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are insufficient to pay its liabilities, and the amount of said liabilities is more than $470,000 in excess of the par value of said assets.

The findings covered the material issues made by the pleadings, and upon the record we cannot hold that the evidence was insufficient to justify the findings made, or that the court below erred in refusing to make the numerous findings requested by the appellants. From the facts so found the court concluded as matter of law that the defendants J. A. Jessom, McGinn, and Wood are liable to the plaintiff for the amount of the dividend paid to and received by them, respectively, and gave judgment against them accordingly, and in favor of the other defendants.

For the reasons set forth in the opinion filed in the other suit above referred to, we think the judgment here appealed from right, and it is accordingly affirmed, with the provision that, upon the payment of the joint and several judgment entered in the aforesaid suit against the present appellants as directors, the judgment here affirmed also becomes thereby satisfied and extinguished.


(Circuit Court of Appeals, Ninth Circuit. October 15, 1917.)

No. 2976.

1. CRIMINAL LAW 656(1)—TRIAL-Conduct of Judge.

In a prosecution for adultery, remarks by the trial judge to accused's alleged paramour, who was called as a witness, that no one would hurt her, that she should not cry, and should speak so she could be heard, did not show prejudice against accused, though the trial judge adressed the alleged paramour as little girl, and advised her of her rights against self-incrimination.


Evidence held sufficient to sustain a conviction of adultery. 3. ADULTERY


Where, in a prosecution for adultery, there was evidence that at the time of the offense accused was married to one other than his alleged paramour, variance between the allegation and evidence, as to the name of accused's wife, was immaterial.

Appeal from the District Court of the United States for the Territory of Hawaii; Horace W. Vaughan, Judge.

Wong Goon Let was convicted of crime, and he appeals. Affirmed. Bitting & Ozawa, of Honolulu, T. H., for appellant.

S. C. Huber, U. S. Atty., and James J. Banks, Asst. U. S. Atty., both of Honolulu, T. H., and John W. Preston, U. S. Atty., and Casper A. Ornbaun, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District Judge.

HUNT, Circuit Judge. Wong Goon Let, alleged to be married to Wuai Kam Let, was convicted in Hawaii of adultery with one Kum

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Sing Hee, and asks reversal upon the grounds of the prejudice of the judge who presided at the trial, insufficiency of the evidence to warrant conviction, and variance between the allegations of the indictment and proof.

[1] Prejudice of the judge is based upon the following incidents: Upon the trial, the woman, Kum Sing Hee, who gave her age as 21, was called to testify. The record does not disclose that the woman was crying, but states that the court told her that no one was going to hurt her, and that she must not cry. "Now, little girl," said the court, "speak loudly, so that these gentlemen here can understand what you have to say." The judge also carefully explained to her that she could not be compelled to give evidence of her own wrongdoing, if she were guilty of any wrongdoing, and that she could claim the right to refuse to answer questions which would incriminate her. The argument of the defendant is that "the attitude of the judge and the manner of addressing the Chinese woman in the presence of the jury” prejudiced the jury against the defendant. But, in the absence of some substantial showing, it is not for this court to infer that the trial judge assumed a manner whereby the defendant's rights were disregarded. If the witness was nervous or timid, it was wholly proper for the judge to assure her that no one wished to harm her, and that she must speak so that the jurors could hear her. We cannot see that by addressing her as "little girl" the court could have prejudiced the jury against the defendant. No possible intimation of a belief in the guilt of the defendant was conveyed by the use of the language, and there is nothing to justify any opinion other than that the judge was merely trying to have the witness appreciate that she need feel no fear while in the court.

[2] The evidence in support of the verdict was very strong. It showed that the defendant and the woman were alone at night; that defendant took the woman to a house some distance away from the point where he met her; that defendant left his automobile with the lights turned off and under some trees; that the two remained in the house some time; that the officers found them together in a room with the door locked; that the lights were dimmed; that when discovered they were in such conditions of dress and in such positions in the room as to indicate adulterous relations.

