is

terms. The phraseology is elliptical. By "person" is meant all men not under legal incapacity; or, as the paragraph explains itself, to apply to such as are "entitled to the exclusive use." To have no title, and not to be in a condition to assert it, have the same result. How could the alleged mark be "lawful," with no law to uphold it? One condition precedent to registration and consequent protection is the "filing of a declaration under the oath of the person," &c. By "person meant one who can legally take an oath. A perjured felon's oath cannot be accepted. Therefore, a perjured felon cannot be included by the general expression "any person," which consequently does not mean any and every man regardless to his position and character. The conclusion is obvious: the words "any person" include only such as are capable of taking and holding title.

§ 284. If we needed any further confirmation of the correctness of this interpretation of the word "any" as used in this section of the statute, we might adduce a parallel case furnished by this very same general Act.-Section 24 says, "That any person who has invented or discovered any new and useful art, machine," &c., &c., "may upon payment of the duty required by law, and other due proceedings had, obtain a patent therefor." Does the word "any" mean literally any and every person, as is contended by the superficial reader? No! Why does it not embrace every person who shall have fulfilled all the conditions and requirements of the section? Because the general rule has an exception, as is obvious at a glance at section 16 of the statute. That says, "That all officers and employees of the Patent Office shall be incapable, during the period for which they shall hold their appointments, to acquire or take, directly or indirectly, except by inheritance or bequest, any right or interest in any patent issued by said Office." Just as one class of persons is expressly excepted by the words of the statute in one case, so is another class excepted by a necessary implication of law in the other case. Fragments

of laws are not law. Any person having a right to the exclusive use of a trade-mark may obtain protection. If the right exist, it will be recognized.

§ 285. Married Women. By the common law of England and of this country, a married woman is wholly incapable of entering into mercantile contracts on her own account. By the fact of marriage all the personal property which she has in actual possession becomes absolutely her husband's, as entirely as if she had made a transfer of it to him. But in several of our States, the common law, which was of feudal origin, being considered inappropriate to our own state of society, has been essentially modified by statutory provisions, and married women become sole traders, with or without the consent of their husbands. There is a growing disposition both in the legislatures and in the courts to hold that a woman who is deserted by her husband, and who is laboring successfully as a trader to maintain herself, and perhaps her children, is in substance a sole trader, liable on her own contracts, and entitled to her own earnings. If she may lawfully traffic in merchandise, it is because she has a property therein as a trader; and as an incident to her mercantile rights she is entitled to protection of her trade-mark. The Office will not inquire into the question of marriage. Nor will it question the age of any applicant. All other matters being regular, the certificate of registration will issue, leaving the subject of domestic relations to be settled in another tribunal.

§ 286. Firm. A firm is the name, title, or style under which a company transacts business; hence, a partnership or house; as the firm of Hope & Co.2 Seemingly there is an impropriety of language in using this word in connection with the word "domiciled," for the idea of domicile involves that of personality. A mere name, title, or style, could not be domiciled. However, we have the consoling reflection that a want 1 See Parsons on Contracts, title Married Women. 2 Webster's Un. Dic. and Worcester's Dic.: Firm.

of grammatical correctness will not vitiate, if the meaning can be gathered nam mala grammatica non vitiat chartam. The term may be used in a corrupted sense to mean the aggregation of individuals represented by a certain title, i.e., that the individuals comprising the house must be domiciled. If used elliptically, then it seems all the partners of the house must be meant. In that case, suppose that some of the partners are domiciled in one country and some in another, could the house be said to be domiciled in this country? A want of due care in this regard may possibly give rise to perplexing and complicated questions. Before applying for registration, it should be clearly ascertained whether a number of applicants constitute a partnership or not. If yea, the safer course would be for the domiciled members only to apply; for if the title to the mark be vested in individual names, the partnership may by license have all the benefit of it. This apparently-trifling point is worthy of consideration in order to guard the interests of owners claiming protection under this statute, even in cases where at common law the mark would be valid whether the owners were domiciled or not.

