12 Wall. 391-400, 20 L. Ed. 446, COOLEY v. O'CONNOR.

When authority is given to several, all must generally unite, but a board created to perform a public purpose may act by a majority of its members.

Approved in Carroll v. Alsup, 107 Tenn. 271, 272, 64 S. W. 196, 197, holding two of three members constituting State board of equalization present, action valid; People v. Lothrop, 3 Colo. 458, allowing majority at meeting of board of equalization to act, all being notified; Hall v. Vanderpool, 15 Fla. 129, two commissioners sufficient, under act of 1862; State v. McMillan, 52 S. C. 72, 29 S. E. 545, applying rule to commissioners to apportion debts between counties; Cowan v. Murch, 97 Tenn. 598, 34 L. R. A. 540, 37 S. W. 395, majority of appellate court may act in absence of statute; Ferris v. Kimble, 75 Tex. 479, 12 S. W. 690, majority of equalization board may act; First Nat. Bank v. Town of Mount Tabor, 52 Vt. 98, 36 Am. Rep. 739, applying rule to bond commissioners; dissenting opinion in Carolina etc. Bank v. Evans, 28 S. C. 528, 6 S. E. 324, majority holding majority of appraisers may lay off homestead.

Validity of assessment made by less than whole board of assessors.
Note, 16 Ann. Cas. 422.

Certificate of tax sale, under acts of Congress of June 7, 1862, and March 3, 1865, providing for taxation of lands in southern States, is valid, though signed by only two commissioners.

Approved in Hill v. Vanderpool, 15 Fla. 129, and Billings v. Stark, 15 Fla. 303, both following rule.

Certificate of sale for taxes, under act of Congress of 1862, is prima facie evidence of validity and regularity of sale.

Approved in Billings v. McDermott, 15 Fla. 63, and Hill v. Vanderpool, 15 Fla. 129, arguendo.

Freehold, or mere possessory right in defendant, may be evidenced under general issue, though often advisable to plead liberum tenementum. Approved in Rawson v. Finlay, 27 Mich. 271, applying under general issue in Michigan.

In this action defendant may set up title in United States and his tenancy, under general issue.

Approved in Lee v. Kaufman, 3 Hughes, 134, 138, Fed. Cas. 8191, and King v. La Grange, 61 Cal. 228, 230, both arguendo.

Act of Congress of 1862, respecting levy of direct taxes in insurrectionary States, contemplates a certificate of sale when United States becomes purchaser.

439

BARTH v. CLISE.

12 Wall. 400-403

Approved in De Treville v. Smalls, 98 U. S. 523, 25 L. Ed. 175, and United States v. Lee, 106 U. S. 204, 27 L. Ed. 176, 1 Sup. Ct. 246, such certificate to United States may be impeached; Collins v. Pettitt, 121 N. C. 730, 32 S. E. 977, county may purchase on tax sale; Lee v. Kaufman, 3 Hughes, 150, Fed. Cas. 8192, and King v. La Grange, 61 Cal. 228, 230, both arguendo.

Notice of sale for taxes must show what property is to be sold, and any description which does so is sufficient.

Approved in Buck v. Williams, 10 Heisk. 281, court will go behind. certificate to determine sufficiency of advertisement.

Miscellaneous. Cited in Columbia v. Cauca Co., 190 U. S. 528, 47 L. Ed. 1163, 23 Sup. Ct. 706, to point neither party to arbitration can defeat operation of submission after receiving benefits thereunder.

12 Wall. 400-403, 20 L. Ed. 393, BARTH v. CLISE.

Production of the body supersedes the original commitment and theroafter its custody is subject to control of court to which return is made.

Approved in Ex parte Thaw, 209 Fed. 75, where person was arrested under State process for extradition to another State, while hearing was delayed to await action of State, party petitioning for writ could be placed in care of suitable keepers; Hughes v. Moncur, 28 Cal. App. 467, 152 Pac. 971, applying rule in habeas corpus proceedings on behalf of minor children, directed to wife who was about to appeal from divorce decree giving custody to husband; State v. Broaddus, 245 Mo. 140, Ann. Cas. 1914A, 823, 149 S. W. 478, when writ of habeas corpus issues, officer holds his prisoner under that writ, the original cause of commitment being suspended; Wilkin's Petition, 71 N. H. 593, 53 Atl. 1020, sustaining court's power to strike out default of sureties upon bail bond at subsequent term upon surrender of body of principal; Ex parte Masse, 95 S. C. 320, 46 L. R. A. (N. S.) 781, 79 S. E. 99, where prisoner is held for extradition, ordinarily bail should not be allowed pending hearing; United States v. Doss, 25 Fed. Cas. 893, State judge conspiring to release a prisoner committed by United States commission is guilty of obstructing Federal process; In re Ebanks, 84 Fed. 314, State court order directing death penalty, pending appeal from District Court denying habeas corpus, is invalid; Matson v. Swanson, 131 Ill. 265, 23 N. E. 596, habeas corpus supersedes capias ad satisfaciendum and bail may be allowed, though forbidden for civil arrest.

