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fire commissioners appointed in his place Peter with him for nearly six months she left him, Seery inspector of combustibles, at the same sal. alleging cruelty and neglect, and having a priary, and he iinmediately entered upon the dis- vate income of £130 a year, offered him £50 a charge of the duties of the office and received the year or £300 cash if he would let her alone. salary thereof until the plaintiff was reinstated The man has now brought suit for the restituin the office. This action is to recover the salary tion of his conjugal rights denying that he is acof the office during the time the plaintiff was tuated by mercenary motives, and alleging that kept out of the office by the action of the fire what he desires is the society of his wife, who is commissioners. · At the trial term it was held dear to him. Sir James Hannen asked, with that the pluintiff could recover, and judgment slightly obvious contempt: “ What would comwas .rendered in his favor for the amount of sal. pensate you for the loss of a wife who has lived ary claimed. The defendant then appealed to a part from you since 1870 ?” But so the plaintthe general term of the court, and it reversed the ift insisted, the judge had no option but to judgment and granted a new trial.

give judgment, which he did in the following Roswell D. Hatch for appellant.

words: “This jurisdiction which I am asked to D. J. Dean contra.

exercise is one which is unknown in any other EARL, J.

country in the world, and I am never called (After stating the facts.) We are of opinion upon to exercise it but I do so with greatest rethat the judgment was properly. reversed. The luctance. I have never had a question of the office of inspector of combustibles was a public, kind before me which was not a question of salaried office, and during the period for which terms, and I think the present case is of that the salary is claimed, the office was actually held, nature. However, as I am called upon to exerand duties thereof were discharged by Seery, and cise my jurisdiction in the matter, I must prothe salary was paid to him. He was in office un- nounce a decree for the restitution of conjugal der color of appointment by competent authority rights as asked for. The decree, however, will He possessed the office and discharged its duties. stand over for three months before being enThat, under such circumstances, he took on the forced. I allow no costs." character of an officer de facto cannot be doubted. People v. White, 24 Wend. 540; People v. Cook,

SUPREME COURT RECORD. 14 Barb. 259; S. C. 8 N. Y, 67; Lambert v. The People, 76 Ib. 220. It is no longer open to question in this state that payment to a de facto officer,

(Now cases filed since last report, up to April 25, 1882.] while he is holding the office and discharging its duties, is a defence to an action brought by the

1123. Squire & Homer v. C. & F. Nachtrieb. Error to

the District Court of Crawford County. 8. R. Harris for de jure officer to recover the same salary. Dolan plaintiffs. v. The Mayor, 68 N. Y. 278; McVeany v. The 1124. Proctor Thayer v. Continental Life Insurance Mayor, 80 Ib. 15. But the plaintiff claims that

Company. Error to the District Court of Cuyahoga

County. R. J. Winters and C. E. Pennewell for plainthis action may be treated as one to recover of iff. the city damages for his wrongful dismissal from

1125. Robert Kerr et al. v. Charles Young et al. Error office. It is a sufficient answer to this claim that to the District Court of Crawford County. S. R. Harris the city did not dismiss him from his office.

for plaintiff. The fire commissioners were public officers and

1128. George W. Nelson v. John W. Vogan. Error to

the District Court of Columbiana County. Clark & Monot agents of the city. Maximilian v. The

Vicker and W. J. Jordan for plaintiff; Frost & MorriMayor, 62 N. Y. 160; Tone v. The Mayor, 70 Ib. son for defendant. 157; Hum v. The Mayor, Ib. 459; Smith v. 1127. City of Steuben ville v. George W. McGill. Error Rochester, 76 Ib. 513. The city is no more lia

to the District Court of Jefferson County. C. A. Reye

nolds for plaintiff. ble for their wrong in dismissing the plaintiff

1128. Christopher Butler v. John Shearer. Error to than it would have been if they had committed the District Court of Scioto County. Moore & Newman an assault and battery upon him: If the plaint- for plaintiff; W. A. Hutchins for defendant. iff has any remedy for the damages he has sus- 1129. Amos Christy et al. v. Commissioners of Ashta

bula County. Error-Reserved in the District Court of tained, it inust be by an action against the fire

Ashtabula County. Hutchins & Tuttle and R. P. Rancominissioners for his wrongfuļ dismissal, or by ney for plaintiffs; E. Lee and E. C. Wade for defend. au action against Seery to recover the salary which, as between him and the plaintiff, he

1130. Pittsburgh, Cincinnati & St. Louis Railway.Com. wrongfully received.

pany v. Emily E. Staley. Error to the District Court of

Warren County. Charles Darlington for plaintiff. Order reversed, and judgment absolute against

1131. Nancy. Pepple et al. v. Franklin Pricer et al. defendant.

Error to the District Court of Anglaize County. F. C.