[3] Variance between the allegations of the indictment and the evidence is urged, because the indictment alleged that defendant was married to Wuai Kam Let, while the proof showed that the wife's name was Foo Kwai Kim. But as there was evidence that at the time of the offense charged the defendant was lawfully married to a woman other than the alleged paramour, the variance between the name of his wife as pleaded in the indictment and as shown on the trial was immaterial. Bodkins v. State of Texas, 75 Tex. Cr. R. 499, 172 S. W. 216; Simmons v. State of Texas (Tex. Cr. App.) 184 S. W. 226; Corpus Juris, vol. 2, p. 20; Hall v. United States, 168 U. S. 633, 18 Sup. Ct. 237, 42 L. Ed. 607.

No ground for reversal being shown, the judgment is affirmed.


(Circuit Court of Appeals, Seventh Circuit. August 10, 1917.)

No. 2408.


The Henderson patent, No. 959.008, for scaffold-supporting means, claims 1 and 3, held valid, and infringed by the use of the scaffold hoist of the Whitney patent, No. 998,270, but not infringed by the device of the Whitney patent, No. 1,114,832, in which there is no hoisting drum, as in the Henderson device.

Appeal from the District Court of the United States for the Eastern District of Wisconsin.

Suit in equity by the New York Scaffolding Company against the Chain Belt Company and Egbert Whitney. Decree for complainant, and defendants appeal. Reversed.

Appeal from decree awarding injunction and accounting for infringement by appellants of claims 1 and 3 of the United States patent to Henderson, No. 959,008, May 24, 1910, for scaffold-supporting means. The claims are as follows:

"1. A scaffold consisting in the combination of crossbeams, floor pieces extending between such beams, and a hoisting device associated with each end of each beam, each hoisting device consisting of a continuous U-shaped metal bar extending around the under side of and upward from the associated beam, and a hoisting drum rotatably supported by the side members of such bar."

"3. A scaffold consisting of a plurality of U-shaped bars arranged in pairs, a crossbeam laid in and extending between each pair of such U-shaped bars, a floor laid upon said crossbeam, a drum rotatably supported between the upwardly extending side members of each of said U-shaped bars, and means for controlling the rotation of said drum."

Figures 1 and 5 of the patent drawings are as follows:

[merged small][merged small][graphic][subsumed]

Fig. 1 shows a typical scaffold 5 in this art, suspended by ropes or cables 3, which hang from outriggers 2 attached to the building 1. The hoisting machines are located on the platform and are manually operated to raise and lower the platform. Fig. 5 shows Henderson's hoisting machine, which, in association with the other enumerated elements, constitutes the combination of the claims in issue. The frame 6 extends downward, and is of

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U-shape, adapted at 7 to receive, surround and support the ends of the crosspieces or putlogs laid therein, which in turn support the platform boards 8, laid upon them. The upright sides 6 of the frame hold the revolving drum 10 to which the cable is fastened, and by means of a lever and handle 15 the drum is revolved by the operator and the scaffold platform thereby raised or lowered.

The defenses were noninfringement and invalidity of the patent through anticipation, prior use, and want of invention or patentability.

Robert H. Parkinson and Wallace R. Lane, both of Chicago, Ill., for appellants.

Paul Bakewell, of St. Louis, Mo., and C. P. Goepel, of New York City, for appellee.

Before BAKER, MACK, and ALSCHULER, Circuit Judges.

