Hall v. Lanning, 91 U.S. 160

Lybrand then offered to prove that he never was a resident or citizen of the State of New York; and that he had not been within said State of New York at any time since, nor for a long time before, the commencement of the suit in which the judgment was rendered, upon which the plaintiff in this case brought suit; and that he never had any summons, process, notice, citation, or notice of any kind, either actual or constructive, ever given or served upon him; and that he never authorized any attorney or any other person to appear for him; and that no one ever had any authority to appear for im in said suit in the State of New York, or to enter his appearance therein, nor did he ever authorize any one to employ an attorney to appear for him in the action in which said judgmen was entered; and that he never entered his appearance therein in p. 161person; and that he knew nothing of the pendency of said suit in the said State of New York until the commencement of the present suit in this court; that he was a partner in business with his co-defendant Hall at the time the transaction occurred upon which the plaintiffs brought suit in New York, though said partnership had been dissolved, and due notice thereof published, some six months prior to the commencement of said suit in New York.

As the evidence offered by Lybrand that the attorney w o appeared for him did so without authority does not contradic, but simply explains, the record, he was not estopped. * tony. KW«, 6 How. 186; Gleason y. DMA Met. 888! Barm y. Bitch, Johns. 121; White v. Jones, 88 Ill. 163; Wee • Sykes, 8 Ill. 200; Hall y. Williams, 6 Pick. 282; Stillman, 6 Wend. 447; Aldrich y. Kmney,4 Conn. 88 0, cases cited therein; Haskin v. Blaekmer, 20 Iowa, 16, p. 163cases cited therein; Kerr v. Kerr, 41 N. Y. 272; Wilson v. Bank of Mt. Pleasant, 6 Leigh, 570; Price v. Ward, 1 Dutch. 229; Bigelow on Estoppel, 226; 6 Robinson’s Practice, 438; 2 American Leading Cases (5th ed.), 633, 642, and cases cited; Freeman on Judgments, sect.. 563 (2d ed. p. 559).

mson v. Stickney, 7 T. R. 208, Dampier, arguendo; Colyer on Partn., sects. 441, 678, and note; Winship v. The Bank p. 164of the United States, 5 Pet. 561; Bennett v. Stickney, 17 Vt. 531; Everson v. Gehrman, 10 How. Pr. 301; Taylor v. Coryell, 12 S. & R. 250.

Mr. Justice Bradley delivered the opinion of the ^our^ The question to be decided in this case is, whether, a er p. 165dissolution of a copartnership, one of the partners in a suit brought against the firm has authority to enter an appearance for the other partners who do not reside in the State where the suit is brought, and have not been served with process; and, if not, whether a judgment against all the partners, founded on such an appearance, can be questioned by those not served with process in a suit brought thereon in another State. We recently had occasion, in the case of Thompson v. Whitman, 18 Wall. 457, to restate the rule, that the jurisdiction of a foreign court over the person or the subject-matter embraced in the judgment or decree of such court is always open to inquiry; and that, in this respect, the court of another State is to be regarded as a foreign court. We further held in that case, that the record of such a judgment does not estop the parties’from demanding such an inquiry. The cases bearing upon the subject having been examined and distinguished on that occasion, it is not necessary to examine them again, except as they may throw light on the special question involved in this cause. In the subsequent case of Knowles v. The Gas-Light Company, 19 Wall. 58, we further held, in direct line with the decision in Thompson v. Whitman, that the record of a judgment showing service of process on the defendant could be contradicted and disproved.

It is sought to distinguish the present case from those referred to, on the ground that the relation of partnership confers upon each partner authority, even after dissolution, to appear for his copartners in a suit brought against the firm, though they are not served with process, and have no notice of the suit. In support of this proposition, so far as relates to any such authority after dissolution of the partnership, we are not referred to any authority directly in point; but reliance is placed on the powers of partners in general, and on that class of cases which a rm the right of each partner, after a dissolution of the firm, o settle up its business. But, in our view, appearance to a suit is a very different thing from those ordinary acts which appertain to a general settlement of business, such as receipt an payment of money, giving acquittances, and the like. If a suit e brought against all the partners, and only one of them served with process, he may undoubtedly, in his own p. 166defence, show, if he can, that the firm is not liable, and to this end defend the suit. But to hold that the other partners, or persons charged as such, who have not been served with process, will be bound by the judgment in such a case, which shall conclude them as well on the question whether they were partners or not when the debt was incurred as on that of the validity of the debt, would, as it seems to us, be carrying the power of a partner, after a dissolution of the partnership, to an unnecessary and unreasonable extent.

