In Westlake & Button v. St. Louis (1882) 77 Mo. 47, 46 Am. Rep. 4, the court, holding that money paid for a water license and sought to be recovered had not been voluntarily paid, said: "Here the parties who paid objected and protested from the first. They vainly called the attention of the officers appointed to assess and collect the amount of the water license, to the fact that such amount was in excess of that allowed by the ordinance; they in vain appealed to the board of water commissioners. The only answer returned in each instance was, 'Pay, or we will turn off the water.' It is easy to see that in such circumstances the payments were not made voluntarily. They were made under what has been aptly termed 'moral duress;' the parties paying the excessive amount, and those receiving it, were not on equal terms. The city officials possessed the power, and they threatened to exercise it, of cutting off the water supply of Westlake & Button, unless the illegal demands already mentioned met with immediate compliance. If this conditional threat had been carried into execution, the foundry of the applicants for license would have been forthwith closed, and from sixty to one hundred hands thrown out of employment. The payment of the excess was, therefore, as much under compulsion as if the city officials had been armed with a warrant for the arrest of the person or the seizure of goods, in which case, but one opinion would be entertained as to the nature of the payment, if made." And it was pointed out that a tender of a sum smaller than that demanded was unnecessary where it was apparent that such tender would be a nugatory act.

And in St. Louis Brewing Asso. v. St. Louis (1897) 140 Mo. 419, 37 S. W. 525, 41 S. W. 911, the court, following the Westlake decision, held that an excessive water charge paid under compulsion might be recovered.

In American Brewing Co. v. St. Louis (1904) 187 Mo. 367, 86 S. W.

similar case, the court said: "From the fact that the plaintiff is wholly dependent upon the city for its supply of water, the fact that it will have to close its business unless it gets water from the city is logically inferable, for it is a matter of common knowledge that beer is composed mostly of water and cannot be made without it. If the city requires water licenses to be paid for six months in advance, it is a fair inference that it will refuse to let plaintiff have water, or, in other words, will shut off its water supply, if it is not so paid; and if the collector exacted 11 cents per 100 gallons, when he was only entitled to charge the plaintiff 1 cent per 100 gallons, be true, as the petition alleges, it follows that the petition states such facts as bring this case within the rules laid down in the cases of Westlake & Button v. St. Louis, and St. Louis Brewing Asso. v. St. Louis (Mo.) supra, and, this being true, the learned trial court should have overruled the demurrer to the petition."

In Piedmont Power & Light Co. v. L. Banks Holt Mfg. Co. (1922) 183 N. C. 327, 111 S. E. 623, the defendant sued for charges made for electricity furnished, the defendant filing, as a counterclaim, the amount collected by the plaintiff between November, 1918, and June, 1920, in excess of 1 cents per kw. hr., which rate the defendant had agreed to pay, although the original power contract provided for a rate of 1 cent per kw. hr., for five years from April, 1916. The defendant, so it appeared, relying on this contract, had sold its steam-power plant, and, although assenting to an increase to 12 cents per kw. hr., did not agree to a further increase to 2 cents per kw. hr., although it paid such rate for some eighteen months. The court declared that if the extra half-cent rate was paid under duress it might be recovered, and that within this rule are payments made under apprehension that the payer's business will be stopped on the failure to pay the money. It was said: "The manufacturing company had scrapped

its steam plant, and the court must take judicial notice that, at this time, there was a chaotic condition in industry, so that it was practically impossible for the defendant to arrange for power elsewhere, and, in view of the testimony that in 1919 the protest was so vigorous that the defendant was trying to get power elsewhere, and that in June, 1920, it positively refused to pay this price, the matter should be referred to the jury upon the instructions asked and refused, whether the payment was made under duress or not. It was useless to protest, and the law does not require the doing of a vain thing."

In Koenig v. People's Gaslight & Coke Co. (1910) 153 Ill. App. 432, the court stressed the fact that the recovery of money paid depended upon the payee's right to retain it. That case was an action brought to recover a payment of $144.60 for gas, made by the appellee when the appellant threatened to cut off the former's gas at a place other than that where the gas in dispute was consumed. The court said: "Counsel predicated the right to recover upon the fact that the money was paid under protest and there was 'a sort of moral duress' which coerced the payment. The contention of counsel for appellee, being admitted, showed no cause of action and no right of recovery. The right to recover rested upon appellee's showing by his proofs that the money sued for was money which appellant, in equity and good conscience, had no right to retain. If the money was rightfully due, the fact that the elements of protest and duress were present when it was paid vests no right to recover it back." It was declared that if the company was supplying gas at the appellee's place of business under a contract, it might cut off the supply of gas at that place for failure of the appellee to pay for gas consumed elsewhere. In conclusion it was said: "As the evidence stood at the close of all the proofs, it may be said it was for the jury to say by their verdict whether the money sued for was illegally exacted, and therefore in equity and good con

science ought not to be retained. But this right of the jury must be environed with instructions correctly stating the legal principle which should guide them in arriving at a conclusion as to the fact. Appellant tendered and the court refused to give this instruction: "The court instructs the jury that the burden of proof is on the plaintiff to prove that he did not owe the defendant the amount which he paid the defendant, and if you believe from the evidence that the plaintiff owed the defendant substantially the amount paid by the said plaintiff, then your verdict should be for the defendant, People's Gaslight & Coke Company, even though the payment was made by the plaintiff under protest and compelled by the fear that his gas would be shut off.' This instruction should have been given, and its refusal was reversible error."

