in the same manner as if the judgment had been rendered in the court of common pleas. [51 v. 57, ? 531; S. & C. 1108.]

26733. Proceedings when judgment of justice reversed. When the proceedings of a justice of the peace are taken on error to the court of common pleas, in manner aforesaid, and the judgment of such justice is reversed or set aside, the court shall render judgment of reversal, and for the costs that have accrued up to that time, in favor of the plaintiff in error, and award execution therefor; and the cause, except when the reversal is because the justice had no jurisdiction of the plaintiff in error, or of the subject of the action, shall be retained by the court for trial and final judgment, as in cases of appeal. [67 v. 115, 532.]

Common pleas, on reversal, retains cause for trial, 4 O. S. 593, except when reversal is because justice had no jurisdiction; contra, 17 O. S. 641 (before amendment). When the judgment of a justice is reversed on error, it is the duty of the court to render judgment for the costs of the plaintiff in error up to that time, including the costs in the justice's court, 22 O. S. 371; see, generally, 31 O. S. 634. 6565 provides for taking bills of exceptions on trials before justices; 2 6610 for exceptions in forcible entry and detainer cases. In proceedings to reverse, etc., judgments of the justice in such cases, leave must be obtained of the common pleas to file the petition in error in that court, Id.

? 6734. Decrees in chancery, how reviewed. The final orders or decrees of courts of chancery heretofore rendered, or which may hereafter be rendered, in any chancery proceeding pending on July 1, 1853, may be reviewed in the manner provided in the five succeeding sections, and within the time prescribed in 2 6723; and all suits in chancery pending at that time may be prosecuted to final decree in like manner as if this title had not taken effect. [51 v. 57, ? 533; S. & C. 1109.]

26735. Bill of review. When a party, complainant or defendant, seeks a review of a final decree or order in chancery, he may file in the clerk's office of the court in which the decree was rendered a short petition, setting forth the names of the parties to such suit, the substance of the decree or order sought to be reviewed, and an assignment of the errors relied upon to reverse or set aside such decree or order, and a prayer for such reversal; and errors in law and in fact may be assigned at the same time. [46 v. 90, 21; S. & C. 1110.]

par

2 6736. Process thereon. On the filing of such petition, the clerk shall issue a summons against all the ties to the original suit, except such as are petitioners in the suit of review, as in other cases. [46 v. 90, ? 2; S. & C. 1112.]

2 6737. Original papers to be used. All the original papers and evidence in the original cause, and the entries made, shall be used on the hearing of the bill of review; and it shall not be necessary for the party to procure a copy of the record of proceedings in the original cause, nor shall it be necessary to recite, in the bill of review, any of the facts set forth in the pleadings in the original cause. [46 v. 90, ? 3; S. & C. 1112.]

26738. How decree in circuit court may be stayed. When a petition for review is filed in the circuit court, a judge of the court may, in vacation, upon good cause shown, stay proceedings on the former decree until the next term of the court in which such proceedings are pending; and the judge shall direct the nature and the amount of security to be given by the party applying for such stay. [82 v. 38; 49 v. 26, § 1; S. & C. 1112.]

2 6739. How stayed in common pleas. When such petition is filed in the common pleas, the judge of such court may exercise the same power, on the same terms. [49 v. 26, 2; S. & C. 1112.]

26740. Petition in error in the nature of a bill of review. A petition in error, in the nature of a bill of review, may, on leave of the supreme court, or a judge thereof, be filed in the supreme court, to reverse or modify any decree in chancery, that heretofore has been or that hereafter may be rendered in any circuit court in this state, in which the title to real estate is in controversy, or the amount in controversy is not less than five hundred dollars; and the proceedings upon such petition in error shall, in all respects, be governed by the provisions of the six preceding sections of this chapter; but this section shall not extend to suits that have been commenced since the first day of July, 1853, and the petition in error must be filed within three years after the rendition of the decree so sought to be reversed or modified. [82 v. 38; 53 v. 178, ? 4; S. & C. 1152.]

CHAPTER II.

MANDAMUS.

26741. What is mandamus. Mandamus is a writ issued in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station. [51 v. 57, 2 569; S. & C. 1124.]

Attorney's fees. Mandamus to compel payment of attorney's fees, see Commissioners of County, infra.

