Stimpson v. Baltimore and Susquehanna Railroad Co. 10 H.

invention and improvement, is given in these words: "What 1 claim as constituting my invention, and desire to secure by letterspatent, is the employment of plates or rails, either of cast or of wrought iron, constructed and operating upon the principle or in the manner herein described; having narrow grooves on each side of the track for the flanches of car-wheels to run in, by which they are adapted to the unobstructed passing over them of the various kinds of common carriages, and to the running of the wheels on slight curves without dragging. I also claim, in combination with such grooved rails or tracks, the employment of plates of cast-iron for the covering and crossing of gutters, such plates being constructed as described, and having the necessary flanch channels cast in them.".

It is manifest from the description of the plaintiff, as given both in his specification and claim, that the improvement he alleges to have been made by him, whether important or otherwise, consists essentially, if not formally, in a combination. His grooves for the admission of the flanches of car-wheels, whether cast in iron plates or produced by the juxtaposition of two flat iron rails, and the rails themselves, were all of them long previously known, and long familiar in use; and it was by an application or combination of these familiar means or agents that he was to accomplish the result proposed, namely, the unobstructed passage of carriages over railroad tracks when laid in streets or cities. The only idea or design in the plaintiff's description which wears the semblance of originality, is that of sinking or depressing these known agents or materials in combination to a level with the surface over which the passage of ordinary carriages was to take place. Still, these agents or materials were the same wellknown grooves, the same car-wheels and flanches, and the same flat rails, which were to constitute the means of the plaintiff's operations And the object of these operations, the essential improvement claimed, it should be constantly borne in mind, is the preventing of an inequal ity in the surface of streets, forming an obstruction to ordinary carriages, by reducing the railroad track to the same plane with the surface of the streets themselves.

The acts of the defendant complained of as being an infringement of the plaintiff's patent are thus set out in the case agreed [* 344] *by the parties, namely: "That, before and since the period of said extension of the first above-mentioned patent, the defendant, a corporation created by the general assembly of Maryland for the business of, and engaged in, the transportation of passengers and goods by railways belonging to it, did, upon its railway, and as part thereof, in the city of Baltimore, and at the corner of two streets to be turned in the course of said transportation, con

Stimpson v. Baltimore and Susquehanna Railroad Co. 10 H.

struct, and has ever since kept up and used, a curve furnished and fitted as follows, to wit: On the inner side of the curve is placed a double iron rail cast in one piece, and with the interval between large enough to allow the admission of the flanch of the wheel, the rail on the outer side being the usual one throughout the curve, without difference of any kind, except that it is curved; and it is admitted that the passage of the cars round the curve is throughout, and always has been, upon the treads of the wheels; and these rails were intended and used for the purpose of enabling the cars to turn the curves of the streets above mentioned." The mechanism thus described as used by the defendant is, like that contained in the specification annexed to the patent of the plaintiff, evidently a combination, or an application of means or agencies previously known. If that mechanism can have any claim to originality, it must be in the modus or plan of that application, not in the invention of the several parts of the mechanism.

It remains, then, by a comparison of these two combinations, to ascertain whether they are the same, either in form, or in the manner of their operation, or in the results they were designed to accomplish.

The combination claimed by the plaintiff as his improvement consists of the use of grooves on both sides of a railroad track, and either cast in iron plates, or made by the parallel position of double lines of flat rails, in which grooves the flanches only of car-wheels are to run, and which are likewise to be too narrow to admit the wheels of carriages having the most slender rims or felloes; and the whole of this combination or mechanism is to be depressed to a plane exactly corresponding with that of the street in which it may be introduced; as, without this arrangement, it is obvious that the unobstructed passage of ordinary carriages (the great object in view) could never be attained. The machinery of the defendant, complained of as an infringement of the plaintiff's patent, consists of a double flat rail of cast iron placed on the inner side of a curve oi corner intended to be passed, and an ordinary flat rail on the exterior line of the same curve to be passed; and the whole of this machinery is constructed on the same plane with *the gen- [* 345 ] eral track of the road, elevated to whatever point that track may be raised, and without regard to the convenience of ordinary carriages making transverse passages through the streets; such facilities to ordinary carriages being no part of the end proposed by the defendant. From this comparison of the combinations in use by the plaintiff and the defendant respectively, and upon a just construction of the plaintiff's patent, the court, so far from regarding them as identical either in mode, in design, or in result, is in all their charac

Stimpson v. Baltimore and Susquehanna Railroad Co. 10 H.

teristics constrained to view them as wholly dissimilar, and as not conflicting with each other. The combination, therefore, used by the defendant, cannot be regarded as an infringement of the plaintiff's patent. This conclusion is in strictest accordance with the ruling of the late Justice Story at circuit in the case of Prouty v. Ruggles, afterwards confirmed by this court, as will be seen in 16 Pet. 341. In the case just cited, the law is thus propounded by the chief justice: "The patent is for a combination, and the improvement consists in arranging different portions of the plough, and combining them together in the manner stated in the specification, for the purpose of producing a certain effect. None of the parts referred to are new, and none are claimed as new; nor is any portion of the combination less than the whole claimed as new, or stated to produce any given result. The end in view is proposed to be accomplished by the union of all, arranged and combined together in the manner described; and this combination, composed of all the parts mentioned in the specification, and arranged with reference to each other, and to other parts of the plough in the manner therein described, is stated to be the improvement, and is the thing patented. The use of any two of these parts only, or of two combined with a third, which is substantially different in form or in the manner of its arrangement and connection with the others, is therefore not the thing patented. It is not the same combination, if it substantially differs from it in any of its parts." The same doctrine is ruled in the case of Carver v. Hyde, 16 Pet. 513.

