lawsuits, and to repress the gambling propensity of buying up doubtful claims. It is not nor never was intended to prevent persons from charging the subject-matter of the suit in order to obtain the means of prosecuting it. 1 Add. Cont. 392; Stotsenburg v. Marks, 79 Ind. 193. But agreements of the kind above suggested should be carefully watched and closely scrutinized when called in question, and if found to have been made, not with a bona fide object of assisting a claim believed to be just, but for the purpose of injuring and oppressing others by aiding in unrighteous suits, or for the purpose of gambling in litigation, or to be so extortionate or unconscionable as to be inequitable against the party, effect ought not to be given to them. Courts administering justice according to the broad principles of equity and good conscience, as they are bound to do, will consider whether the transaction is merely the bona fide acquisition of an interest in the subject of litigation, or whether it is an unfair or illegitimate transaction, gotten up for the purpose merely of spoil or speculation. The doctrine of champerty, to the extent that furnishing aid in a suit under an agreement to divide the thing recovered is per se void, we think ought not to prevail, when such aid is furnished by a layman; but when such contracts are made for the purpose of stirring up strife and litigation, harassing others, inducing suits to be begun which otherwise would not be commenced, or for speculation, they come within the analogy and principles of that doctrine, and should not be enforced. Gilbert v. Holmes, 64 Ill. 548; The Mohawk, 8 Wall. 153; Boardman v. Thompson, 25 Iowa, 487.

Applying these principles to the case in hand, we find that the contract between plaintiff and defendants was entered into in entire good faith, and with no intention on the part of plaintiff of officially intermeddling in the controversy between Bigne and the Manciet heirs, but only at Bigne's earnest solicitation, to enable him to obtain means to prosecute his claim. The contract was not unconscionable or unjust, but fairly entered into. Bigne had no means except the property in litigation, and the taking by plaintiff of an assignment of a one-half interest therein, as a consideration for the money advanced by him, violated no principle of law or public policy so far as we can see from this record. What was said by Thayer, J., in relation to the doctrine of champerty in Dahms v. Sears, 13 Oreg. 47, is in regard to contracts between attorney and client, and has no application here. The relation of attorney and client between Brown and Bigue did not exist, and this opinion is confined to the case before us.

The decree of the court oelow is therefore affirmed.

W. Wills, for respondent.

CAVE, J. This case was argued before my brother Charles and myself a short time ago, and I have now to deliver the judgment of the court. The question raised in this case is whether a person who has hired a horse and carriage for a year is responsible to the owner of the horse and carriage for damage done to them by the negligent driving of the hirer's servant, where the servant, instead of taking the horse and carriage to his master's stables in the ordinary course of his duty, for his own purposes and to serve a friend, takes the horse and carriage in a contrary direction, and they are injured in consequence of his negligent driving while thus engaged contrary to his duty. The County Court judge held that the hirer was not responsible, on the authority of Story v. Ashton, reported in L. R., 4 Q. B. 476, it which it was held under similar circumstances, that the master was not liable to a person who had been run over and injured by the servant, on the ground that the servant, when when he ran over the plaintiff, was not acting in the course of his employment as servant. Mr. Wills, who argued for the respondent in this case, contended that the ground of the hirer's liability to the owner of the horse and carriage is the same as the ground of his liability to a person who is injured by the negligent act of his servant, but we are unable to agree with this contention. Where a wayfarer is injured by the negligence of a person who is driving along a highway, he has a right of action founded on tort against the driver, and if the driver is a servant in the course of his employment, the person injured has also a remedy against the master on the principle respondeat superior; but when a man hires a horse and carriage, there is a implied obligation on his part arising out of the contract to return them in the condition in which he received them, fair wear and tear and certain accidents excepted, and if they are injured by the negli gence of the servant while driving in the course of his employment, the latter's remedy is by action on the contract, and can be enforced against the hirer only, and not against his servant. That there is a difference between the hirer's liability to the owner and his liability to a wayfarer injured by the negligence of the person driving the carriage, is plain from the following instances: A. hires a horse and carriage for a year, and lends it for a day to B., who negligently drives over and injures C., at the same time injuring the horse and carriage. In that case, A. is not responsible to C., because B. is not his servant, and cousequently the maxim respondeat superior does not apply, but he is responsible to the owner of the horse and carriage for the damage done by B.'s negligence; so, again, if two partners hire a horse and cart for the pur. poses of their business, and one of them, while driving gently runs against and injures a person passing along the cart in the usual course of their business, neglithe highway, and at the same time injures the horse and cart, the partner driving alone is responsible to the person injured, but both are responsible to the owner of the horse and cart they had hired. The responsibility of the hirer to the person from whom he hires is a responsibility arising out of contract; his responsibility to a person run over by the negligent driving of the horse and cart arises out of tort. Is there any authority for saying the responsi bility of the hirer to take reasonable care of the goods hired does not extend to all injuries caused by the negligence of his servant to whom he has intrusted the care of them? Mr. Wills cited the cases of FuniMass. 479, in which it was held that the hirer was not cane v. Small, 1 Esp. 313, and Foster v. Essex Bank, 17 responsible where his servant had stolen the goods