It must be conceded, however, that the general authority o one partner to appear to an action on behalf of his °opa during the continuance of the firm, has been asserte y text-writers. Gow on Partn. 168, Collyer on Partn. sect. 441, Parsons on Partn. 174, note. But the assertion is based p. 167somewhat slender authority. We find it first laid down in Gow, who refers to a dictum of Serjeant Dampier, made in the course of argument (7 T. R. 207), and to the case of Morley v. Strombong, 3 Bos. & Pull. 254, where the court refused to discharge partnership goods taken on a distringas to compel the appearance of an absent partner, unless the partner who was served would enter an appearance for him. As to this case, it may be said that it is not improbable that the home partner had express authority to appear in suits for his copartner; for, in a subsequent case (^Goldsmith v. Levy, 4 Taunt. 299), a distringas, issued under the same circumstances, was discharged where the home partner made affidavit that the goods were his own, and that he had no authority to appear for his copartner. These seem to be the only authorities relied on.

The validity of a judgment rendered under this New York law, when prosecuted in another State against one of the defendants who resided in the latter State, and was not serve with process, though charged as a copartner of a defendant residing in New York, who was served, was brought in question in this court in December Term, 1850, in the case of D Ketchum, 11 How. 165. It was there contended, that by the Constitution of the United States, and the act o ongr p. 169passed May 26, 1790, in relation to the proof and effect of judgments in other States, the judgment in question ought to have the same force and effect in every other State which it had in New York. But this court decided that the act of Congress was intended to prescribe only the effect of judgments where the court by which they were rendered had jurisdiction; and that, by international law, a judgment rendered in one State, assuming to bind the person of a citizen of another, was void within the foreign State, if the defendant had not been served with process, or voluntarily made defence, because neither the legislative jurisdiction nor that of the courts of justice had binding force.

Few cases can be found in which the precise question has been raised. The attempt to exercise such a power does not appear to have been often made. Had it been, the question would certainly have found its way in the reports; for a number of cases have come up in which the power of a partner o appear for his copartners during the continuance of t e pa nership has been discussed. The point was raised m eps • Brewer, 9 Cush. 390; but the court, being of opinion that p. 171power does not exist even pending the partnership, did not find it necessary to consider the effect of a dissolution upon it.

bis suit was brought by Jones, assignee of Winslow, against p. 172Clark, and revived after his death, against Sewall, his administrator. Jones alleged that Clark had infringed certain patents for an improvement in preserving Indian corn, granted to Winslow; and he prayed for an injunction and an account. A decree was rendered for the complainant. The defendant appealed.

“ Given under my hand, at the city of Washington, this eighth day of April, in the year of our Lord one thousand eight un re p. 173and sixty-two, and of the independence of the United States of America the eighty-sixth.

fact' ’ 6 seale<I cans are bulged outgas though putrethe n an escape of the resulting gases had commenced within cans. onsequently, strong cans are required; and dealers are p. 174likely to be prejudiced against corn thus put up. I recommend the following method: Select a superior quality of sweet corn in the green state, and remove the kernels from the cob by means of a curved and gauged knife, or other suitable means. Then pack these kernels in cans, and hermetically seal the latter so as to prevent evaporation under heat or the escape of the aroma of the corn. Now expose these cans of corn to steam or boiling heat for about one hour and a half; then puncture the cans, and immediately seal the same while hot, and continue the heat for about two hours and a half longer. Afterwards the cans may be slowly cooled in a room at the temperature of seventy to one hundred degrees Fahrenheit. Indian corn thus packed and treated may be warranted to keep in any climate. Being preserved in its natural state as near as possible, it retains the peculiar sweetness and flavor of fresh corn right from the growing field. It is only necessary to heat this preserved corn, and season the same, in order to prepare it for the table, as it is fully cooked in process of preserving. Other methods of treatment may be adopted without departing from my invention, so long as the hermetical sealing and use of the heat are so managed as to secure the aroma and fresh flavor, and prevent putrefaction $ thus producing the new article of manufacture substantially described.