Authority of habeas corpus as paramount to that of all other writs. Note, Ann. Cas. 1914A, 830.

Where a case is inherently and incurably defective, though not noticed in court below or brought to this court's attention by counsel, it is decisive.

Approved in Nilsson v. Martinson, 72 Wash. 289, 130 Pac. 107, general abstract instruction that jury should follow their own consciences and do whatever they believed to be right was improper; Meguire v. Corwine, 101 U. S. 112, 25 L. Ed. 901, contract being void; Whitney v. Wyman, 101 U. S. 397, 25 L. Ed. 1052, applying rule to suit against agent of disclosed principal; West v. Camden, 135 U. S. 521, 34 L. Ed. 258, 10 Sup. Ct. 841, an agreement by director to keep one in permanently as officer; United States v. Barnes, 6 Ben. 185, Fed. Cas. 14,523, goods forfeited by use of false entry in custom-house; Butler v. Pittsburgh etc. Ry. Co., 18 Ind. App. 663, 46 N. E. 94, suit against carrier for negligence, without alleging ownership of freight; Lockhart v. Wills, 9 N. M. 344, 54 Pac. 342, ejectment on void mining location; Mehurin v. Stone, 37 Ohio St. 54, when, on conceded facts, verdict should be for respondents, errors in instruction disregarded; dissenting opinion in Cahill v. Chicago etc. Ry. Co., 74 Fed. 295, 20 C. C. A. 184, majority sending back for new trial, though it clearly appeared plaintiff was guilty of contributory negligence.

Miscellaneous. Cited in Simmons v. Georgia Iron etc. Co., 117 Ga. 310, 43 S. E. 782, to point proceeding for writ of habeas corpus not strictly speaking a civil or criminal action.

12 Wall. 404-407, 20 L. Ed. 444, PHOENIX INSURANCE CO. v. SLAUGHTER.

Policy wherein "saltpetre, etc. are not to be kept on premises, or burning fluid, etc., not exceeding one barrel," there being no semicolon in entire clause, the saltpetre, etc., are not entirely forbidden, but only as they exceed one barrel.

Approved in St. Paul Fire etc. Ins. Co. v. Penman, 151 Fed. 969, 8.1 C. C. A. 151, in action on insurance policy on building occupied by miners, expression "other explosives" was construed to include blasting powder; Atlantic Ins. Co. v. Manning, 3 Colo. 226, applying same rule in stipulation against vacancy or increase of risk qualified by a subsequent clause.

What constitutes "keeping," "storing," "using," etc., of prohibited articles within fire insurance policy. Note, 13 Ann. Cas. 540,

543.

Provisions in fire insurance policies prohibiting designated articles on premises. Note, 3 B. R. C. 52.

Risks not taken on articles in ordinary use should be declared in unambiguous terms and in large type.

Approved in Kelley v. Home Ins. Co., 14 Fed. Cas. 243, a provision against vacancy means abandonment, and not mere temporary vacancy; Reaper etc. Ins. Co. v. Jones, 62 Ill. 460, articles known to be kept are not excluded unless notice is given, where prohibition is in small type; Boatman's etc. Ins. Co. v. Parker, 23 Ohio St. 96, 13 Am. Rep. 232, obscure clause relating to explosion exemptions, strictly construed; Waterbury v. Dakota etc. Ins. Co., 6 Dak. 472, 43 N. W. 698, to point that policy is construed in favor of assured; Burkhard Travelers' Ins. Co., 102 Pa. St. 266, 48 Am. Rep. 206, and Westchester Ins. Co. v. Earle, 33 Mich. 151, both arguendo.

V.

Distinguished in Levi v. Mutual Ins. Co., 2 Woods, 69, Fed. Cas. 8290, where an unusual stipulation was printed in large, leaded type; Galveston v. Long, 51 Tex. 92, holding policy voided by vacancy; Fuller v. Madison etc. Ins. Co., 36 Wis. 604, condition avoiding policy in case of additional encumbrances is reasonable.