hired. But in those cases there was an act of the servant which was tortious as against the lettor of the

goods, and which gave him a right of action against the servant for a conversion of the goods. But in this case the act of the servant was not tortious as against the owner of the horse and carriage. If the horse and carriage had got back safely to the stable, the owner would have had no right of action against the servant, for although the servant, as against his master, would have committed a breach of the duty arising out of the relationship of master and servant, he would not have been guilty of any tortious act as against the owner. Such an act would certainly not have amounted to a conversion of the horse and carriage by the servant, nor as against the owner would it have amounted to a trespass, seeing that the person who was entitled to the possession of the horse and carriage during the period occupied by the journey was the hirer, and not the

Men like Chasseneuz, who were strong supporters of ecclesiastical jurisdiction, held that every thing that exists was created for man's use and benefit; that we should not misinterpret God's providence by tolerating any creatures that rendered themselves in any way barmful to man, and he wound up his learned thesis by saying: "Religion permits snares to be laid for birds and other animals, and the best of all nets is the lightning of anathematization."

So it came to pass that the bishops and other dignitaries of the Church, acting, as they believed, under the sacred sanction of the Scriptures, solemnly met many times in the year, but most frequently in harvest season, and then and there deliberately tried all offenders of the animal kingdom against which complaints had been made. In the civil courts there was hardly a week in any large town in France that one or more domestic animals were not brought before the bar to answer through counsel to the charges preferred against them. The same practice was adopted for a time in the English courts. But the most interesting part of it all is the methods adopted in trying the animals.

When locusts, rats, field-mice or any other creatures harassed the peasantry, they first prayed that God would rid them of the nuisance; but if their prayers

were unanswered, they at once came to the nearest town where there was a bishop, laid the case before him, aud besought him to take action in the matter. The bishop, when satisfied that their representations were correct, at once appointed a number of experts to go out and examine the ravaged districts. If these experts reported that crops or other property had been seriously injured by these creatures, then the bishop at once instituted proceedings against them. His first step was to appoint an advocate, who was usually an ecclesiastic well versed in canon law, his duty being to defend the animal. A regular legal document was next made out, calling upon him to show cause why the defendants should not be summoned, and if he could not show good cause to the court, the insect, animal or whatever it was was then cited three times to appear before the tribunal. If they did not appear after the third citation, judgment was given against them by default.

to the compromise on the 20th of June, 1587, and the peasants prayed the ecclesiastical court that in default of the defendants (the beetles) accepting the offers that had been made them, the judge would order the vineyards of the inhabitants to be respected under certain penalties. The advocate for the animals demanded time for deliberation, and the trial being resumed in September following, he declared that he could not accept, in the cause of his clients, the offer that had been made to them, as the locality in question was barren, and did not produce any thing. This was denied on the other side, and arbitrators were named to decide the question.

Dulaire, in his "History of Paris," mentions a legal process set forth in 1690 against the caterpillars that laid waste the cultivated portion of the little town of Pont-du-Chateau, in Auvergne. A vicar named Burin excommunicated these caterpillars, and sent an account of the proceedings to the justice of the district, who laid an interdict upon these insects, and solemnly relegated them to an uncultivated spot which was duly

No district could commence a legal process of this kind unless all its arrears of tithes were paid to the Church, and this circumstance gave rise to the wellknown French legal maxim, "The first step toward getting rid of locusts is the payment of tithes."