« Whereas Isaac Winslow, of Philadelphia, Penn., has alleged that he has invented a new and useful improvement in pi eserving green corn (he having assigned his right, title, and interest in said improvement to John W. Jones of Portland, Me.), whic he states has not been known or used before his application, has made affirmation that he is a citizen of the United States; that does verily believe that he is the original and first inventoi or discoverer of the said improvement, and that the same hath no, to the best of his knowledge and belief, been previously known or p. 175used; has paid into the treasury of the United States the sum of thirty-five dollars, and presented a petition to the Commissioner of Patents, signifying a desire of obtaining an exclusive property in the said improvement, and praying that a patent may be granted for that purpose: —

It has long been common to boil green or unripened Indian ^rn’ °r ma^ze’ an<^ then dry the same for winter use. But corn us dried, when prepared for the table by again boiling, is more ess hard and insipid, having lost the fine flavor of fresh green corn. ® th ^ars corn boiled, and then hermetically sealed in cans, co seems to absorb the sweetness of the kernels; or if the th T S remove^ ^rom the cob after boiling, and then preserved, nest flavor of the natural corn is lost. After many and varied p. 176attempts to preserve green corn without drying the same, finding that I did not obtain a satisfactory result, I finally conceived the idea of first removing the corn from the cob, and then boiling or cooking the kernels thus separated, and preserving them. But this was met by a new difficulty. The kernels of corn being somewhat broken by removal from the cob, the milk and other juices were dissolved out in the process of boiling; and thus the corn was left insipid and unpalatable. I then attempted to cook‘the corn without contact with water, by exposing the cans containing the corn to boiling water.

“ This puncturing has two advantages: it prevents the possi e bursting of the cans; and allows the heads of the cans to press inward when cool, so that dealers can see by this test that the corn is perfectly preserved. When the cans are not puncture, t ends will remain pressed outward after cooling, and yet t e corn is perfectly preserved. The above-described process of removi & the corn from the cob, and then preserving the kernels, a or 8 s eral advantages over any method of preserving corn ereto known. Among these advantages are the following • st, culiar sweetness and excellent flavor of the corn thus' Pre® J these qualities being consequent upon retaining al t e mi other juices, together with its fine natural aroma; 2d, e trana. of space in boiling and packing, and convenience of^handling, - portation, and sale. Having thus fully described my imp p. 177process, what I claim, and desire to secure by letters-patent of the United States, is the above-described process of first removing the corn from the cob, and then preserving the kernels substantially in the manner and for the purposes set forth.

« And be it remembered, that on the thirtieth day of A o p. 179the year of our Lord one thousand eight hundred and ten, the aforesaid Peter Durand came before our said lord the king in his chancery, and acknowledged the specification aforesaid, and all and everything therein contained and specified in form above written; and also the specification aforesaid was stamped according to the tenor of the statute made for that purpose. Enrolled the thirtieth day of August, in the year of our Lord one thousand eight hundred and ten.”

The first objection made to the patents is the want of novelty, t is contended that they were anticipated by the Appert process embodied in the Durand patent of 1810; also by the patent °f Gunter of 1841, and by that of Wertheimer of 1842. It is p. 180an elementary proposition in patent law, that, to entitle a plaintiff to recover for the violation of a patent, he must be the original inventor, not only in relation to the United States, but to other parts of the world. Even if the plaintiff did not know that the discovery had been made before, still he cannot recover if it has been in use or described in public prints, and if he be not in truth the original inventor. Dawson v. Bollen, 2 Wash. C. C. 311; Bedford n. Hunt, 1 Mas. 302.

The specification then declares that the inventor did avail himself of the application of heat by placing the vessel in an oven, stove, steam-bath, or other fit situation for gradually and uniformly raising the temperature and suffering it to cool again, and that as the choice of the consumer or nature of the said oo or other articles may render preferable, leave the aperture o e vessel, or a small portion thereof, open until the effect o e p. 181heat shall have taken place, at which period the same is to be closed.

corn in the natural state; remove the kernels from the p. 182cob by means of a curved and gauged knife, or other suitable means; then pack in cans, hermetically seal the cans, expose them to steam or boiling heat for about an hour and a half; then puncture, seal while hot, and continue the heat for about two hours and a half.” At the close, the inventor says that what he claims to secure by the patent is the new article of manufacture; namely, Indian corn preserved in the green state without drying, the kernels being removed from the cob, hermetically sealed, and heated as described.

o infringe a patent, it is not necessary that the thing paten e should be adopted in every particular. If the patent is opted substantially by the defendants, they are guilty of p. 184infringement. Root n. Ball, 4 McLean, 177; Alden v. Deney, 1 Story C. C. 336.

e principle is this: The omission to mention in the specica ion something which contributes only to the degree of t, providing the apparatus would work beneficially and e worth adopting without it, is not fatal, while the omission p. 186of what is known to be necessary to the enjoyment of the invention is fatal. Cttrtis, sect. 248.

