thoroughly consider,-whether, notwithstanding the catching of the log by the helm, the collision ttdgbt not hate beell avoided if the preceding management of the Trudeau had been such as proper skill in navigation required. The weight of evidence shows that. opposite and above the point of the landing which the Trudeau was endeavoring to make, there was a large and powerful eddy,well known to the navigators of the Mississippi river; that the usual and prudent course of descending boats desiring to make a landing this point was to keep outside Of the eddy, i. e., furtbertowards the AIgjers side than the eddy, and fall a little below the point of. landinj?;, ,and then turn and proceed to the)andirg through the eddy 'a little upstream. There is conflict of testimony, but I think the preponderance and the reason, of the thing tend to establish this mode of proceeding as being the proper and safe mode. This was not the"mode resorted to by the Trudeau. She kept in the eddy, and attempted to 'turn towards tnepoint oflanding while within the eddy, and at a' point 110t below but opposite'to it. Had she ltept, (l)utside of the eddy, and kept on t9 a voint below Canal street, so that her turning and her motion towards 'her landing would have been would have been a little upstream, though her helm became incapable of governing, the, motion of the vessel, the wheel might nevertheless have been: made,shn ply by its reVolutions, to have prevented the Trudeall from 'running intoth,e\lhsie. 'No question was made at the argument but that, and I think irinettled, as a rule of law,that, incases of collision it is the effici'etit, controlling management of the vessel·charged. with fault which must be looked at,arid that,though her management at the very moment ofol' filr a few moments preceding the collision was faultless. neverthelesslf her anterior and controlling management contributed to was injUdiCious, and lacking in skill or in the observthe disaster, ,lince of the kn'Own methods of navigation, either local or general, she is 'deemed to be.in fault. ' I think this principle of law upon the evidence leaves a cRseeaiablished agaipst the Trudeau. Judgment will therefore be entered.in favor of theUbelant, and against the claimants. C',: .
FREEMAN V. CLAY.
(O£rcuu Court oj .dvpeals, Fifth Circuit. November 27, 1891.)
The' citation on appeal must be signed by the jUdge or justice, and, under rule 14. p/Ior.,lS, must be made returnable not exceeding 30 days from the day of signing, the return-day fall in vacation or in term.time; but a defect in Buch par· ticulahlis cured by the filing of the transcript and an entry of a regular appear. ance by appellees' counsel. . The app,eal-bond must be approved by the Judge or Justice. An approval by the , clerk alone is not'sufficient, and is ground of dismissal.
ro CmOUIT COURT Oll' ApPEALS-CITATION-DEll'EOT CURE» BY ApPEARANOB.
Appeal from' the United States Circuit Court for the Northern Districtofldlsi3issippi. Motion,to dismiss the appeal. Granted condition;' ally. ,:' , ' Edward Mayes and Frank Johnston, for. appellant. W.' L. Nugent; for appellees. ",. Before: PARDEE, Oircuit Judge, and LoCKE and BRUCE, District Judges; '. .
. PARDEE, J. In this case the appellees have moved to dismiss the ap;' peal 'in' this court for the following reasons: "(1) *h.ebond'is notappfoved by the trial jUdge. nor are the names of the sureties inserted in it. (2) The citation is not signed by the t11al judge. but by the Clerk.. lihd was signed September 12th. executed September 14th, and madeteturnaible on the thiJ:dMonday in November. contrary to paragraph 5. rule 14." An inspection of the record shows that on the 30th day of June, 1891, the court below, on motion of complainants, granted an appeal to the next term of the United States circuit court of appeals for the fifth opera:te as a .s;u,peraedeas upon t!leb: illto :boIld in the penalty of $5,334.50, with two or more good and sufficient securities, conditioned according to law. 'That thereafter, on the 8th of September, 1891,: an.appeal.bond was filed, in which the names of the sureties are not inserted, and. upon which was the following indorsement: "I above bond. September 8th, 1891. G. R. HILL, Clerk," -but no approval by any judge. That upon the 12th day of September, 1891, G. R. Hill, clerk, issued a citation, directing the appellees to be and appear before the United States circuit court of appeals for the fifth· circuit at the next term thereof, to be held in the court-room of said court' at New Orleans, in said fifth circuit, on the third Monday of November, 1891. From this showing it appears that the motion to dismiss the appeal in this cause is well founded as far as the facts are .concerlled; for, in taking and perfecting the said appeal, neither the law (Rev. St. § 1000) nor the rUles of this court have been complied with. The citation should have been issued and signed by the judge of the court below, directing the appellees to appear within 30 days; and the judge signing the citation should have required and accepted a sufficient bond to perfect the appeal, instead of which it appears that the judge v.48F.no.1l-54.