Layton and Harrison, Olds and Marsh for plaintiffs. AN ENGLISH JUDGE ON CONJUGAL TROUBLES.




A painful case came before Sir James Hannen in the English probate and divorce division a few days ago. °In 1870 the widow of Sir P. Hesketh burgh Mutual Aid and Life Association. Quo warranto.

April 27tb-No. 1045. Ohio ex rel. v. The MiddleFleetwood, baronet, a woman of nearly 60, mar

April 28th-No. 1047. Ohio ex rel. v. The Standard Lille ried a tutor of 31, Henry Wills. After living | Asociation of America. Quo warranto.



Hon. John W. OKEY, Chief Justice; Hon. WILLIAM WHITE, Hon. W. W. JOHNSON, Hon. Geo. W. McILVAINE, Hon. NICHOLAS LONGWORTH, Judges.

Tuesday, April 25, 1882.

GENERAL DOCKET. No. 75. Lloyd 'v. Moore. Error to the District Court of Scioto County.


Where the judge, at defendant's request, gave to the jury a certain special charge, in addition to his general charge, which said special charge was erroneous, and afterwards having been requested by the jury to repeat his charge to them, repeated the general charge, but declined to repeat the special charge, there was no error in relusing to repeat the erroneous instruction.

Judgment afirmed.

1076. The State of Ohio ex rel. Attorney General v. Henry Heinmiller. In Quo Warranto.


1. Under section 1749 of Revised Statutes, the mayor of a city has power to suspend officers appointed by him under an ordinance, for neglect of duty, misconduct in office or other sufficient cause “and may appoint other persons to fill the temporary vacancy occasioned thereby ; and all such suspensions, and the cause thereof, and all such appointments, shall be by him reported to the council for their action at the next regular meeting thereafter." Held: 1st. That the council may, in its discretion, approve or disapprove such suspension. 2d. That the action of the council may be had upon such information as may come to its knowledge. 3d. The disapproval of such suspension by the council terminates the vacancy occasioned thereby. 4th. Upon the termination of such vacancy, the person appointed to fill it, ceases to be an officer of the city.

2. A petition in quo warranto prosecuted on behalf of the Statē by the Attorney General to oust an incuinbent of an office, need not set forth the name of the person claiming to be entitled thereto as is required by section 6766 of the Revised, Statutes in cases prosecuted by a person claiming to be entitled to the office.

back the pro rata proportion of the unearned premium in cash, nor to credit the same on tbe note. The noto was thereafter subject to such credit.

Judgment afirmed. 959. Cleveland, Columbus, Cincinnati & Indianapolis Railway Company et al. v. Hugh J. Jewett et al. Error to the Court of Common Pleas of Franklin County.


Judgment of ouster.

33. Otis B. Little v. The Eureka Fire & Marine Ins. Co. Error to the Superior Court of Cincinnati.


A policy of insurance, having one year to run, was delivered to the insured, without payment of the premium agreed on. In a few days, the note of the insured at sixty days was accepted for the premium, which was not paid at maturity, and remained in the hands of the insurer. After this, and within a reasonable time before tho loss, tbe insurer cancelled the policy, and notified the parties interested therein of such cancellation, and credsted on the note, a sum less than the pro rata proportion of the unearned prer ium.

The conditions of the policy provided, that it was not to be binding until actual payment of the premium, and that the insurance should be terminated at the request of the insured, in which case the company was to retain only the customary short rates for the time the policy was in force, also that the company might, at its option, terminate the insurance upon giving notice to that effect, and tendering a pro rata proportion of the premium for the unexpired term. Held : 1st. That by delivering the policy without actual payment of the premium, and by taking a note of the assured for the same, the company waived the condition that the policy was not binding unless the premium was actually paid. 2d. On failure of the assured to pay the note, the company, Inight, on giving reasonable notice thereof,before the loss, exercise its option to cancel the policy. 3d. As the note was past due and in the hands of the company at the time of such cancellation, it was not necessary to tender

WHITE, J. Held:

1. A railroad company may be sued in any county through or into which its road passes, without regard to the nature of the cause of action.