Auditor of county. Mandamus lies against the auditor of the county to compel him to enter tax upon duplicate, 5 O. S. 444, but not until the time arrives for making it up, 5 O. S. 590; to compel transfer of real estate on duplicate, 30 O. S. 276, but not until evidence of title is presented, 22 O. S. 469; to compel allowance of constable's fees, 9 O. 25, and fees for sustenance of jury, 19 0. 116; to compel refunder of taxes paid by auditor's mistake, 24 O. S. 330; to compel payment, for children's home, 43 O. S. 311, of interest on township bonds, 7 O. S. 327. It does not lie to compel payment of claim before allowance by commissioners, 12 0. 54; 28 O. S. 589; nor to pay costs in prosecution for breach of peace when defendant proves insolvent, 12 O. S. 429; nor to compel payment of amount allowed by commissioners on contract for work not let to lowest bidder as required, 22 O. S. 546; nor payment of jury fees in excess of number of days jurors served, 34 O. S. 137; nor to compel payment of claim when he has no right to fix amount to be drawn, and it is not ascertained, 1 O. S. 323. When it does not lie against auditor, under ? 1038, to compel him to call the attention of the county commissioners to erroneous taxes charged and collected in previous years, 11 Bull 39.

Auditor of state. Mandamus lies against auditor of state to compel payment of appropriation, 36 O. S. 211; 37 O. S. 1; see 20 O. S. 1; to compel issue of bank notes under state law, 6 O. S. 318; to accept return of bank for taxation, 6 O. S. 45; to apportion taxes, 15 O. S. 482. It does not lie to compel auditor to pay for articles not within specific appropriation, 5 O. S. 583; nor to allow payment of extra compensation of sergeant-at-arms of legislature not provided for by law nor properly ratified, 34 O. S.

218.

Board of education. Mandamus lies against board of education to compel it to furnish text-books to schools, 35 O. S. 368; to appropriate money for payment of bonds for school purposes, 27 O. S. 96; to release sureties of county treasurer from liability for school funds by special act, 38 O. S. 3; refused to compel directors of school district to admit colored children to schools for white children, 21 O. S. 198; refused to compel board to award contract for construction of school building to one not the lowest bidder, 42 O. S. 374; see 2 C. C. R. 510; 45 O. S. 555; 19 Bull 173.

Board of public works. It lies against the board of public works to compel approval of "plan," 39 O. S. 628; to compel issuance of permit to tap sewer on payment of usual fee, i C. C. R. 501; to compel approval of bond of city contractor, 43 O. S. 46.

City clerk. Mandamus refused to compel city clerk to issue certificates of election, 7 O. S. 355; refused to compel him to advertise ordinance for street railroad, 38 O. S. 644.

City council. Allowed to compel city council to accept bond, 11 O. S. 544; levy taxes, 14 O. 252; to issue orders for transfer of funds to proper officers, 19 O. 178.

Clerk of court. Refused to compel clerk of court to recanvass returns, 26 O. S. 216, and count returns excluded by him, 14 O. S. 315; refused to compel him to issue certificate of election when election was not held at time fixed by law, 20 O. S. 167; refused to compel him to abstract votes for person for office not required to be filled at election, 44 O. S. 628. It lies to compel clerk, in cases of change of venue, to make the certificate required under 2550; 43 O. S. 324; to issue writ of execution, 3 C. C. R. 581.

Commissioners of county. The writ was granted to compel commissioners of county to issue county bonds, 1 O. S. 77; 33 O. S. 169; to assess taxes to pay interest on county bonds, 6 O. S. 280; to award contract, 21 O. S. 311; to compel approval of sheriff's bond, 10 O. S. 129; approval or disapproval of sufficiency of sureties of recorder's bond, 31 O. S. 451; to finish improvement under alleged unconstitutional act, 17 Ó. S. 558; to pay assistant prosecuting attorney, 40 O. S. 331, 332; 20 O. S. 421; refused to pay assistant prosecuting attorney under act 1865, 24 Ó. S. 597, and act 1872, 25 O. S. 13, 14; refused to pay prosecuting attorney to prosecute criminal complaints before magistrates, 21 O. S. 648; refused to pay attorney assigned to defend prisoner under act 1875, 26 O. S. 599; refused to levy tax for satisfaction of judgment where there was no unreasonable delay, 19 O. 415; and refused in the following cases: To compel commissioners to accept official bond of treasurer when election was not authorized, 7 O. S. 126, or sheriff's bond adjudged not entitled to office, 14 O. S. 515; to refund taxes on property alleged to be exempt, 31 O. S. 271; to compel payment of claim on which it was their duty to act, and against the validity of which they had decided, 26 O. S. 364; 9 Bull 322 (the remedy is by appeal to common pleas, Id.); to compel subscription to railroad when enjoined therefrom, 7 O. S. 278; to erect public building, 1 O. S. 30, or build bridge, 31 O. S. 211, for this would be controlling their discretion, Id.