The court then issued an admonition, warning the animals to leave the district within a certain time, under penalty of adjuration; and if they did not disap-designated. pear on or before the period appointed, the exorcism was with all due solemnity pronounced. The court however, by every available reason for delay, evaded the last extremity of pronouncing the exorcism, probably lest the animals should neglect to pay attention to it. Indeed it is actually recorded that in some instances the noxious animal did not "wither off the face of the earth" after being anathematized. This the Church lawyers attributed neither to the injustice of the sentence nor want of power of the court, but to the malevolent antagonism of Satan, who, as in the case of Job, is at times permitted to tempt and annoy mankind.

The summonses were served by an officer of the court reading them at the places which the animals frequented. These citations were written out with all technical formality, and that there might be no mistake, contained a description of the animals. Thus, in a process against rats in the diocese of Autun, the defendants were described as dirty animals in the form of rats, a grayish color, living in holes. This trial is famous in the annals of French law, for it was then that Chasseneuz, the famous advocate, won his first laurels. The rats not appearing on the first citation, Chasseneuz, their counsel, argued that the summons was of too local and individual a character; that as all the rats in the diocese were interested, all the rats should be summoned. This plea being admitted, the curate of every parish in the diocese was instructed to summon every rat for a future day. The day arriving, but not any rats, Chasseneuz said, that as all his clients were summoned, including young and old, sick and

There is to be found in the "Mémoires de la Société Royale Académique de Savoie" a curious account of proceedings instituted in 1587 against a beetle that committed great destruction in the vineyards of St. Julien. Forty-two years before, the same beetle had appeared in millions, devouring every thing that was green in the march; so the inhabitauts applied to the bishop to take proceedings against them. They were cited to appear, and the usual formalities were proceeded with; but before judgment was pronounced the beetles, strange to say, disappeared. The paysans believed that the insects were in dread of being anathe-healthy, great preparations had to be made, and cermatized, and for this reason had left the country. High masses were chanted and Te Deums sung in thanks for the deliverance, and a delegation waited on the archbishop through whose action the pests had gone away. However the descendants of the frightened beetles forty-two years later, as I have said, came back and overran the meadows and vineyards, spreading desolation every where.

The inhabitants, all of whom knew about the former incursion, immediately made a complaint to the vicar-general of the Bishop of Maurienne, who, without any delay, appointed a judge to try the case and a lawyer to defend the insects. He also issued a pastoral calling on the peasants to form public processions and pray that they might get rid of the invasion. But the lawyer chosen by the vicar-general was very loyal to his clients, and moreover he was a man of great legal learning; so he compelled the prosecution to provide a piece of land outside of the vineyards and meadows, where the insects could live without doing harm to the vines, grasses or grain. It was stipulated that this piece of land was to be of a definite area, and contain trees, herbs and whatever else was needed to supply food to the beetles. But the inhabitants reserved the right In time of war (et parce que ce lieu est une seure rétraite en temps de guerre) to go upon the land set apart for the use of the insects. The inhabitants, with the sanction of the vicar-general, agreed

tain arrangements carried into effect, and he therefore begged for an extension of time. This also being granted, another day was appointed, and again, no rats appearing, Chasseneuz objected to the legality of the summons under certain circumstances. A summons from that court, he argued, implied full protection to the parties summoned, both ou their way to it and on their return home; but his clients, the rats, though most anxious to appear in obedience to the court, did not dare to stir out of their holes on account of the number of evil-disposed cats kept by the plaintiffs. "Let the latter," he continued, "enter into bonds, under heavy pecuniary penalties, that their cats shall not molest my clients, and the summons will be at once obeyed." The court acknowledged the validity of this plea; but the plaintiffs declining to be bound over for the good behavior of their cats, the period for the rats' attendance was adjourned sine die, and thus Chasseneuz gained his cause.

Leeches, doves and other creatures were also tried, but in some cases feelings ran so strong that the defendants were said not to have received fair play. On one occasion a lawyer who had been six months dead was appointed to defend a host of tormenting insects known as chafers, and as the insects proved contumacious by refusing to appear in court, they were excom. municated and anathematized.

The civil courts assumed jurisdiction over domestic

animals. When a complaint was made against a pig, a cow, or a horse, and the court was satisfied with the deposition, the accused animal was committed to prison, at the place of criminal justice where the trial was to take place. After hearing the witnesses, and taking down the depositions against the delinquent, and the crime of homicide being proved, the judge condemned the animal to be strangled, and hung by the two back legs to an oak tree or gibbet, according to the custom of the country.