2. The appointment of a receiver to take from the defendants the possession of his property, cannot be lawfully made without notice, unless the delay required to give such notice will result in' irreparable loss.

3. In an action to prevent the consolidation of railroad companies, the election of directory for the new company, at a meeting of the stockholders held under sec. 3383 cf the Revised Statutes, will not justify, such an appointment against either of the coin panies, on the ground that part of the stockholders participating in the meeting have been inhibited from doing so by injunction.

Whether any of the stockholders were subjuct to the jurisdiction of the court allowing the injunction, is 8 question not now before this court.

The order appointing the receiver and the orders ontered in aid of such appointment are reversed and set aside.

46. Andrew Warner, administrator of Lucius Bartlett, v. Brighton Tanner, in person and as administrator of Chester Tanner. Error to the District Court of Geaugs County.

ORXY, C. J. T. & B. executed an instrument under seal, signed by two witnesses, and acknowledged by T. before a justice of the peace, in which instrument it is covenanted that T. leases to B. two acres of land (described in the instru. ment), with the use of water in adjoining lands of T. and privilege of conducting it in pipes “to a cheese house to be erected on said premises, T. reserve ing enough water to accommodate the stock kept on the farms of T. And B. is to build a cheese house on the premises, and agrees to pay T. for the use of the premi. ses and the privileges aforesaid, thirty dollars per annum on the first day of October, in each year, while the premises shall be used as and for the manufacture of cheese ; and wben the premises sl all no longer be used for such purpose, the premises, together with the privileges aforesaid, shall revert to T., said B. having the privilege of removing all buildings and fixtures put upon said premises by him."

Heid, that this was a lease to B. for life, provided he continued to use the premises for the manufacture of cheese thereon and paid rents, with the right at any time to remove the buildings and fixtures placed ou the premises by such lessee.

Judgment affirmed.

79. Leroy Orr v. Henry Kelton et al. Error to the District Court of Licking County. Judgment of the district court reversed and that of the common pleas af. firmed. There will be no further report.

83. 8. J. Hubbard v. T. Z. Riley, assignee &c. Error to the District Court of Hamilton County. Dismisssed for want of preparation.

84. Marvin Porter v. James H. Laws. Error to the District Court of Hamilton County. Dismissed for want of preparation.

86. Bevington & Hoiles v. Hugh Bleakly. Error to the District Court of Stark County. Dismissed for want of preparation.

88. Texas Building Association No. 2. v. Aurora Fire and Marine Insurance Company. Error to the District Court of Hamilton County. "Dismissed for want of preparation.

MOTION DOCKET. 68. William McGuire v. The State of Ohip: Motion for leave to file a petition in error to the District Court of Paulding County. Motion granted.

69. Patrick Kelly v. The State of Ohio. Motion for leave to file a petition in error to the District Court of Paulding County. Motion granted.

Ohio law Journal.



by the victim and had been led to believe the healing art had been applied by an Eclectic phys

ician, and each had denounced the job as an outCOLUMBUS, OHIO, MAY 4, 1882 rage and the work of a butcher. But when they


found it had been done by one of "nur own school" The Supreme Court was engaged most of last they came promptly to the rescue and cheerfully week, in hearing the cases of the State on rela- testified that dislocations of that kind were always tion of Chas. H. Moore, Supt. of Insurance treated as fractures, &c., ad nauseum. Of course against the Middletown Mutual Aid and the the jury found for the defendant. We presume Standard Life Association of America. A large his cheerful testimony in this case sprang from number of witnesses were examined, and the his gratitude for a similar favor on the former cases caused considerable interest. The court occasion. makes no report this week.