Proximate and remote cause. Note, 36 Am. St. Rep. 818.

Miscellaneous. Cited in Sawyer v. Dodge etc. Ins. Co., 37 Wis. 538.

12 Wall. 408-418, 20 L. Ed. 419, THORP v. HAMMOND.

Vessel, whose hands are reefing mainsail, is not relieved from keeping lookout or observing precautions to avoid a vessel ahead.

Approved in The Northland, 125 Fed. 60, holding fact that crew engaged in handling ship did not excuse failure to maintain lookout; The Ancon, 6 Sawy. 123, Fed. Cas. 348, holding steamer liable for not having lookout.

Custom of no lookout, when close to other vessels beating to windward, and expected soon to cross her bow, is not reasonable.

Approved in The J. W. Everman, 2 Hughes, 22, Fed. Cas. 7591, ship entering Hampton Roads, with only lookout in pilot-house, is at fault; Blanchard v. New Jersey Steamboat Co., 59 N. Y. 296, absence of lookout on libelant is fatal to his claim.

One owner, who is in full charge, is owner pro hac vice, and is liable for tortious act of vessel. Quaere as to whether general owners are liable under such circumstances.

Approved in The Barnstable, 181 U. S. 468, 45 L. Ed. 957, 21 Sup. Ct. 686, holding primary liability for collision rests upon charterer navigating vessel with own crew; Workman v. Mayor etc. of New York, 179 U. S. 565, 573, 45 L. Ed. 322, 325, 21 Sup. Ct. 217, holding city liable for negligent handling of fireboat under rule respondeat superior; The Paraiso, 226 Fed. 968, where owner and charterer filed petition for limitation of liability, charterer, who was owner pro hac vice, was not

required to join in stipulation for more than value of his own interest; Monongahela River Consol. Coal etc. Co. v. Hurst, 200 Fed. 713, 119 C. C. A. 127, owner and charterer are liable without limit for their own negligence, and liable to extent of their interest for negligence of master and crew; The Livingstone, 104 Fed. 924, allowing charterer to recover one-half loss sustained by him as cargo owner; In re Lakeland Transp. Co., 103 Fed. 336, holding charterer, owner pro hac vice, liable for loss of freight resulting from collision; Nelson v. Western Steam Navigation Co., 52 Wash. 186, 187, 100 Pac. 328, 329, under circumstances of case, there was such a surrender of control by owner to charterer as to relieve owner from liability for injuries to seaman by negligence of mate; Scull v. Raymond, 18 Fed. 550, 551, owners not in charge not liable for collision; The L. L. Lamb, 31 Fed. 32, seaman's lien is not waived by knowledge of hiring to charterer; The Pirate, 32 Fed. 487, charterer, under facts, was owner pro hac vice, and no materialman's lien allowed on vessel for supplies at his request; Webster v. Disharoon, 64 Fed. 144, holding general owner not liable in personam; Spedden v. Koenig, 78 Fed. 507, 24 C. C. A. 189, managing owner cannot bind others personally for supplies; Somes v. White, 65 Me. 545, 20 Am. Rep. 720, general owner not liable for collision; Scarff v. Metcalf, 107 N. Y. 217, 1 Am. St. Rep. 810, 13 N. E. 797, general owner is liable for neglect of mate performing owner's duty, unless there is an actual demise of vessel, and he is so liable where master merely sails on shares; Williams v. Hays, 143 N. Y. 444, 42 Am. St. Rep. 743, 26 L. R. A. 155, 38 N. E. 449, owner pro hac vice, on facts herein, is liable to other owners for negligent loss.

Duties of ship owners to seamen in their employ. Note, 1 Am. St.
Rep. 814.

Liability of vessels and their owners for injuries caused by colli-
sion. Note, 45 Am. Dec. 59.

Demise of vessel by charter-party. Note, 5 Ann. Cas. 624.

Which of two or more is master of person conceded to be servant of one. Note, 37 L. R. A. 58.

Requisites of charter-party. Note, 5 E. R. C. 631.

Libel for collision, not setting out whether owners are general or special, is sufficient to charge an owner pro hac vice, though it be dismissed as to general owners.

Approved in The Major Reybold, 111 Fed. 416, holding municipality liable for damage due to negligent handling of servants in charge of fireboat.

Miscellaneous. Cited in Tucker v. Alexandroff, 183 U. S. 438, 46 L. Ed. 270, 22 Sup. Ct. 201, to effect that ship subject to admiralty jurisdiction as soon as launched.