
    Pike et al. v. Robert Cummings.
    1. When an assessment for a street improvement is payable in annual installments, some of which have been paid and others remain -unpaid, and it appears that those paid were in excess of the rate limited by law, such excess should be deducted from subsequent installments, not ratably but in the order in which they mature.
    £. When such subsequent installments remain unpaid, the same still being excessive, no penalty for non-payment attaches.
    Error to the District Court of Lucas County.
    In 1871, the city of Toledo passed an ordinance for the improvement of a certain street, the cost and expense whereof (less the cost of street crossings), were to be assessed npon abutting property, payable in ten annual installments. The estimated cost, as reported by tbe city civil engineer, was $69,767.26. Tlie work was completed in 1873, when tbe .actual assessable cost was ascertained to be $51,274.67. Of tbe estimated cost tbe sum of $943.13 would have been assessable upon lot number 46, belonging to Louis II. Pike, plaintiff in error; but of the actual cost, the sum of $794.86 was the full proportion assessable upon said lot. On tbe basis of the estimated cost, the animal installment on lot 46 would have been '$94.31, while, upon the basis of actual cost, the annual installment (less interest) would have been $79.48. In 1871 and 1872, respectively, assessments were certified to the auditor, and placed upon the duplicate for collection, by tlie treasurer •of the county, upon the basis of the estimated cost. The actual ■cost not having been ascertained at that time these installments -were duly paid.
    In 1873, the third installment, npon the same basis, was certified, which, including interest, amounted to $162.44. This assessment, however, being in excess of ten per cent, of the value of tbe property (the maximum allowed by statute for any single year), was reduced to $142. This sum remaining unpaid, tbe penalty for non-payment was attached, whereupon ilie plaintiff, still claiming tbe amount to be excessive, and having tendered tbe amount admitted to be due to tbe treasurer,, brought the original action in the court of common pleas, to-enjoin the' collection of the excess and also of the penalty.
    In the court of common pleas a decree was rendered for the-plaintiff, from winch defendant appealed to the district court,, where, upon final hearing, the j)etition was dismissed.
    
      Pilee dk Hall, for plaintiffs in error.
    
      Frank H Hurd, for defendant in error.
   By the Court.

In no event can the property of the plaintiff be assessed for more than its ratable share of the actual cost, and expense of the improvement; and not even the full amount of such proportion, if that exceeds the limits of twenty-five-per centum of its value, as fixed by section 543 of the municipal, code.

The rule in such cases may be thus stated: where annual assessments are made upon the estimated cost and expense of an improvement, and some of the installments have been paid,, and others remain unpaid, and it turns out, when the actual assessable cost is ascertained, that the amount paid on installments based upon the estimated cost was in excess of the rate required by the actual cost, such excess should be allowed and credited on subsequent installments, not ratably, but in the-order in which subsequent installments may mature.

And when installments already paid are shown to be in excess of the rate limited by section 543 of the municipal code-as amended, such excess should, in like manner, be deducted •from subsequent installments. And for the non-payment of installments which are excessive,, no penalty can be attached.

Judgment reversed, and ea/ase remanded.  