We hail this verdict in Haslet .v. Byles, as the

dawn of an era wherein a blundering, butchering MALPRACTICE.

saw bones must respond in damages for the wrongs

inflicted upon his victims by his ignorance and The Supreme Court of Pennsylvania has re

lack of skill. And wherein the villainous esprit cently wrestled with a case of malpractice where


corps that too often makes up the burden of so in the court below-Common Pleas of Mercer

called proof, allows the aforesaid butchers to go County-following a common custom in the Key- free when brought into court as defendants in stone State, warned the jurors that they must

malpractice cases. The fact of the business is, that not allow any sentiment of sympathy for the

no matter how a so-called surgeon bungles a job, plaintiff to penetrate their breasts, simply be

from taking out a wrong tooth, to cutting off the cause he was crippled for life, but must attend

wrong leg, any number of other so called surgeons strictly to what the doctors swore to. The jurors

may be found to swear that the course of treatgave the plaintiff only $1,000 for the wrong in

ment pursued was all that science and skill could Alicted by the surgeon and he appealed. The

suggest. For this reason these cases have very Supreme Court reversed and remanded the case.

rarely been won, and consequently are seldom It was re-tried in the lower court and a verdict commenced. We hope, however, that the future of $1,500 obtained by the plaintiff.

will make a different showing. If a lawyer were The plaintiff, Haslet, was injured in an acci- to bring an action of trespass quære clausem fregit, dent, suffering a fracture of the leg. He called

de bonis asportatis to recover damages for breach of in one Byles who doctered him after a fashion

contract, he would hardly find other lawyers to and allowed kind nature to heal the wound; but

swear that that was the proper form of action. had reduced the fracture so unskillfully as to

Yet that case would be no more criminally abshorten the broken limb about two inches

surd than the case we have above referred to which on the end of a man's leg is a long dis

where the brother saw bones swore that a pistol tance—and to turn the foot into a left oblique splint was the proper thing for a dislocation of a forward march position. The same old defense metacarpal bone. Let doctors beware. was made in the action that is always made in such cases.

As many members of the “Medical CONTRACT– LEASE, FAILURE OF SUBSociety” as was thought necessary were brought

JECT MATTER OF CONTRACT. in, to testify and did testify that the treatment

SUPREME COURT OF OHIO. had been scientific—such as had always been practiced and approved by “Our School of Sur

Scioto FIRE BRICK COMPANY. gery!" etc. etc. One of the witnesses in this case began his professional career with a pound of

ERASTUS Pond. blue mass and now is worth half a million. His practice was entirely among farmers, and when

April 18, 1882,

A., by an agreement in writing, "leased” to B., “all he was once called the farmer and the farm were

the clay that is good No. 1 fire clay, on his land'" depractically his meat. He was himself tried for scribed, for a term of three years, subject to the condi.

tions that B. “sball mine, or cause to be mined, or pay malpractice a few years ago, having treated a for, not less than 2,000 tons of clay every year, and shall dislocation as a fracture and crippled his victim

pay therefor, twenty-five cents per ton for every ton of

clay monthly, as it is taken away." Held: for life. Every doctor who testified on his be- 1. That this was a contract, which gave B. the excluhalf on that trial, had been previously consulted

sive right to mine and remove all the good No. 1 fire clay that was on the land, and not a lease of the land itself.


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2. It clay of that quality, and in quantity suficient No. 1 fire clay, and over six thousand tons of other to justify its being mined existed, B., on failure to mine at least 2,000 tons per year, each year while the contract

goud fire clay. The last clause being the amendwas in force, was bound to pay for that amount, at the ment made necessary by the ruling of the court agreed price per ton.

on a demurrer to the petition for want of such al3. But if, in fact, clay of that quality and in quantity

legation. suficient to justify its being mined could not, by the use of due diligence be found on the land, then

3. That defendant desiring to secure to itself there was no obligation to pay the amount agreed on, in the sole privilege of mining fire clay for a term case of failure to mine. Cook v. Andrews, 36 0. St. 178 followed and approved.

of years, on said land, entered into said contract. 4. Where it is an open question, whether such clay, 4. That defendant took possession of said land, was to be found on the land, and the exclusive posses- and mined and took away large quantities of sion of the clay lands was vested in the lessee or pur

fire clay, but not to exceed six thousand tons. chaser of the clay, for the purpose of ascertaining the fact, the burden is upon him, in order to defeat a recov. The prayer is for a judgment for $1,347.72, ery for the annual sums to be paid in case of a failure to with interest from February 25th, 1876, that mine and remove the same, to prove that such clay as

amount being the difference between $1,500, is contemplated in the contract did not exist in minable quantity. Cook v. Andrews, supra.

