unlawful can make it lawful or valid.

The plaintiffs' action to recover for the unlawful act does not depend upon the statute, except so far as the statute gives character to the act at the time it is done. The only necessity of referring to the statute at all, for the purposes of sustaining the action, is to determine whether, upon the principles of the common law, a right of action exists in favor of the plaintiffs. While the learned counsel for the appellant admits the force of this reasoning, and concedes that the party may recover when the wrongful act done under the repealed statute is of such a nature that an action upon contract may be maintained to redress such wrong, he very earnestly contends that he has no remedy if he can only enforce it by an action of tort. His argument seems to be based upon the idea that because the constitution of the United States, and of this State, provide that no law shall be passed impairing the obligation of contracts, the legislature cannot, either by the repeal of an act or by affirmatory statute, divest a party of the right to maintain an action upon a contract where the contract relation becomes once fixed between the parties, and that it makes no difference whether such contract relation arises by express contract or indirectly out of the violation of a statute. This is undoubtedly a