US SUPREME COURT DECISIONS

Where a party excepts to a ruling of the court, but, not standing upon his exception, elects to proceed with the trial, he thereby waives it.

The statutes of limitation of the several states apply to actions at law for the infringement of letters patent.

This was an action at law for the infringement of letters patent No. 42,920, issued May 24, 1864, to James Knibbs for an improvement in fire engine pumps, of which patent plaintiffs were the assignees. The patent expired May 24, 1881. The action was begun May 20, 1887, in the name of Ruel Philbrook and several others, among whom was Christopher chanrobles.com-red

Page 155 U. S. 611

C. Campbell, the plaintiff in error, claiming to be at different times assignees of the patent and of claims for infringements of the same.

Defendant pleaded, among other things, that "the cause of action mentioned in the plaintiffs' declaration did not occur within six years before the suing out of the plaintiffs' writ."

Upon the trial, the plaintiffs introduced evidence to show that Philbrook, by assignments, had received all the title, as assignee, held by the several assignors to him during the life of the patent, and claimed the right to proceed in one suit in the name of all his prior assignors.

The court ruled that the action could not be maintained, and that Philbrook could not sue in the name of all the assignors, but only in the name of the party or parties who held the entire title to the patent in suit for the time being.

To this ruling the plaintiff Philbrook excepted, and his exception was then and there allowed, and thereupon, by leave of the court, the plaintiff, for the purposes of that trial, discontinued as to all the plaintiffs named in the writ except Christopher C. Campbell, and proceeded in his name. It was admitted for the purposes of the trial that the entire title in the patent vested in Christopher C. Campbell, individually or as trustee, from the 10th day of October, 1877, to the 20th day of December, 1880, and for the purposes of the trial no claim for damages was made in behalf of said Campbell after December 20, 1880.

The defendant then asked the court to direct a verdict for the defendant on the ground that the action was barred by the statute of limitations of the Commonwealth of Massachusetts, as all claims for action under the admission terminated December 20, 1880, and the writs were dated May 20, 1887, and were served on the 23d day of May, so that more than six years had elapsed. The court acceded to this view, decided that the Massachusetts statute of limitations was a defense to the suit, and directed a verdict for the defendant. Whereupon plaintiff Campbell sued out this writ of error. chanrobles.com-red

Page 155 U. S. 612