which was three years rent for said land in case Error to the District Court of Scioto County.

of failure to mine, and $152.28, payments re

ceived on the amount due on said contract. The defendant in error brought an action to Three defenses are pleaded. recover $2,000, less certain credits, under a con- 1. It is denied that there was any good numtract of which the following is a copy:

ber one fire clay on said land, or that defendant “This agreement, entered into this 25th day

received or took away any such, or any other February, A. D. 1873, between Erastus Pond, clay that it was required to take and pay for. of Portsmouth, Ohio, of the first :12rt, and the

2. It admits that shortly after the making of Scioto Fire Brick Company, of Sciocoville, Ohio

said agreement, the defendant entered upon said of the second part, witnesseth, that the said

tract of land of the plaintiff for the purpose of party of the first part hereby leases all the clay mining and taking away the good No. 1 fire clay that is good No. i fire clay, on his land, situate thereon, and proceeded to open the strata of fire in Clay Township, Scioto County, Ohio, for the clay on said premises, in order to mine and take term of three years, from and after this date, sub

away therefrom whatever good No. 1 fire clay ject to the following conditions, that is to say,

could be found, or was thereon. In opening said providing said parties of the second part shall

fire clay banks, it was ascertained that the fire mine, or cause to be mined, or pay for not less clay was not good No. 1 fire clay, but with the than two thousand tons of clay every year, and

expectation that the quality would improve as shall pay therefor twenty-five cents per ton for said banks were more fully opened and developed, every ton of clay monthly, as it is taken away. a small quantity of the fire clay mined on said The party of the first part reserves the right, in case he should sell or dispose of said property on

premises was taken away and hauled to the

works of defendant for the purpose of testing which the clay &bove leased is found, to cancel

the same. The whole quantity so taken away this lease any time after the first year shall have

from said premises was 4567 tons. It avers furexpired; but, in case the land is not sold, then, ther, thatupon testing said fire clay 80 taken and in that case, this lease is to remain in force

from said premises, it was ascertained that the for the three years. The party of the first part same was almost worthless; and for the purpose agrees, should he conclude to sell or dispose of

of making fire brick was, in fact, entirely worththe property, to allow the parties of the second

lese. Defendant avers that said fire clay so repart to purchase it, providing they will pay as ceived and taken away from said premises was much for it as any other gond and responsible not good No. 1 fire clay; nor was the same reparties. The party of the first party agrees to ceived or taken by defendants as such; nor was give the right of way for any roads necessary the said fire clay so taken of any value. to get clay away.”

3. Is a counter-claim to recover back the above To the true performance of the foregoing payments acknowledged in the petition, on agreements, we, the parties, alfix our signatures, the ground that the clay taken and paid for the day and date first above written.

was worthless. As no question is here made on SIGNED.) “ERASTUS POND."

the action of the court below, on this counter“SCIOTO FIRE BRICK COMPANY." claim a further statement of it is unnecessary. “Per W. Q. ADAMS, President."

On the issues joined, evidence was offered on

each side, the tendency of which is disclosed in The petition, as amended alleged:

the bill of exceptions. The jury found for the 1. The defendant is a corporation duly organ- plaintiff for the full amount claimed. ized unter the laws of this State, and carrying The bill of exceptions does not purport to set out on business at the said county.

all the evidence, but only what it tends to prove. 2. The plaintiff, on the 25th day of February, Certain charges, and refusals to charge are stated, A. D. 1873, was, and has since been the owner whịch are assigned as grounds for reversing the of a tract of land situate in Clay Township, in judgment. said County, containing about one hundred and Upon the issue made by the denial, that there seventy acres, and upon which were large de pos- was any good number one fire clay on the land, its of fire clay; viz: Over sit thousand tons of good | the court charged, that the burden of proof was

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on the defendant below; and, if the jury found pense exceeding the value of the clay so obtained, from the evidence that there was good number and would not, for that reason, have been mined one fire clay on the lands, in such quantities, by any man of ordinary care and prudence in as would warrant its being taken out having re- that business, the defendant was not required to gard to the expense ordinarily inourred in min- take such fire clay as a good No. 1 fire clay, nor ing fire clay, they need enquire no further, is he required to pay for the same, if he should the verdict must be for the plaintiff.