§ 287. Domiciled. - In certain cases domicile is an essential prerequisite to registration; and, being essential, it should be set out in the application-papers. When not averred distinctly, it will be inferred from circumstances. It is because the term "domicile" has not been understood, and has so often been confounded with a mere abiding-place, that the Office has been led to demand an oath, showing of what country the applicant is a citizen, the same as in applications for patents.1 The Office will then assume that a certain place or country is the party's domicile. What is the meaning of the word "domicile"? The definition of the term is not without difficulty; for although so many powerful minds have been applied to this question, there is no universally-agreed definition of the word, nor an agreed enumeration of the ingredients which constitute domicile.

1 Patent Office Regulation, Feb. 29, 1872.

Two things must concur to constitute it: first, residence; and, secondly, the intention of making a place the home of a person. There must be the fact and the intent. However, in many cases, actual residence is not indispensable to retain a domicile; but it is retained animo solo by the mere intention not to change it, or adopt another. Thus, if a person should go on a voyage to sea, or to a foreign country, for health, or for pleasure, or for business of a temporary nature, with an intention to return, such a transitory residence would not constitute a new domicile, nor amount to an abandonment of the old one; for it is not the mere fact of inhabitancy in a place which makes it the domicile, but it is the fact, coupled with the intention of remaining there, animo manendi.1

§ 288. There is sometimes no small difficulty in deciding upon the place of domicile, in a strict and legal sense. Residence is oftentimes of a very equivocal nature, and an intention to return to a former residence is still more obscure. Both are sometimes to be gathered from slight circumstances of mere presumption, and from equivocal and conflicting acts.2 Thus, at the federal seat of government there are many office-holders in the civil service who claim domicile in States from which they have been absent many years, and in which they hold but the shadow of a nominal residence; and yet they assert and frequently exercise the right to vote in their respective States, just as our ministers to foreign courts, and soldiers and sailors may do, when they return to homes from which they have long been absent. To complicate the question as to their fixed, true, and permanent residence, these office-holders sometimes vote at the municipal elections in the District of Columbia; and their right to do so has been maintained by high legal authority. Yet an inhabitant of one State does not acquire a domicile in another by merely coming to the latter to seek employment, with the intention of residing there only if he should find it.3 In Abing2 Ibid., § 45.

1 Story, Conflict of Laws, § 44.

3 Ross v. Ross, 103 Mass. 575.

ton v. North Bridgewater, the learned Chief Justice Shaw said truly that "every one has a domicile of origin, which he retains until he acquires another, and the one thus acquired is in like manner retained. The supposition that a man can have two domiciles would lead to the absurdest consequences. If he had two domiciles within the limits of distant sovereign States, in case of war, what would be an act of imperative duty to one would make him a traitor to the other." He might thus, during a period of hostilities, become an enemy to himself, or be bound to do personal service in two military districts of the same State at the same time; or in two countries be compellable to serve on juries at the same moment; or, as in our late civil war, be held to duty as a conscript in one district when the quota of troops had actually been filled by him in another.

§ 289. Every person must have a domicile somewhere. First, the place of birth of a person is considered to be his domicile, if at the time of his birth it was the domicile of his parents. If his parents are then on a visit, or on a journey (in itinere), the home of his parents (at least, if it be in the same country) will be deemed the domicile of birth or nativity. Persons born out of the limits and jurisdiction of the United States, whose fathers were at the time of their birth citizens of the United States, are citizens of the United States; but the rights of citizenship shall not descend to persons whose fathers never resided in the United States,2 for their domicile would be abroad. An illegitimate child follows the condition of his mother. A child born on the high seas has his domicile in the country of his parents. The domicile of birth of minors continues until a new one is obtained. Minors are generally deemed incapable, proprio marte, of changing domicile, and retain the domicile of their parents; and if the father die, his last domicile is that of the minor children. A married woman follows the domicile of her husband; but 2 Act of Congress, Feb. 10, 1855.

1 23 Pick. 170, 177.