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fire commissioners appointed in his place Peter with him for nearly six months she left hini, Seery inspector of combustibles, at the same sal. alleging cruelty and neglect, and having a priary, and he inmediately entered upon the dis- vate income of £130 a year, offered him £50 & 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 plaintiff 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 cluimed. The defendant then appealed to apart from you since 1870?”. But 88 the plaintthe general term of the court, and it reversed the iff 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 ur nown 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 u on 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,

(New cases filed since last report, up to April 25, 1882.] while he is holding the office and discharging

1123. Squire & Homer v. C. & F. Nachtrieb. Error to its duties, is 'a defence to an action brought by the 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 Cayahoga

County. R. J. Winters and C. E. Pennowell 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. 8. R. Harris the city did not dismiss him from his office.

for plaintiff. The fire commissioners were public officers and

1126. 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 & Morri. Mayor, 62 N. Y. 160; Tone v. The Mayor, 70 Ib. son for defondant. 157; Ham 0. 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. Roy.

polds 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

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 Ashtatained, it must be by an action against the fire

bula County. Error-Reserved in the District Court of

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. an action against Seery to recover the salary

ants. which, as between him and the plaintiff, he

1130. Pittsburgh, Cincinnati & St. Lonis

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

Warron 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 Auglaize 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 Lite Association. Quo warranto.

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

April 28th-No. 1047. Ohio ex rol. v. The Standard Life ried a tutor of 31, Henry Wills. After living Association of America. Quo warranto.


back the pro rata proportion of the unearned premium in cash, nor to credit the same on the note. The note

was thereafter subject to such credit.

Judgment affirmed.
959. Cleveland, Columbus, Cincinnati & Indianapolis

Railway Company et al. v. Hugh J. Jowett et al. Error
Hon. John W. OKEY, Chief Justice; Hon. to the Court of Common Pleas of Franklin County.
Geo. W. McILVAINE, Hon. NICHOLAS LONGWORTH, 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 Tuesday, April 25, 1882.

lawfully made without notice, unless the delay required GENERAL DOCKET.

to give such notice will result in irreparable loss.

3. In an action to prevent the consolidation of railroad No. 75. Lloyd 'v. Moore. Error to the District Court companies, the election of directory for the new comof Scioto County.

pany, at a meeting of the stockholders held under sec,

3383 of the Revised Statutes, will not justity, such an LONGWORTH, J., Held:

appointment against either of the coin panies, on the Where the judge, at defendant's reque

gave to the

ground that part of the stockholders participating in the jury a certain special charge, in addition to his general

meeting have been inhibited from doing so by injunccharge, which said special charge was erroneous, and tion, afterwards having been requested by the jury to repeat

Whether any of the stockholders were subjuct to the his charge to them, repeated the general charge, jurisdiction of the court allowing the injunction, is 8 but declined to repeat the special charge, there was no

question not now before this court. error in refusing to repeat the erroneous instruction.

The order appointing the receiver and the orders enJudgment afirmed.

tered in aid of such appointment are reversed and set 1076. The State of Ohio ex rel. Attorney General v. aside. Henry Heinmiller. In Quo Warranto.

46. Andrew Warner, administrator of Lucius Bartlett, MCILVAINE, J.. Held:

v. Brighton Tanner, in person and as administrator of 1. Under section 1749 of Revised Statutes, the mayor of

Chester Tanner. Error to the District Court of Geauga a city has power to suspend officers appointed by him County. under an ordinance, for neglect of duty, misconduct in ORXY, C. J. office or other sufficient cause “and may appoint other

T. & B. executed an instrument under seal, signed by persons to fill the temporary vacancy occasioned thereby;

two witnesses, and acknowledged by T. before a justice and all such suspensions, and the cause thereof, and all of the peace, in which instrument it is covenanted that such appointments, sball be by him reported to the coun

T. leases to B. two acres of land (described in the instru. cil for their action at the next regular meeting there

ment), with the use of water in adjoining lands of T. and after." Held: 1st. That the council may, in its discre- privilege of conducting it in pipes “to & cheese

house to be erected on tion, approve or disapprove such suspension. 2d. That

said premises, T. reserv. the action of the council may be bad upon such informa

ing enough water to accommodate the stock kept on the tion as may come to its knowledge. 3d. The disapproval

farms of T. And B. is to build a cheese house on the of such suspension by the council terminates the vacancy premises, and agrees to pay T. for the use of the premi. occasioned thereby. 4th. Upon the termination of such ses and the privileges aforesaid, thirty dollars per annum vacancy, the person appointed to fill it, ceases to be an on the first day of October, in each year, while the premofficer of the city.

ises shall be used as and for the manufacture of cheese ; 2. A petition in quo warranto prosecuted on behalf of and when the premises sl all no longer be used for such the State by the Attorney General to oust an incurnbent purpose, the premises, together with the privileges aforeof an office, need not set forth the name of the person

said, shall revert to T., said B. having the privilege of reclaiming to be entitled thereto as is required by section

moving all buildings and fixtures put upon said premi6766 of the Revised, Statutes in cases prosecuted by a

seg by him." person claiming to be entitled to the office.