The animals were led by a halter, one menial court official holding the cord; another walked behind and goaded the prisoner onward. Of all animals that were brought before the bar the pig was considered the most unruly, for while the learned counsel on both sides discussed, and the judge expounded, the hog frequently grunted and screamed and tried to poke his nose through the bars of the prisoner's box. Conduct of this kind was sometimes held to be disrespectful, and told against the defendant. But an ox, a cow or a bull, an ass or a dog that remained quiet received a certain measure of consideration for their demeanor. While the animals remained in prison, before, during or after trial, they were entitled to the same amount of money each day for food as was provided for a human being. They were treated, in fact, exactly as human offenders. Let me cite a few interesting examples of domestic animals.

In 1497 a sow was condemned to be beaten to death for having eaten the chin of a child belonging to the village of Charonne. The sentence declared that the flesh of the sow should be thrown to the dogs, and that the owner of the animal and his wife should make a

pilgrimage to Notre Dame de Pontoise, where, being the day of Pentecost, they should cry "Mercy," after which they were to bring back a certificate that this had been complied with.

The execution of these animals was public and solemn; sometimes they were clothed like men. In 1386 the judge of Falaise condemned a sow to be mutilated in the leg and head, and afterward to be hung, for having torn the face and arm, and then killing a child. This sow was executed in the public square, clothed in a man's dress. The execution cost ten sous, six deniers tournois, besides a new glove for the executioner.

The charter of Eléonore, composed in 1395, and called carta di logu of Sardinia, states that the oxen and cows, wild or domestic, might be killed legally when they were taken in the commission of a crime. Asses guilty of the same conduct were treated more humanely; they were placed in the same category as thieves. The first time that one of these animals was found in a cultivated field which did not belong to his master, one of his ears was cut off. A repetition of the offense entailed the loss of the other ear. If caught a third time in the prohibited place, the ass was not hung like other large animals, but was confiscated to the prince of the country.

A pig once having destroyed a child, the image of St. Pancre was brought out, and the child, it is related, was restored to life. The pig was cited to appear in the bishop's court at Lausanne. It was found guilty of willful murder and sentenced to death. Ruchat says that "the executioner was a pork-butcher."

By turning to a list of the animals cited to appear before the courts from 1120 to 1744 may be mentioned the following: Pigs, horses, cows, bulls, oxen, cantharides, rats, leeches, domestic fowl, moles, house-mice, field-mice, chafers, snails, weevils, grasshoppers, locusts, dogs, asses, caterpillars, goats, sheep, mules, pigeons, other birds and worms.

Just one more curious incident in this strange history. In the year 1403 Simon de Baudemont, Lieutenant at Meulan, Jhean, Lord of Maintenon, the Bailiff

of Mantes and Meulan, signed an attestation making known the expenses which had been incurred in order to execute justice on a sow that had eaten a child: "For expenses within the jail the charge was six sols. Item, to the executioner who came from Paris to Meulan, to put the sentence in execution by the command of our Lord the Bailiff, and of the King's Attorney, fifty-four sols. Item, for carriage that conveyed her to the execution, six sols. Item, for ropes to tie and haul her up, two sols, eight deniers. Item, for gloves, twelve deniers; amounting in the whole to sixty-nine sols, eight deniers." The item for gloves has puzzled some persons. Southey suggests that they were insisted upon by the executioner as a point of honor, that no one might reproach him with having soiled his hands by performing on such a subject.

As late as the end of the seventeenth century, vast flocks of pigeons devastated the grain fields in French Canada; they were cited to appear, had counsel assigned them, and were anathematized. Of course, the pigeons are migratory birds, and they set out on the southern march shortly after being cursed.

There are several cases similar to all the foregoing related in the legal records of Great Britain.-Edmund Collins in "Our Animal Friends."

NEW YORK COURT OF APPEALS AB-
STRACTS.