In State ex rel. Chadron v. Intermountain Light & P. Co. (1923) — Neb., 194 N. W. 793, a case not within the scope of the annotation, it was held that a surcharge to the maximum rates for electricity could not be justified on the ground that the city and public had consented thereto by paying the same, where it was clear that such consent and payment were the result of a threat to discontinue the service to those not paying.

In a few cases the courts have held that the circumstances thereof were not such as to constitute duress within the principle set forth above, warranting recovery of payments made thereunder. See the reported case (MANHATTAN MILL. Co. v. MANHATTAN GAS & E. Co. ante, 176); Bray v. Philadelphia (1881) 11 W. N. C. (Pa.) 202; Slater v. Burnley Corp. (1888) 59 L. T. N. S. (Eng.) 636, 36 Week. Rep. 831, 53 J. P. 70.

In Bray v. Philadelphia (1881) 11 W. N. C. (Pa.) 202, an action to recover delinquent water rents paid by the plaintiff, judgment was entered for the defendant on the ground that the threat of the city to cut off the water unless the money was paid did not constitute duress entitling re

plied $4,170 deposited in the Citizens' State Bank of Manhattan, Kansas, of which bank he was president. He has appealed, and complains, first, that his challenge for cause should have been sustained, to one of the jurors who sat in the case. The juror, Fred Brucks, was born in Germany, was fifty-two years old, had lived in this country twenty-six years, and in the county seven years. He was a farmer, and lived in a part of the county remote from the county seat, and usually did his trading in another county. He had heard nothing about the facts of the case, did not know the defendant, and had no bias or prejudice against him. The challenge was based solely upon his imperfect understanding of the English language. His examination disclosed that he spoke German at home and at some of the stores where he traded, but he spoke English with his English neighbors, could read English "some," and understood the common English words. To several of the questions asked him upon his examination, he answered, "I can't understand," or "I don't know what that means," or gave some similar answer. In this state, while a knowledge of the English language is not made a statutory requirement for jury service, the business of the courts is conducted in the English language, and of necessity one who participates in the proceedings of the court should be sufficiently familiar with the English language that his participation in the business of the court may be done with intelligence.

A juror of foreign birth, who cannot understand the language in which the business of the court is conducted, is as much disqualified to serve as juror as though he were deaf, or had some other infirmity which made it impossible for him to participate intelligently in the busiress before the court. Sullenger v. State, 79 Tex. Crim. Rep. 98, 182 S. W. 1140; State v. Powers, 181 Iowa, 452, 164 N. W. 856; Re Impaneling of Petit Jury, 6 Porto Rico Fed. Rep. 685; State v. Push, 23 La. Ann. 14;

lish language well enough to understand the testimony, the argument of counsel, and the instructions of the court, is not disqualified for that reason. Essary v. State, 53 Tex. Crim. Rep. 596, 111 S. W. 927; Myers v. State, 77 Tex. Crim. Rep. 239, 177 S. W. 1167; Cromer v. Borders Coal Co. 152 Ill. App. 555; State v. Dent, 41 La. Ann. 1082, 7 So. 694; State v. Casey, 44 La. Ann. 969, 11 So. 583; State v. Duestrow, 137 Mo. 44, 38 S. W. 554, 39 S. W. 266.

Naturally, there are instances where a juror of foreign birth has some knowledge of the English language, and in such a case it has usually been held that it is for the court to decide whether he is competent to comprehend all that might be said in his hearing. People v. Davis, 4 Cal. Unrep. 524, 36 Pac. 96; Atlas Min. Co. v. Johnston, 23 Mich. 36, 1 Mor. Min. Rep. 388. In this state it is the rule that the qualifications of a juror who has testified in regard thereto in court is a question of fact and a matter of judicial discretion, to be determined by the court, and its decision thereon will not be disturbed on appeal, unless it clearly appears that the court has made a mistake or abused its discretion. State v. Molz, 91 Kan. 901, 139 Pac. 376; State v. Stewart, 85 Kan. 404, 116 Pac. 489. See also Shmana v. Swift & Co. 113 Kan. 340, 214 Pac. 567, and cases there cited. We think the court might have excused this juror without committing error (State v. Miller, 29 Kan. 43), but the court saw this juror, and had an opportunity to observe his apparent intelligence, and many of his answers show comprehensive knowledge of our language. Some of his answers, which indicated that he did not understand, might have been from a lack of familiarity with proceedings in court. Taking the entire record, we cannot say that the court abused its discretion, or that