A preliminary question was raised in the argument of this cause, which, as it is connected with the practice in this court and in the courts inferior to this, and has an important bearing on the convenience both of the courts and the bar, is deserving of consideration. The question alluded to is this: Whether, as this case is not brought up either upon express or specific exceptions to the rulings of the cir cuit court, nor upon any decision of that court upon a special verdict found by the jury, but comes before us upon an agreed statement

between the parties, this court can in this form take cogni[346] zance thereof? *And it is insisted for the defendant in

error, that, under such circumstances, the writ of error could not be prosecuted. The objection thus urged is not one of the first impression in this court; it has been urged upon, and considered by, them on a former occasion, and must be regarded as having been put to rest.

This objection to the jurisdiction of the appellate court upon a case agreed between the parties in the court below, had its origin, no doubt, in the practice in the English courts, by which we are told

Stimpson v. Baltimore and Susquehanna Railroad Co. 10 H.

that the appellate tribunal will not take cognizance of such a case, as it will upon one standing on exceptions, or on a special verdict.

This refusal, however, so to take cognizance, will, upon examination, be found to grow out of the peculiar modes of proceeding in the English courts, as is shown by Mr. Justice Blackstone, in the third volume of his Commentaries, p. 377, in his chapter on the trial by jury, in which we find the following account of the proceedings in those courts. "Another method," says this writer, " of finding a species of special verdict is, when the jury find a verdict generally for the plaintiff, but subject, nevertheless, to the opinion of the court above, on a special case stated by the counsel on both sides, with regard to the matter of law, which has this advantage over a special verdict, that it is attended with much less expense, and obtains a speedier decision; the postea being stayed in the hands of the officer of nisi prius till the question is determined, and the verdict is then entered for the plaintiff or the defendant, as the case may happen. But as nothing appears on the record but the general verdict, the parties are precluded hereby from the benefit of a writ of error, if dissatisfied with the judgment of the court or judge upon the point of law, which makes it a thing to be wished, that a method could be devised of either lessening the expense of special verdicts, or else of entering the cause at length upon the postea." So, too, Mr. Stephen, in his Treatise on Pleading, p. 92, speaking of the practice in England of taking verdicts subject to a special case, remarks, "that a special case is not like a special verdict entered on record, and consequently a writ of error cannot be brought on this decision." The objection now urged, and the authorities bearing upon it, were pressed on the attention of this court, and considered by them, in the case of The United States v. Eliason, reported in 16 Pet. 291. In that case this court said: "It is manifest that the reason why, according to the practice in the English courts, a writ of error will not be allowed after a case agreed, is this, and this only, that in those courts the agreed case never appears upon, or is made a part of, the record, and therefore there is no ground of error set forth, [* 347 ] upon which an appellate and revising tribunal can act. In the language of Justice Blackstone, nothing appears upon the record but the general verdict, whereby the parties are precluded from the benefit of a writ of error." This court goes on further to remark, that, "by a note to p. 92 of Mr. Stephen's treatise, it is said to have been enacted by the 3d and 4th of William IV. c. 42, that, where the parties on issue joined can agree on a statement of facts, they may, by order of a judge, draw up such statement in the form of a special case for the judgment of the court, without proceeding to trial. By the

Landes v. Brant. 10 H.

settled practice anterior to this statutory provision, it was in the power of the parties to agree upon a statement of the case; it would seem reasonable and probable, therefore, that the power given to the judge, (as an exercise of his judicial functions,) to regulate the statement, was designed to impart a greater solemnity and permanency to the preparation of the proceeding, and to place it in an attitude for the action of some revising power. But should a want of familiarity with the details of English practice induce the hazard of misappre hension of its rules, or of the reasons in which they have their origin, the decisions of our own courts, and the long-established practice of our own country, are regarded as having put the point under consideration entirely at rest." The court then, after adverting to several decisions deemed applicable to the point, came to the following conclusion: "This court, therefore, has no hesitancy in declaring that the point of practice raised by the defendant's counsel presents no objection to the regularity in the mode of bringing this case before it." Regarding the above conclusion as promotive both of justice and convenience, we give it our entire concurrence; and upon the character, therefore, of the particular cause before us, as disclosed in the case agreed by the parties, we decide that the judgment of the circuit be and the same is hereby affirmed.

18 H. 60; 20 H. 427; 1 Wal. 592.

ISAAC LANDES, Plaintiff in Error, v. JOSHUA B. BRANT.

10 H. 348.

A patent, issued to one whose claim under a Spanish title in Missouri had been confirmed by a board of commissioners, pursuant to an act of congress, is conclusive evidence that the grantee was the lawful owner of the title thus confirmed, and that he had the best Spanish title to that tract of land.

Where the record shows that the defendant appeared by attorney, this fact cannot be controverted in an action in which the judgment comes in question only collaterally. If voidable for want of notice, inasmuch as on its face it is valid, it should have been avoided by some appropriate direct proceeding to reverse it.

Where an imperfect Spanish title was seized and sold on execution in conformity with the local law of the Missouri territory, while proceedings were pending before a board of commissioners, and the perfect title was subsequently granted by patent to the debtor, pursuant to the decision of the board, it enured to the benefit of the purchaser of the imperfect title, both by the doctrine of relation, applicable to such a case, and because, the patentee, being dead at the date of the patent, under the act of congress of May 20, 1836, (5 Stats. at Large, 31,) the purchaser had a better title than the devisces of the patentee. Open and notorious adverse possession is evidence of notice of the title under which the possession is held, so as to give validity to an unrecorded deed.

In Missouri, in 1836, lands of a deceased debtor could be sold on execution under a judg ment against his executors.

ERROR to the circuit court of the United States for the district of Missouri, in an action of ejectment. The material facts and the course of the title are stated in the opinion of the court.