refuse to take it.' The court further instructed the jury: "That But the court refused to give the same withif they found, from the evidence, that there was out omitting the words, "nor is he required to no good No. 1 fire clay on the said lands of pay for the same if he should refuse to take it," plaintiff, it did not follow that they must find and gave said instruction omitting said words.; The issues for defendant; they must inquire fur- To which ruling of the court, in refusing to ther.” And to guide the jury in their further give said instruction as asked, and except by enquiries in such an event, at the request of the omitting said words, and also in giving the same attorney for plaintiff, the court gave to the jury with said words omitted, defendant, by its counthe following instructions, to wit:

sel, excepted. 1.“Under the written contract it was the duty The defendant asked the court to give the folof

the defendant to examine and deter-lowing instruction, to wit: mine, within a reasonable time, whether or not 3. "If, during the first year, the defendant there was such clay on the land as it was wil- made a reasonable examination of the land, and ling to accept and pay for under the agreement." was unable to find a good No. 1 fire clay on the 2. “If defendant did not, within one year from bame and so reported to plaintiff

, and the plainthe date of the contract, examine and test the tiff thereupon requested the defendant to make clay sufficiently to determine its quality and a further examinaton of the land the next year, quantity, and continued mining and taking and at his request defendant made a further ex away clay the second year, under the lease, then amination of the land the next year and could it became liable to pay to plaintiff at the end not, after a full and reasonable examination of of the year for two thousand tons of clay at the the same, find any good No. 1 fire clay on the contract price, whether it received that amount tract, and the jury shall also find, from the evior not.”

dence, that there was no good No. 1 fire clay upon 3. “If defendant, during the second year, the tract, the verdict must be for defendant." mined and took away clay under the lease, and Which' instruction the court refused to give, did not abandon the lease before the commence- and for 80 refusing, defendant by its counsel, ment of the third year, and so notify plaintiff, it excepted. is liable to pay for 2,000 tons for that year, wheth- The grounds relied on for a reversal are: that er it took away that quantity or not."

the court erred in its charge, and in its refusal 4. “A simpie verbal notice by the defendant, to charge as requested. or its attorney to the plaintiff

, that it should

Moore & Newman and J. W. Bannon for not take any more clay under the lease, is not plaintiff

, in error. sufficient; before defendant could release itself


W. A. Hutchins for defendant in error. from its liabilty under the written lease, it was required to tender to the plaintiff a written re- JOHNSON, J. lease in writing, executed by the defendant, un- The agreement, which is the foundation of the less there was a waiver upon the part of the action, is, we think, properly pleaded, as a com plaintiff of the execution of a written release." tract, securing to the plaintiff in error “the sole

" Exception was taken to these charges, and privilege of mining fire cluy” on the land for a then at the request of the defendant, the court term of three years. gave the following instructions, to wit:

The agreement itself, is not a lease of the land, 1. “Before the plaintiff can recover in this but of all the clay that is good No. 1 fire clay," case, the jury must be satisfied, by a preponder- on the land. ance of evidence, that there was upon the said If that kind of clay was on the land, the plaint lands of the plaintiff good No. 1 fire clayin quanti- iff in error was bound to mine not less than ties that could, and would, by the use of such 2,000 tons each year, the same to be paid for usual and ordinary means as are ordinarily monthly as it was taken away. The exclusive adopted by careful and prudent men in that right to possession of the land so far as was necbusiness, have been taken out."

essary to mine and remove such clay was granted. 2. The following instruction was asked by de- This was not an exclusive possession of the fendant to be given, to wit:

whole tract, but only for mining purposes. Tho "If the jury shall find, from the evidence, ownership of the land, with the right to the that there was to be found on the lands of the possession of the same, subject only to the right plaintiff some good No. 1 fire clay, but that the of possession for the purpose of mining and resame was found in such small quantities, or was moving the clay, was in the owner. This, was 80 mixed up with other fire clay unfit for use, or therefore a contract for the privilege of mining other ingredients that rendered it unfit for use and removing the kind of fire clay specified, as as a good No. 1 fire clay, that it could not be distinguished from a lease of the land! . taken out and made fit for use except at an ex- This right or privilege commenced February

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