On Rehearing.

— The count sustained is as follows:

“Plaintiff alleges that defendant is indebted to the plaintiff in the sum of fifty thousand ($50,000.00) dollars *213for so much money received by the defendant for the use of the plaintiff.” This count is not in the language of the statutory form of a common count, Section 1150 Gen. Stats., but it is not fatally defective. A common count for money payable by the defendant to the plaintiff for money received by the defendant for the use of the plaintiff, for excess freight charges is "not required to state that the charges were unreasonable or excessive or were in excess of the prescribed rates. The statement in the bill of particulars that the charges complained of were in excess of the rates fixed by the Railroad Commissioners does not affect the right to use the common count for any proper recovery under it. The statute in express terms provides that the freight rates fixed by the Railroad Commissioners shall be held and deemed prima facie reasonable and just. The statutory penalties for violations of a prescribed rate cannot be enforced if it is shown that the prescribed rate is unreasonable.

A rehearing is denied.