Now, it is quite significant of the intent of the claimant, an of the meaning of the first patent, that his second patent, whic is for the process, and would properly be more specific as every essential mode, makes no claim that the corn s removed from the cob by cutting, much less that it s ou cut in any particular manner, or with a view to any par p. 187effect. After describing his disappointment in the result when he merely cooked the corn, and in attempting to preserve it when packed, without removal from the cob, or where it was removed after having been boiled on the cob, he says, “Finally I adopted the process of removing the corn from the cob, packing the kernels in cans, hermetically sealing the same, then boiling the cans until the corn contained therein became completely cooked.” The word “ cutting ” is not to be found in this patent. Removal from the cob before commencing the preservation, without reference to the manner or means, except only that they should be suitable, is the plain intent of both patents. In this respect they are identical with each other, and are not inconsistent with Durand's patent.

Damages are claimed in this case by the complainants for an alleged infringement of two certain letters-patent, which are fully described in the bill of complaint. Those letters-patent are as follows: (1.) No. 34,928, dated April 8, 1862, for a new article of manufacture; namely, Indian corn when preserved in the green state, without drying the same, the kernels being p. 188removed from the cob, hermetically sealed, and heated, substantially in the manner and for the purpose set forth in the specification. (2.) No. 35,274, for a new and useful improvement in preserving green corn.

Defences involving the validity of a patent cannot be satisfactorily examined or their sufficiency or insufficiency determined without first ascertaining what the inventions are which are the subject-matter of the controversy. Beyond doubt, the invention secured by the first patent is for a new and useful manufacture described as Indian com preserved in the green state. What the inventor desired to accomplish was to preserve the unripe corn in the green state for table use, without drying the same; and he states, that, in his first attempt to complish the desired result, he did not remove the kernels from the cob, but that the product manufactured in that mode was not satisfactory, as the article obtained was very bulky, and failed to retain the pecuhar sweetness of green corn cooked in p. 189the ordinary way, the same being absorbed, as the patentee supposes, by the cob.

Argument to show that the commissioner may grant a patent or a product or new manufacture and one for the process is quite unnecessary, as that question is now firmly settled in p. 190favor of the power by the unanimous decision of this court. Goodyear v. Rubber Co., 9 Wall. 788; 2 Cliff. 371: Seymour v. Osborne, 11 Wall. 559; G-oodyear v. Railroad, 2 Wall. C. C. 356; Curt, on Patents, 4th ed., sect. 269.

Many and varied attempts were made by the patentee o preserve green corn on the cob without drying the same, n all his efforts in that behalf were unsuccessful, as they left the article dry and unpalatable, as the sweetness of the green corn was absorbed by the cob. Experiments of the kind having p. 191failed, he conceived the idea of first removing the corn from the cob, and then boiling or cooking the kernels, and preserving them as separated from the cob.

Unripe ears of corn may be boiled and hermetically sealed in cans without infringing the inventions of the patentee; but the ifficulty with that product is, that the cob absorbs the sweetness of the kernels, and the article becomes insipid and unpalaa le, and consequently it is not salable to any considerable extent. Sales of such a product do not infringe the patents of e complainants; and it is clear that the kernels may be removed from the cob, and then preserved in cans in the ordinary e, without any conflict with the improvements embodied in e complainants’ patents: but the product which such a process p. 192produces is comparatively valueless, as the fine flavor of green corn cooked in the usual way for table use is lost in the process of manufacture.

Sealed cans, if sufficiently strong, it would seem, may be use to complete the process without the necessity of puncturing during the period they are exposed to the boiling bath, u, unless the cans are very strong, the recommendation is to puncture them, in order to relieve the internal pressure and o prevent them from bursting. Other advantages result tram puncturing the cans which deserve consideration. Even i cans when not punctured do not burst, still the air con ame p. 193in the same and the vapor become moré or less expanded by the heat, so as to press the heads of the can outward, giving the can the appearance of cans which contain gaseous products of decomposition; and the statement is, that such appearances, even when the corn is perfectly preserved, diminish the value of the product as an article of commerce, and show that it is better to puncture and reseal the cans during the process of boiling.