ALSCHULER, Circuit Judge (after stating the facts as above). 1. The claims are for a combination, no element of which possesses novelty, and the combination itself shows but slight advance over the prior art. Patent No. 854,959 (1907) to Murray presents all the elements of the Henderson combination, except the U-shaped bar forming the bottom of the frame in which the crossbeams or putlogs are laid. In Murray's frames the side bars extend below the floor, and are bolted or riveted to the angle iron putlogs there shown. The frame has a revolvable drum extending between the sides of the frame, with handle and ratchet for operating the drum on which the cable is wound. In this construction the frame holding the drum is necessarily set at right angles to the building. Patent to Bowyer (1888) and to Sladek (1898) show painters' scaffolds having a frame U-shaped at the bottom, and supporting a hoisting drum between the upright sides of the frame; the lower U supporting directly the scaffold boards laid in them, without the intervention of putlogs. The evidence fairly establishes that in 1908, prior to Henderson's invention date, appellee, who owned the Murray and other patents for scaffolds, and had built up a large business in the supplying of scaffolds for the erection of high buildings, had furnished for the erection of the Blackstone Hotel at Chicago, scaffolds in which there was the U-shaped bar frame similar to that of Henderson, but with putlogs composed of two angle irons bolted together, the U-frame extending down between them, and the connecting bolts resting on the top of the under web of the U, the floor boards of the scaffold being, as in Henderson, laid parallel to the building. This employment of the U-bar did not change the position of Murray's machines, which, as shown in his patent drawings, was at right angles to the building. Henderson's contrivance having the ends. of the putlogs laid directly in the U-frames at 7, necessitates the setting of the frames parallel or broadside with the building.

The evidence of prior art does not show a complete scaffold wherein, as in Henderson, the pairs of frames are so disposed that putlogs are laid directly into the bottoms of the frames without the intervention of bolts or equivalent contrivances. The special advantages claimed for the Henderson combination over others were testified to

be the saving of space in the width of the platform, greater security, and greater facility in the installation and removal of the scaffolding. All these, save the first, are quite dubious. There is in these drum machines necessarily considerable width of frame to accommodate the hoisting drum, which must be wide enough to hold 100 feet of cable. The frames and drums when set on the scaffold in pairs-two for each putlog-and at right angles to the building, might appreciably obstruct the width of the scaffold, and in so far as Henderson shows a combination wherein these drums might extend broadside of the building, he made advance to the extent that there was thereby effected substantial saving of room on the platform, although neither in the specifications nor the claims is mention made of the position of the drums with reference to the building wall.

We do not find in the prior art, or in the prior use, any operative scaffold of this general nature which seems to embody all of the elements present in Henderson's combination. His advance, however slight, is not so wholly wanting in invention or novelty as to justify a finding contrary to the presumptive validity of the grant to him, and we therefore conclude that his claims in issue here are valid. The validity of these same claims was recently in issue in a suit in Nebraska wherein appellee herein was plaintiff and appellant Whitney defendant. The District Court found for the defendant, but on appeal the Circuit Court of Appeals for the Eighth Circuit held the claims valid (New York Scaffolding Co. v. Whitney, 224 Fed. 452, 140 C. C. A. 138), although the District Court for the Western District of Pennsylvania, in a suit by appellee herein upon the same claims reached an opposite conclusion, holding the claims invalid as not disclosing invention (New York Scaffolding Co. v. Liebel-Binney Construction Co., 243 Fed. 577, C. C. A., October term, 1914), the decree therein having been recently affirmed by the Court of Appeals for the Third Circuit.

2. The infringement alleged is in the manufacture and sale of two articles known as the Whitney scaffold hoist and the Little Wonder machine, made pursuant to patents to Whitney, numbered respectively 998,270 (1911) and 1,114,832 (1914). These patents are for devices for hoisting scaffolds, and the suit here was brought against appellant Chain Belt Company, on the claim that it manufactured the hoisting mechanism of these two patents, and knowingly sold or delivered them to users who would so apply and combine them with putlogs and scaffold floors as thereby to present all the elements of the combination of Henderson's claims 1 and 3, whereby in such manufacture and sale there was contributory infringement by the Chain Belt Company. Appellant Whitney intervened, alleging that all the machines made. by the Chain Belt Company were made for him, that they had ceased making the Whitney scaffold hoist, that the Little Wonder did not infringe, and he asked that appellee be enjoined from prosecuting various suits it had instituted against users of the Little Wonder.

Upon the question of infringement we will consider first the Whitney scaffold hoist. This shows a hoisting drum revolubly mounted in a frame which has a straight rod or bar bolted to the lower ends

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