Commissioners of city. Compelled by mandamus to assess tax for street improvement, 31 O. S. 592, but not compelled to ascertain floating debt, 24 O. S. 536, nor reinstate chief of fire department removed by them for incompetency, 26 O. S. 24.

Condemnation proceedings. Mandamus lies to compel city solicitor to furnish vouchers to pay compensation in condemnation proceedings, 26 O. S. 109, but does not lie to enforce the verdict in such proceedings, 17 O. S. 103; 22 O. S. 534.

Contract. Mandamus does not lie to enforce the performance of a contract involving no trust, 16 O. S. 308; see 22 O. S. 546. It lies to compel the letting of a contract for public work to the lowest bidder, 19 O. S. 97; 20 O. S. 425; but not when the lowest bidder refuses to give the bond required, 21 O. S. 311; or when no notice is given or the notice is insufficient, 31 O. S. 415, or the bid is not in conformity with the notice, Id.; 35 O. S. 136; or where the difference between the accepted and lowest bids is not shown, the application unreasonably delayed, and no good reason appears why a remedy was not sought by injunction, 18 O. S. 386; or where all the bids have been rejected in good faith, 1 C. C. R. 194; 3 C. C. R. 542.

Corporation. Mandamus will not lie to compel a corporation to issue bonds, 29 O. S. 174, or certificate of stock, 1 Bull 140, or transfer stock, 42 O. S. 30; 11 Bull 103.

Court. It will lie to compel trial of case by a court, 5 O. 542, and compel correction of records, 8 O. S. 201, and compel issuance of warrant for removal of patient from asylum by probate judge of county from which patient was sent, 7 O. S. 154, but not by a probate judge of a county from which the patient was not sent, 17 O. S. 149. See Judge, infra.

Elections. It will lie to compel sheriff to issue election proclamation, 38 O. S. 344. Will not lie to compel election canvassers to exclude returns, 43 O. S. 652; lies to compel admission of candidate to witness opening of returns and abstract of votes, 8 Bull 191. County Auditor not to count unsealed returns, 35 O.Š. 64.

Governor. It lies to compel governor to issue proclamation, 5 O. S. 528, but rot to compel him to count H. L. M. and Henry L. M. as different names, 38 O. S. 599.

Injunction. It does not lie to compel a party to do what, by injunction, he is prohibited from doing, 7 O. S. 278.

Insane asylum. It does not lie to compel superintendent of insane asylum to take back patient, 38 O. S. 496.

Insurance commissioner. It does not lie to compel insurance commissioner to issue certificate to corporations of foreign state to do business here, the laws of which do not entitie Ohio corporations to do business there, 39 O. S. 486; nor to compel superintendent of insurance to admit foreign company to transact business in this state when on inquiry he is not satisfied with its financial soundness, 42 O. S. 103.

Jailer. It lies to compel jailer to take prisoner before commissioner of insolvents, 19 O. S. 581.

Judge. It lies to compel a judge to sign a bill of exceptions, 22 O. S. 207; 43 O. S. 16; but not when the bill is untrue, and the power of determining whether it is true or not is vested with the judge, 4 O. 351; 22 O. S. 207. The application in such case should be accompanied by the bill, 22 O. S. 207; but where the alternative writ commands a judge of an inferior court to allow and sign a certain bill of exceptions, filed with the petition in the case and averred to be true, and which was tendered to him in due time, or to show cause why he does not sign the same, and he fails to answer, or answers and fails to show a sufficient cause, the peremptory writ should command him to sign the particular bill named, 43 O. S. 16. Okey and McIlvaine, JJ., dissented. It lies to compel judge to accept surety and suspend jurisdiction by state court, 15 O. S. 377, but not after judgment, 7 O. S. 451. It does not lie to compel court to hear testimony on application to admit accused to bail, 24 O. S. 196, nor to compel court to accept attorney as bail bond, 11 Bull 154. See Court, supra.

Justice of the peace. It does not lie to compel justice to take appeal bond after ten days, 3 Bull 792, nor to sign bill of exceptions he claims to be untrue, 3 Bull 428, nor one presenting no question of law or of the competency or tendency of the evidence, 22 O. S. 537.

Limitation. There is no statutory limitation as to the time within which a writ of mandamus may be obtained, 32 O. S. 236. Liquidation of claim necessary before payment enforceable by mandamus, 26 O. S. 365.

Militia. The writ lies to compel city to furnish armory to militia, 1 Clev. R. 31.