Examined merely in the light of the pleadings, the affirmaive of the issue is upon the complainants; but, the complain-vol. i. 13 p. 194ants having introduced the respective patents in question, the rule is well settled that the burden of proof is changed, and that it is incumbent upon the respondent to show by satisfactory proof that the alleged inventor was not the original and first inventor of the respective improvements, as they have alleged in their answer.

Unable to controvert those propositions, the respondent nex refers to the English patent granted to Durand, and insists that it supersedes both of the patents of the assignor of the plainants. His patent bears date the 30th of August, , and the specification states, in substance, that he enc oses p. 195food or articles to be preserved in bottles, or other vessels of glass, pottery, tin, or other metals or fit materials, and closes the apertures of the vessels so as completely to cut off and exclude all communication with the external air. When the vessels have been thus charged and well closed, he places them in a boiler, each separately surrounded with straw or wrapped in coarse cloth, or otherwise defended from striking against each other. He then fills the boiler so as to cover the vessels with cold water, and gradually heats the water till it boils, and continues the ebullition for a certain time, which, as he says, must depend upon the nature of the substances and other obvious circumstances.

Certain vegetable substances may, perhaps, be preserved to advantage in that way; but it is clear that the application of igh heat to the vessels containing green corn, unless the kernels were surrounded by water or some other suitable liquid, would necessarily dry the kernels, and render them unfit for ta le use without soaking or reboiling. Doubtless the term vegetable substances ” is comprehensive enough to include green com: but the patentee, in enumerating the articles to be preserved, does not mention green corn; and, of course, the specication contains nothing to indicate whether the kernels are or are not to be removed from the cob before they are placed in e ottles or other vessels; or, if to be removed, in what p. 196manner the removal is to be effected; nor whether the kernels are to be left whole or broken, as in the mode of operation described in the patents in question.

causing it to retain the sweetness, peculiar flavor, an na p. 197aroma of green com fresh, gathered from the field, and boiled in the usual way for table use. Nothing of the kind is suggested in the foreign patent; and it is clear that a careful comparison of the description of the complainants’ patents with that of the Durand patent fully justifies the opinion of the learned expert examined by the complainants, that the two patented processes are essentially and substantially unlike, and confirms the conclusion already expressed, that persons having no other knowlledge of the complainants’ process than what they can derive from perusing the specification of the foreign patent would never be able to preserve green corn by the complainants’ mode of operation.

Prompt action is required to accomplish the object; for, if the mixture is exposed to the air for any considerable time before the cans are filled, the chemical relations of the constituents will be changed, and the whole substance will become sour and unwholesome. Exposure to heat, if seasonable, will prevent t at tendency, as the relations of the constituents of which the p. 198mixture is composed will become fixed, and the danger of putrefaction or souring will be greatly diminished, or be entirely averted.

No doubt the kernels may be removed from the cob without cutting, and may be preserved in that form under the process described in the foreign patent: but the decisive answer to that concession is, that that process is not the process of the complainants; and the product preserved in that mode of operation is of a very inferior quality, as appears by the concurrent testimony of all the witnesses. Sweet corn in the green state is a peculiar substance, differing in material respects from any other cereal or vegetable used for food. Its constituents are such, that p. 199it is singularly susceptible to fermentation, decomposition, and change, — more so than any other vegetable that has been successfully preserved in hermetically-closed vessels for any considerable length of time. Such liability to rapid change is not due to any one particular constituent, but to the presence of several, such as gluten, sugar, fat, and starch, in such proportions as are calculated to promote fermentation and action upon each other. As compared with sweet pease, for instance, the kernels of sweet corn are much more delicate, and liable to change, as they contain a much larger proportion of milk, juice, or sap, which itself contains more sugar, starch, and oil than the juice of sweet pease, and the glutinous constituents which act as the ferment or primary cause of change are much more active in the juice of sweet corn than in that of sweet pease.

