
51 U.S. 329 (____)
10 How. 329
JAMES STIMPSON, PLAINTIFF IN ERROR,
v.
THE BALTIMORE AND SUSQUEHANNA RAILROAD COMPANY.
Supreme Court of United States.

*337 The case was argued by Mr. Mayer, for the plaintiff in error, and by Mr. Campbell, for the defendant in error.
Mr. Campbell, contra.
*341 Mr. Justice DANIEL delivered the opinion of the court.
This case comes before us upon a writ of error to the Circuit Court of the United States for the District of Maryland.
The plaintiff in error instituted in the Circuit Court his action on the case to recover of the defendant damages for an alleged infringement of a patent granted to the plaintiff on the 23d of August, 1831, and subsequently, under the authority of *342 the United States, renewed and extended to him for an additional space of seven years from the expiration of the first grant.
On the trial of this suit upon the plea of not guilty, the parties by agreement submitted their cause to the court upon a case stated. The court, on the case thus made and submitted, gave judgment in favor of the defendant; and to test the correctness of this judgment is the purpose of the investigation now before us.
The invention or improvement claimed by the plaintiff in error, and by him alleged to have been pirated by the defendant, is thus described in the schedule and specification filed with and made a part of the letters patent:  "A new and useful improvement in the mode of forming and using cast or wrought iron plates or rails for railroad carriage-wheels to run upon, more especially for those to be used on the streets of cities, on wharves, and elsewhere; and I do hereby declare, that the following is a full and exact description of my said inventions or improvements.
"For the purpose of carrying railroads through the streets of towns or cities, or in other situations where circumstances may render it desirable that the wheels of ordinary carriages should not be subjected to injury or obstruction, I so construct or form the rails, that the flanches of the wheels of railroad cars or carriages may be received and run within narrow grooves or channels, formed in or by said rails, said grooves not being sufficiently wide to admit the rims of the wheels of gigs or other ordinary carriages having wheels of the narrowest kind."
After some remarks descriptive of the shape and dimensions of the plates or rails, and of the grooves to be used, the specification thus proceeds:  "Should it be preferred to use the ordinary flat wrought-iron rails, they may be laid double, at such distance apart as to form the proper channel for the flanch between them. Wrought plates may also be formed in the manner represented in figure 7. This plate is rolled so as to have a channel in it, which may be one inch and a quarter wide at top, one inch at bottom, and five eighths of an inch deep. Where it is necessary to cross a water-gutter in the street, I use a cast-iron plate or plates to cross said gutter, the flanch channels being in such plate or plates. The whole surface between the channels is cast rough, to prevent the slipping of the feet of horses. The aforesaid cast-iron plate is best cast in one piece, as it will be stronger than if divided; although of the same thickness, it must of course be of a width sufficient for the particular gutter to which it is to be applied; and it should be strengthened by ribs cast on the lower side. In some cases *343 I cover the gutters the whole width of the street with such cast-iron plates, and extend them to some distance beyond the curbings. I thus make a great improvement in streets for the ordinary purposes of travel." Such being substantially, and indeed literally, as far as it is set forth, the descriptive part of the plaintiff's specification, his claim, or the substance and effect of his alleged invention and improvement, is given in these words:  "What I claim as constituting my invention, and desire to secure by letters patent, 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 well-known 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 inequality 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 *344 agreed by the parties, viz.:  "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, construct, 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 or 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 *345 the general 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 characteristics 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 Peters, 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 Peters, 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 Circuit 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 cognizance thereof? *346 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 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 against Eliason, reported in 16 Peters, 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, *347 and therefore there is no ground of error set forth, 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 the Fourth, ch. 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 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 misapprehension 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 Court be, and the same is hereby, affirmed.

Order.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Maryland, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs.