CEMETERIES MUNICIPAL CORPORATIONS - ORDINANCES-TAXATION-EXEMPTION.- (1) Laws of 1852, chapter 280; 1854, chapter 238; 1871, chapter 164, and 1889, chapter 389, which forbid rural cemeteries to acquire land for cemetery purposes in certain counties without first obtaining the consent of the supervisors of the county, apply only to the counties named therein. 14 N. Y. Supp. 804, approved. (2) Under Laws of 1880, chapter 14, section 40, which authorizes the common council of the city of Rochester to pass ordinances regulating the burial of the dead, the council may by ordinance forbid burials in a tract of ground in the city which has been bought by a cemetery association for use as a cemetery, while a prior ordinance authorizing the burial of the dead in the association's cemetery was in force. 14 N. Y. Supp. 804, approved. (3) Under Laws of 1847, chapter 133, section 10, which exempts from taxation "the cemetery lands and property" of any cemetery association organized in pursuance of said act, land within a city, owned by a cemetery association, and which cannot be used by it for any other than cemetery purposes, is exempt, although by ordinance of the city no burials can be made in said lands. 14 N. Y. Supp. 551, 804, reversed. Dec. 1, 1891. People, ex rel. Oak Hill Cemetery A'ssn, v. Pratt. Opinion by Earl, J.

DAMAGES-NOMINAL-BREACH OF CONTRACT.-In an action to foreclose a mortgage defendant set up as a counter-claim that at the time plaintiff conveyed the property to him plaintiff executed a covenant, agreeing within thirty days either to have a railroad company, which had accidentally and without any claim of right encroached upon and occupied the land with its tracks, take a lease thereof, with a proviso that it should remove its tracks on thirty days' notice, or else have the tracks removed altogether; and further agreeing to indemnify and save harmless the defendant from all loss arising from the encroachment. The fulfillment of plaintiff's agreement was delayed beyond the thirty days, but under such circumstances as plainly indicated a waiver of time as of the essence of the contract. During the delay, and before the tracks were removed, defendant made a formal contract of sale of the property to a friend, at a large increase in

price. The friend then refused to take the property on the sole ground of the encroachment of the railroad. Shortly thereafter the tracks were removed. Defendant did not attempt to enforce his contract of sale, but offered to assign it to plaintiff. Held, that as the presence of the tracks would not have prevented the enforcement of defendant's contract of sale, he was entitled to nothing more than nominal damages for breach of plaintiff's agreement. It is obvious that the contract was one of indemnity merely, so far, at least, as loss of profits was involved. The covenant as to that was explicitly to indemnify and save harmless. The burden was thus put upon the defendant of establishing such a loss as the natural and legitimate consequence of the plaintiff's breach. But the alleged

conveyed to defendant, the plaintiff's evidence showed that before the execution of plaintiff's deed her husband had agreed to pay defendant $2,000, such payment to be secured by her deed, and that the said debt had afterward been extinguished. Held, that it was reversible error to refuse to allow defendant to show that plaintiff gave her deed, not as security for the debt of her husband, but in absolute payment of it. Sprague v. Hosmer, 82 N. Y. 466; Lowell Manuf'g Co. v. Safeguard Fire Ins. Co., 88 id. 591. Dec. 1, 1891. Blazy v. McLean. Opinion by Finch, J. 12 N. Y. Supp. 762, reversed.

LANDLORD AND TENANT-RENT-LIEN-CHATTEL MORTGAGE.-(1) Plaintiff let a farm to defendant with the cows thereou, for one year from April 1, 1887, at an annual rent, payable in the fall, when the butter made on the place was sold, but such butter was to belong to plaintiff until the rent was paid. Defendant was to have all the straw and half the grain, but plaintiff to have title to said grain until the rent was paid." Held, that plaintiff had no lien for the rent on the hay raised on the farm. The lease does not vest the title to the hay produced on the farm in the plaintiff as security for the rent, or for any other purpose, and the law, in the absence of an agreement to that effect, vests it in the lessee. The agreement of the latter to maintain the cows was an independent stipulation, which he was bound to perform; and the sale of the hay did not disable him from performing, however unlikely performance might be after selling the hay, in view of the lessee's insolvency. But a sale of the hay by the tenant was not in violation of any contract with or of any legal right of the lessor. (2) Though plaintiff has a claim for rent, he cannot, before judg

gage given by his tenant on hay grown on plaintiff's land, as in fraud of creditors. Sullivan v. Miller, 106 N. Y. 635. Dec. 1, 1891. Briggs v. Austin. Opinion per Cariam. 14 N. Y. Supp. 944, affirmed.