The facts, as established by the evidence on both sides, and which cannot justly be disputed, are as follows: About ay break on the morning of July 17, 1870, the weather being e, p. 201and free from fog, the sailing scow “ Meisel ” entered the Detroit River on her voyage from Lake Erie to a port on Lake Michigan. The wind was west-south-west, free to the scow; and she sailed in a course generally north, but by the marks upon the land, which were well known to her captain, and plainly visible, rather than by the compass, keeping nearer to the Canadian than the other shore. As she passed the village of Amherstberg, the steamer “ Jay Cooke ” came out from the dock at that place, and passed the scow on her starboard side, at a distance of twice or three times the length of the steamer. The propeller “ Free State ” was then approaching on her passage down the river. As the steamers approached each other, the “ Jay Cooke ” gave one blast of her whistle, which was responded to by the “Free State” by the same signal. This indicated that the steamers would pass each other port to port. After the “ Cooke ” had passed away from her, the scow ported her helm to get into the wake of the “ Cooke.” As the propeller approached nearer, a second order to pOrt was given by the master of the scow; and she was sailing under this order when she was struck by the propeller on her port side, near the main rigging. The scow was sunk by the collision, and the wife and child of the master were drowned.

e are of the opinion that she did, not only on the testimony p. 202of all on board the propeller, but by the testimony of the master and mate of the scow. The evidence of the master shows, that, as she entered the Detroit River, the course of the scow was northerly, the wind being west-south-west, the sails on her starboard side, and within two hundred or three hundred feet of the Canada shore. He says, that, when the “ Cooke ” passed him, the propeller was three hundred or four hundred feet distant between him and the shore; that, as soon as the “ Cooke ” had passed, he ordered the man at the wheel to keep her off a little; that she swung right off to the mainland (the Canada side). He told him to steady, and he did so. The “ Cooke ” had, before this, blown the single whistle; and the captain says he supposed he could follow in her track, and pass the propeller on the port side.

The mate is more explicit. He says, that, as the “ Cooke was coming up under their quarter, the captain gave the order to keep her up a little, so as to give the “ Cooke ” more room, and that under this order she swung to port between two and three points of the compass, and ran under that order till the “ Cooke had passed them. How long a period of time this was, or what distance of travel it covered, is not stated. The “ Cooke ha just come out of the dock at Amherstberg, and probably had not acquired much speed. The scow was a free sailer, as is state, handled well and easily; and, with all sails drawing, she was under way. As the “ Cooke ” began to lap her quarter, she bore to the west, and so continued till the “ Cooke ” had entirely e her. Although we do not know the time or the distance t a p. 203they so sailed together, we do know that it was so long and so far: first, that the “ Cooke ” escaped entirely from her; and, second, that the propeller deemed her then course to be the course adopted by the scow; that she would continue upon that course; and that, to pass her safely, she must shape her own course to the eastward.

It is contended that here was risk of collision ; that the propeller did not slacken her speed or stop and reverse in time, and hence that she was also in fault, and the damage should be apportioned. A collision did certainly occur; but was the situation of the parties such that the principle of this article applied ^6 propeller ? Does this article contemplate a case where a co lision is the result of sheer negligence, and disobedience of we 1-known rules ? or does it apply to cases, where, supposing the parties intend to perform and do reasonably perform their respective duties, the emergency is such that there is still danger at a collision may occur ? — as if, instead of their being, as p. 204was the fact, but the three vessels — the “ Cooke,” the “ Meisel,” and the propeller — within a mile of the scene of action, and with a channel a thousand feet in width, there had been two other sailing vessels alongside of or immediately in the rear of the “ Meisel.” The “ Meisel,” as the “ Cooke ” approached, bore off to the west. If one of the other supposed vessels had borne to the east, and the third had continued a northerly course, the propeller would have been placed in an embarrassing position. If she should bear westerly, she would meet the “ Meisel; ” if easterly, she would encounter the second vessel; and, if she continued her course without variation, she would be upon the third supposed vessel. It would be the plain duty of the propeller under these circumstances, in compliance with the sixteenth article, to slacken her speed, to stop and reverse if necessary, and wait until time should point out the safe course to be pursued. It would be a case involving risk of collision.

In the case of the “ Scotia,” above quoted, the court say (14 Wall. 170), “ This duty of a steamer to keep out of the way implies a correlative obligation to the ship to keep her course, and to do nothing to mislead. Nor is the steamer called to act except where she is approaching a vessel in such a direction as to involve a risk of collision. She is required to take no precautions when there is no apparent danger. Was the “ Scotia,” en, m fault ? We have already said that she was not bound o take any steps to avoid a collision until danger of a collision p. 206should have been apparent; and we think there was no reason for apprehension until the ship light was seen closing in upon her. It is not the law that a steamer must change her course or must slacken her speed the instant she comes in sight of another vessel, no matter in what direction it may be. The Earl of Elgin, L. R. 4 P. C. L.; The Potomac, 8 Wall. 590; Williamson v. Barrett, 13 How. 101.