ard policy provides that it shall be void "if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used or allowed on the above described premises" certain specified articles.

§ 20. Vacancy and unoccupancy. The New York Standard fire policy provides that it shall be void, if a building insured shall "be or become vacant or unoccupied and so remain for ten days."

§ 21. Non-user of manufacturing establishments. This clause is very similar in its nature and character to the clause last examined. The New York Standard policy provides that it shall be void "if the subject of insurance be a manufacturing establishment and . . . it cease to be operated for more than ten consecutive days."

§ 22. Immediate notice of loss. The New York Standard policy requires the insured after fire to give "immediate notice of loss to the company." In one case where there was no reason why the insured should not have immediately sent in his notice of loss, it was held that a delay of 48 hours was a violation of this requirement of the policy.

§ 23. Proof of loss. The language of the policy also requires "proof of loss to be furnished within sixty days after the fire." This being a definite fixed period must be conformed to by the insured.

§ 24. Certificate of loss. The New York Standard policy provides that the insured shall upon the request of the company "furnish a certificate of the magistrate or notary public living nearest to the place of fire." The courts have held, as to this requirement, that the difference of a few feet would not violate the requirement, where both magistrates lived substantially the same distance from the place of fire. But if the magistrate whose certificate is obtained is substantially farther away, it does not satisfy the requirement. Nor is it any excuse that the nearest magistrate refused for any reason to give the certificate.

Section 2. Same: Life Insurance.

§ 25. Language of policy. There is no such large number of conditions in life insurance as are found in fire insurance policies.

§ 26. Time of payment of premium. One clause of the life policy that should be examined at the present time is that requiring the premium to be paid on or before a fixed date. If this date falls on Sunday, the insured has until the following day to make his payment. The right of paying the agent of the company, if he can give a receipt properly signed, has been held to be merely a privilege extended to the insured by the company, with the consequent result that it is no excuse for non-payment that the agent did not let the insured know of the premium day. And it has also been held, although the decision is perhaps open to question, that if the local agent dies or cannot for any reason be found, this will not excuse non-payment by the insured on the date specified. If payment is made by mail or express it must reach the company upon the day on which it is due.

§ 27. Incontestable clause. Most life insurance policies have a clause providing that the policy shall be incontestable after two years, or some other stated time. This clause waives all defenses by the company, save that of insurable interest. Since this is a requirement imposed by public policy, it cannot be waived no matter how willing the parties are so to do. Of course, if the policy reserves the right, as it frequently does, to contest for non-payment of premiums, fraud, or suicide, then the company may do so.

§ 28. What deaths are not covered by the policy: Execution, suicide, death in crime. Not all deaths are covered by a life insurance policy. It is clearly established that when the insured has been executed as a felon, it is contrary to public policy to allow a recovery. The same principle has been held in a number of jurisdictions to prevail where the insured deliberately committed suicide.

Where the policy is taken out in good faith but the insured later on commits suicide, the courts in general allow a recovery where the policy is payable to some third person as 'beneficiary. This has been rested upon the ground that the beneficiary has a vested interest, independent of the relation between the insured and the insurance company, and that the beneficiary therefore recovers in his own right and not merely as the representative of the deceased. For converse reasons, the courts have refused a

recovery on the same facts where the policy was made payable to the estate of the deceased. In many policies at the present time there is a clause which provides that there shall be no recovery if the insured shall be executed for a crime or commits suicide. This clause of course settles the matter, and under such circumstances there can be no recovery either by the representative of the deceased or by the beneficiary. Another similar clause is frequently found, which provides that there shall be no recovery where the death took place while the insured was engaged in a violation of the law. Under such circumstances, a recovery was refused where the insured had been justifiably killed in selfdefense by a person whom he had attacked.

CHAPTER XVI.

TRADE-MARKS.

§1. Definition, origin, and nature. A trade-mark is a sign, mark, symbol, word or words, or device attached to goods, and adopted by the manufacturer or seller thereof to distinguish his production from other productions of the same article. Its purpose is to indicate, not quality, but the origin and ownership of the article to which it is attached. It may consist of any design, mark, symbol, word or words, or device not previously appropriated by another, and not barred from use as a trade-mark by some rule of law. Trade-marks are of common law origin, and were recognized in a decision as early as 1590, but did not obtain a very firm footing in the law until two centuries later.

§ 2. How exclusive right to trade-mark is acquired. The exclusive right to a particular word, device, or sign as a trade-mark, by a manufacturer, merchant, or trader, is acquired by priority of appropriation, or by transfer or succession to one such party from another who has previously acquired it. The claimant of a trade-mark by user must have been the first to use or employ it on goods, manufactured or dealt in by him. A single instance of use, with accompanying circumstances evidencing an intent to continue that use is sufficient to establish the right, and there is no requirement that the use shall continue for any prescribed or definite length of time.

The United States Trade-Mark Act, which will be considered further on in these pages, does not confer on any one the exclusive right to a trade-mark, but merely provides for the registration of a trade-mark by one who has acquired the exclusive right to it; and that such registration shall be prima facie evidence of his right. As a trade-mark has no necessary relation to invention or discovery, as between two rival claimants, it is the party

who first actually uses a mark, and not the one who first thought of it or designed it, who is entitled to protection in its use as a trade-mark; and a mere declaration of intention to use a mark in the future does not create a right to its exclusive use as a trade-mark.

§3. What marks may be acquired. The rules of the common law as to what marks may or may not constitute valid trademarks are substantially preserved in the Trade-Mark Act discussed hereinafter, section 5 of which declares what kinds of marks may be registered as trade-marks, and what kinds not.

The Trade-Mark Act in general provides for the registration in the Patent Office of trade-marks used in commerce with foreign nations, or among the several states, or with the Indian tribes, and confers upon United States courts jurisdiction in civil actions at law for damages and actions in equity for injunctions and damages, against any person wrongfully using any such registered mark in commerce among the several states, or with a foreign nation, or with the Indian tribes. The act, therefore, purports to be, and is, a regulation of such commerce.

§ 4. Who may register? Any owner of a trade-mark who is domiciled within the territory of the United States, or has a manufacturing establishment within the territory of the United States, or resides in or is located in any foreign country which by treaty, convention, or law affords similar privileges to the citizens of the United States, may, subject to the provisions of the act, register his mark in the Patent Office.

§ 5. What marks may be registered? Any mark used in commerce as above noted, by which the goods of the owner of the mark may be distinguished from other goods of the same class, may be registered, unless such trade-mark:

1. Consists of or comprises immoral or scandalous matter. 2. Consists of or comprises the flag or coat of arms or other insignia of the United States, or any simulation thereof, or of any state, or municipality, or of any foreign nation, or of any design or picture that has been, or may hereafter be, adopted by any fraternal society as its emblem.

3. Is identical with a registered or known trade-mark owned