thereof, committed to jail; and in such case the court may recognize the witnesses for the state to appear at the same time and testify."

a

The case in 42 O. S., 383 (Mitchell v. State), we think, does not apply to this case, because there a conviction of the offense of an assault could have been shown by evidence adduced on either trial, or under either indictment. It was not so here. The finding of a person guilty under one indictment would not be equivalent to finding him guilty under the other, unless the variance was a more immaterial one-one not tending to the prejudice of the defendant variance as to names but not as to persons. The court, on the former trial, found that it did tend to prejudice the defendant. The defendant was urging the mistake in the indictment as a ground for his discharge, and the court would not have been justified in discharging the jury on the former trial if it were an immaterial variance and one that did not tend to his prejudice. The court must have found that it was a material variance, and, so finding, deemed it a case for the application of this statute. There was an attempt to charge a proper offense but there was a mistake in charging it, because it was charged to be committed against another person than the real owner of the money. Ownership was a material fact in the indictment. Under such circumstances the statute should be applied in order to prevent a failure of justice. If the contention of counsel is correct, that the jury, instead of being discharged, should have been instructed to acquit, then on the assertion of such a mistake as this, there would be no possibility of convicting a man for a proper offense.

We think, in view of all the circumstances of the case, and all the considerations urged by counsel, in argument, that it can not justly be said that this defendant has been twice placed in jeopardy for the same offense.

Having fully considered the questions presented and naturally arising in the case, our conclusion is that the judgment of the court below should be, and it therefore is, affirmed.

J. P. Crawford, for plaintiff in error.

L. W. Wachenheimer, Prosecuting Attorney, for defendant in error.

RIGHTS OF LESSOR AND LESSEE IN FUND DERIVED FROM LAND WHICH HAS BEEN APPROPRIATED.

[Circuit Court of Hamilton County.]

HENRY J. GOOD V. CHARLES F. DROSTE.

Decided, July, 1906.

Appropriation-Property under Lease-Subsisting Liability of Lessee for Rent-Interest of Lessee and Lessor in the Award.

Land under lease with privilege of renewal was condemned for railway purposes, and a jury fixed the value of the part taken with damages to the residue, and in answer to a special interrogatory found that $15 of the monthly rental of $115 was taken by reason of the appropriation. Thereupon the court, in the order of distribution, impounded $1,200 of the share of the verdict awarded by the jury to the lessee for payment of rent during the additional term in the event the lease was renewed, or to be paid in full to the lessor in the event the lease was not renewed. Held: That this was error, and that the court should have determined the conflicting claims of the lessor and the lessee in the award.

GIFFEN, J.; JELKE, P. J., and SWING, J. concur.

This controversy arises upon the distribution of a fund awarded by the jury in proceedings to appropriate property commenced by the Trustees of the Cincinnati Southern Railroad.

The defendant in error Droste, leased to the plaintiff in error, Good, two lots, one on the west side and the other on the east side of Carr street in the City of Cincinnati, for a term of ten years from August 1, 1903, with the privilege of renewal for an additional term of ten years, at a yearly rental of $1,380, payable in monthly installments of $115.

The trustees appropriated a strip of ground forty feet in width across the middle of the lot on the east side of Carr street. The jury awarded damages as follows:

First. For the strip of land taken
Second. Value of the building

$1,693,71 1,800.00

Third. Damages to the residue of the property.... 1,143.79

15×12

and apportioned the same as follows: To Henry J. Good, $2,864.50; to C. F. Droste, the owner, $1,773.

In answer to a special interrogatory, the jury found that fifteen dollars of the monthly rental of one hundred and fifteen dollars was taken by reason of the appropriation.

The court on motion of Droste impounded twelve hundred dollars of the sum awarded to Good to provide for the payment of rent during the additional term of ten years in the event the lease was renewed or to be paid in full to Droste in the event the lease was not renewed.