Held, that this was a lease to B. for life, provided he Judgment of ouster.

continued to use the premises for the manufacture of

cheese thereon and paid rents, with the right at any time 33. Otis B. Little v. The Eureka Fire & Marine Ins.

to remove the buildings and fixtures placed on the premCo. Error to the Superior Court of Cincinnati.

ises by such lessee. JOHNSON, J. Held:

Judgment affirmed. A policy of insurance, having one year to run, was de- 79. Leroy Orr v. Henry Kelton et al. Error to the livered to the insured, without payment of the premium District Court of Licking County. Judgment of the disagreed on. In a few days, the note of the insured at trict court reversed and that of the common pleas af. eixty days was accepted for the premium, which was not firmed. There will be no further report. paid at maturity, and remained in the hands of the in

83. S. J. Hubbard v, T. Z. Riley, assignee &c. Error surer. After this, and within a reasonable time before

to the District Court of Hamilton County. Dismisssed the loss, tbe insurer cancelled the policy, and notified the

for want of preparation. parties interested therein of such cancellation, and credîted on the note, a sum less than the pro rata proportion

84. Marvin Porter v. James H. Laws. Error to the Disof the unearned prer ium.

trict Court of Hamilton County. Dismissed for want of The conditions of the policy provided, that it was not preparation. to be binding until actual payment of the premium, and 86. Bevington & Hoiles v. Hugh Bleakly. Error to that the insurance should be terminated at the request the District Court of Stark County. Dismissed for want of the insured, in which case the company was to retain of preparation. only the customary short rates for the tiine the policy 88. Texas Building Association No. 2. v. Aurora Fire was in force, also that the company might, at its option, and Marine Insurance Company. Error the District terminate the insurance upon giving notice to that effect, Court of Hamilton County. Dismissed for want of prepe and tendering a pro rata proportion of the premium for aration. 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 com

MOTION DOCKET. . pany waived the condition that the policy was not binding unless the premium was actually paid. 2d. On fail

68. William McGuire v. The State of Ohip: Motion for ure of the assured to pay the note, the company, night,

leave to file a petition in error to the District Court of on giving reasonable notice thereof, before the loss, ex

Paulding County. Motion granted. ercise its option to cancel the policy. 3d. As the note 69. Patrick Kelly v. The State of Ohio. Motion for was past due and in the hands of the company at the leave to file a petition in error to the District Court of time of such cancellation, it was not necessary to tender Paulding County. Motion granted.

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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 “pur own schoolThe 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 flicted 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 sawbones 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

April 18, 1882, practice was entirely among farmers, and when he was once called the farmer and the farm were

A., by an agreement in writing, "leased” to B., “all

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." shall 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 shali 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 exclu

sive right to mine and remove all the good No. 1 fire clay half on that trial, had been previously consulted

that was on the land, and not a lease of the land itself.


% 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

good 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. auficient to justily 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 O. 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: "This agreement, entered into this 25th day received or took away any such, or any other

ber one fire clay on said land, or that defendant February, A. D. 1873, between Erastus Pond,

clay that it was required to take and pay for. of Portsmouth, Ohio, of the first art, 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 shali

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 premises was taken away and hauled to the case he should sell or dispose of said property on works of defendant for the purpose of testing which the clay above 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, that upon testing said fire clay so 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

less. Defendant avers that said fire clay so re part 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, affix 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 under 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. Buid 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 six thousand tons of good | the court charged, that the burden of proof was 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 ao good No. 1 fire clay on the said lands of pay for the same if he should refuse to take it,” plaintifi, 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 same 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 exaway 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 grounde 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 simple verbal notice by the defendant, to charge as requested. or its attorney to the plaintif, that it should

Moore & Newman and J. W. Bannon for not take any more clay under the lease, is not sufficient; before defendant could release itself

plaintiff, in error. from its liabilty under the written lease, it was

W. A. Hutching for defendant in error. 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 con 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 clay” 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 clay in 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. The "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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