loss from the failure of the Borger contract was ineffectual for two reasons: Bauer might have enforced that contract. An accidental trespass, conceded to have been without title and without right, upon a part of the lands agreed to be conveyed, furnish no justification for Borger's refusal, and would have been no defense to an action for specific performance. If he had taken from Bauer a full covenant deed, no one of the covenants would have been broken, and no action upon them could have been maintained. The vendor had a seizin in fee, and full right to convey. The covenaut of warranty and for quiet enjoyment is not broken by a bare trespass, not amounting to an eviction; and that against incumbrances implies for its basis some outstanding right or claim of right. Bauer's deed to Borger, if accepted, would have given the latter every thing which the contract required, and there was nothing in the accidental and admitted trespass which could have induced a court of equity to relieve him from his purchase. All this, conceded by appellant, for the purposes of the argument, to be a possiblement, maintain an action to set aside a chattel morttruth, is met by the answer that Bauer offered to assign his contract to plaintiff, to enable the latter to enforce it, who declined the offer. I do not think that is a sufficient answer. No such duty devolved or could be put upon the plaintiff. The transaction with Borger was one for which the plaintiff was in no manner responsible, and in which he had no interest except that it should be an honest one, and honestly conducted and enforced. The duty of enforcing it, or showing that enforcement was impossible, rested upon Bauer. He was bound fairly to prevent or lessen his loss before calling for his indemnity. If he desired to make the plaintiff responsible for the results of the litigation, he could easily have offered to let him conduct it, or aid in its progress; but an assignment of the contract the plaintiff was in no manner bound to accept. The damages therefore accrued from the fault and bad faith of the defendant. He permitted the breach of his contract with Borger, and abandoned it without necessity and without reason. It is further to be remembered that if Bauer had sued Borger to compel a specific performance the former could have removed, and was perfectly able to have ended, the encroachment, as it was in fact ended, long before his action could have come to trial, and a perfect and flawless title then would have commanded the relief of performance. Jenkins v. Fahey, 73 N. Y. 355. And this conduct of the defendant, who abandoned his legal and equitable right in order to make a loss, and omitted an honest effort to protect not only himself but his indemnitor, coupled with the other facts and circumstances of the case, fully authorized the courts below to determine as a fact that the Borger contract and the alleged loss of profit were alike fictitious and collusive, and not actual and honest. Dec. 1, 1891. Horton v. Bauer. Opinion by Finch, J. 13 N. Y. Supp. 773, affirmed.

DEED AS MORTGAGE-EVIDENCE.-In an action to compel the reconveyance of land which plaintiff had

RAILROADS-ELEVATED DAMAGES TO ABUTTER RIGHTS OF HEIRS- OBJECTIONS TO EVIDENCE. (1) The owner of abutting land may recover damages for injury thereto caused by the operation of an elevated railroad along the street while the land was in the actual possession of tenants under lease from such owner. Kernochan v. Railroad, 128 N. Y. —, followed. Tallman v. Railroad Co., 121 id. 119-124; Drucker v. Railroad Co., 106 id. 157; Pond v. Railroad Co., 112 id. 186; Lawrence v. Railroad Co., 126 id. 483; Hussner v. Railroad Co., 114 id. 433. (2) The executors and trustees of a deceased abutter do not occupy the relation of purchasers, but succeed, in behalf of the beneficiaries, to the rights of the abutter, and may recover for damages to the rental value of the land, caused by the operation of such railroad. (3) A question put to an expert witness, as to what, in his opinion, was the diminution in the rental value of the land caused by the structure and by the passing of trains, was objected to as "improper, irrelevant and immaterial, as assuming that the property had been injured in that way, and as requiring the witness to separate such injury from that due to other causes." Held, insufficient to raise the objection that the question sought to substitute the opinion of the witness for the judgment of the jury. Dec. 1, 1891. Mortimer v. Metropolitan El. R. Co. Opinion by O'Brien, J. 8 N. Y. Supp. 536, and 14 id. 952, affirmed.

WATER AND WATER-COURSE-RIPARIAN RIGHTSLAND UNDER WATER-CONVEYANCES-RESERVATIONS. —(1) Plaintiff obtained a patent from the State to certain land under water in front of his upland. Defendant contended that a portion thereof was embraced in a prior patent under which he claimed, and such