Judgment *423modified and affirmed as modified. See journal entry.

It appearing that the plaintiff in error A. K. Spencer as treasurer of Cuyahoga county, Ohio, was entitled by statute to receive the five per cent penalty added to the delinquent personal tax list as and for his compensation for the collection thereof as treasurer the court find that the judgment is excessive to the extent of five per cent, of the total sum collected, and that the judgment of the common pleas court in favor of the defendant in error and against the plaintiffs in error should have been for three thousand four hundred eleven dollars and fifty cents, ($3,411.50) and that the excess of the judgment over and above that amount is contrary to law, it is therefore, ordered, considered and adjudged that said judgment of the common pleas court of Cuyahoga county be, and the same hereby is, modified by reducing it to the sum of $3,411.50 with interest thereon from the date of the judgment in the common pleas court of Cuyahoga county, to-wit: December 27, 1912, and as so modified the same is affirmed.

It is further ordered and adjudged that each party to this action pay their own costs in this court, taxed at $........and in the court of appeals of Cuyahoga county, taxed at $.........