It is held in the case of Foote v. The City of Cincinnati, 11 Ohio, 408, that the liability of a lessee to pay rent subsists, notwithstanding the leasehold has been appropriated for a street; but we see no good reason why the lessee should be held for rent during the renewal period before his election to renew. While the jury apparently allowed Good the full amount of the rent at $15 per month for the additional term of ten years, yet an analysis of the apportionment made by the jury will show this not to be the fact. The present value of the annual rental of $180 for the balance of the original term, to-wit, eight years, upon a basis of five per cent. is according to the annuity tables, $1,156.17, which sum or its equivalent in monthly installments must be paid by the lessee to the lessor, and adding this sum to the amount awarded to the lessor, it amounts to $2,929.17, being $91.67 more than the jury awarded for the entire premises exclusive of the value of the building. Deduct the sum of $1,156.17 from the amount awarded to Good, and it leaves $1,708.33, which represents the sum awarded to Good, as the value of his interest in the building; while the $91.67 represents the sum awarded to Droste for his interest in the building.

Neither the jury nor the court found in terms the respective interests of the lessor and lessee in the building. It is contended by counsel for Good that he furnished substantially the entire sum. If this be true, then the apportionment made by the jury should be confirmed by the court; otherwise it should ascertain from the evidence the interest of each in the building for which the jury awarded the sum of $1,800, and render judgment accordingly. We think the court is authorized under the statute

to determine the conflicting claims of the lessor and lessee. Skerret v. Presbyterian Society, 41 O. S., 606.

The judgment will be reversed and cause remanded for further proceedings.

John C. Healy and Kelley & Hauck, for Good, plaintiff in

error.

Charles F. Droste, for defendant in error.

DISCHARGE OF PRISONER FROM PENITENTIARY.

[Circuit Court of Franklin County.]

IN THE MATTER OF APPLICATION OF IRA BAILUS.*

Decided, June, 1906.

Meaning of the Words "Period of Imprisonment”—Discharge of Prisoner-Restoration to Citizenship-Ministerial Acts-Section 7388-8.

WILSON, J.; SULLIVAN, J., and DUSTIN, J., concur.

The term "period of imprisonment" as used in Section 7388-8, of the Revised Statutes, means the term of sentence, less the time which, under the rules of the penitentiary, may be deducted for good conduct.

The discharge of a prisoner by the warden of the penitentiary, and the restoration to citizenship by the certificate of the governor, under the provisions of said section, are ministerial acts and, to be effective, must be in compliance with law.

The acts in this case were not in compliance of law and were a nullity. Otherwise these officers could discharge a prisoner at will.

The original commitment was authority for the retaking of the prisoner.

Judgment affirmed.

*Affirmed by the Supreme Court without report, 74 O. S.,

Adverse Possession-Mistake in Description-Title-Meaning of Phrase "With Half Section Line”—Injunction.

1. Where the description contained in a deed reads "north with the half section line," the phrase denotes direction and not necessarily that the line intended is identical with the half section line, and the line connecting the corners and not the half section line must be taken as the dividing line.

2. But where it was believed by the grantor and the grantee that the corners were located in the half section line, and both have acted on that belief, the grantee acquires title by adverse possession to the strip lying between the half section line and the true line.

GIFFEN, J.; JELKE, P. J., and SWING, J., concur.

The plaintiff commenced this action to enjoin the defendant from trespassing upon or using his land as a driveway, and from erecting and maintaining a fence on or across his property.

The road in controversy is located in the southwest quarter of Section 22, Town. 4, Range 1, in the Miami Purchase. The land described in the petition and also in the deed offered in support of the plaintiff's ownership, is east of and adjoining Section 22, no part of the same being within the boundaries of such section. The description of the plaintiff's land begins evidently by mistake at the southeast corner of the section instead of the southwest corner. It is manifest, therefore, that the plaintiff has failed to make out a case and his petition must be dismissed.

The defendant by answer, asks affirmative relief and prays that his title to said roadway, which was defined by occupancy and user, and by the deeds conveying the same, be quieted against any and all claims of the plaintiff. The deed under which he claims title to the premises in controversy, contains the following description:

"Lying and being in County of Hamilton, State of Ohio, Township 4, Range 1, Section 22 in the Miami Purchase, be