Ex.] Ex parte WARD; re THE NORTH Staffordshire Steel, IRON, AND COAL COMPANY. [Ex. to be struck off the register.] The applicant can- number of necessary preliminary expenses. Who is not say here that his name was improperly placed to be liable for them?] I say the directors were on the register, but only that at the time when the not the agents of ward to incur any debts except call was made the company had no right to make it. in a company whose capital was 200,000l. or under a The case of The Pyrographic Ornamental Wood Com- resolution in accordance with the 9th article. pany v. Brown, 2 H. & C. 63, decided that a person Besides, the present is a question between the comwho has accepted shares in a company is a share-pany and applicant; the removal of his name would holder under the Companies Act 1862, although he not effect his liability to a creditor if any. He citedaccepted the shares on the faith that a certain Re The Russian (Vyksounsky) Iron Works Company amount of capital would be subscribed for, and only (Limited), ex parte Stewart, 35, L. J. 738 Ch.; a small, insignificant, and insufficient portion 14 L. T. Rep. N. S. 817. thereof was subscribed. [KELLY, C. B.-What has that case to do with the question whether the statutory power applies to the present case?] It shows that the old law on the subject does not now apply; for under the Act the company exists and there may be shareholders, though the contemplated amount of nominal capital has not been subscribed for. If the court decides in favour of the applicant, it will amount to a decision that there is no legal register at all. The applicant has paid two calls, and never inquired whether the resolution had been passed; he has thus enabled the company to continue their operations and incur preliminary expenses. [MARTIN, B.-Your argument would be quite correct if you had shown by affidavit that there were outstanding debts in respect of such expenses, but you have not distinctly stated that to be the case. CHANNELL, B.-The case really depends, as my lord says, upon the words of the 35th section.] Macnamara supported the rule.-I submit that the proposed construction of this section would be a very narrow one indeed. The object of the Legislature was to give the court power to remove the name of anyone who ought not to be on the register. The section contains very wide expressions. It says:-"The court may in any proceeding under this section decide on any question relating to the title of any person who is a party to such proceeding to have his name entered in or omitted from the register; and may in such proceeding decide any question that it may become necessary or expedient to decide for the rectification of the register. Many cases in equity have decided that a court of equity can remove a name when there has been a manifest variation between the articles of association and the business carried on or when there has been a fraudulent misrepresentation. [KELLY, C. B.-You have to make out that the applicant never became a shareholder or ceased to be one.] The ground of the decision of the Exchequer Chamber in the action for calls was, that the defendant had never agreed or assented to being a shareholder in a company having a smaller capital than 200,000l., except under a deliberate expression of the opinion of a meeting of directors that a less amount would suffice. His assent to the allotment of shares to him was a conditional assent. It had just the same effect as an assent on the same express condition as that contained in the 9th article. [KELLY, C. B.Then every shareholder might come the day after incorporation and require to have his name taken off the register. How could the company go on for a single day if they could not for some purposes be considered an existing incorporation? The whole capital is never subscribed for at once.] The case of Fox v. Clifton, 6 Bing. 776, decided under the old law that if the company was attempted to be carried on with less than the stipulated amount of capital a member was absolutely free from responsibility. The object and effect of the 9th article of association here was to put this company in precisely the same situation as they would have been in under the old law. [KELLY, C. B.-You must contend that the directors were bound to pass a resolution immediately; for if they waited but a month, they must in the meantime do various acts and incur a The KELLY, C.B.-I am of opinion that this rule should be discharged. This is an application to strike the name of Mr. Ward off the register of shareholders. The power to remove the name of a person off the register is conferred upon the court by the 35th section of the Companies Act 1862, and we must be careful not to exceed the power given us by the terms of that section. It is therefore necessary to look to the exact language of the Act, to see whether the circumstances of the present case are such as to enable us to do what we are here asked to do. The first case in which power is given to rectify the register, is where the name of any person is, without sufficient cause, entered in or omitted from the register of the members of any company, and the second case is when | default is made or unnecessary delay takes place in entering on the register the fact of any person having ceased to be a member of the company. In either of these cases the person aggrieved may apply to the court, and the court, if satisfied of the justice of the case, has full powers to order the rectification of the register. The first question then which arises, is whether the name of the person on whose behalf this application is made has been entered upon the register without sufficient cause. If he had been induced by fraud, or misrepresentation, or suppression of the truth, to become a shareholder, and his name had therefore been entered on the register, it may be that his name would then have been entered on the register without sufficient cause. Now what are the facts of this case? company was incorporated early in 1864, and the contemplated amount of capital was 200,000l. At the time of his application for shares there must have been a very small number of shareholders, probably only a sufficient number to enable the company to be incorporated under the provisions of the Companies Act 1862. Under these circumstances, he applied for an allotment of twenty shares, and I presume he knew, at least it is not shown that he did not know, that all the capital had not then been subscribed for. No resolution, however, was come to under the 9th article of association for carrying on the business of the company with a smaller amount of capital. It is obvious that in such cases the whole of the nominal capital of the company will not be subscribed for immediately, but only by degrees, and often by slow degrees, after the formation of the company. There is, therefore, nothing in the nature of misrepresentation and fraud so far. Then by omitting to pass any resolution under the 9th article of association, the company have, in fact, declared that they ought. not to carry on the business, or to enter into any undertakings connected with the general purposes for which they were incorporated. It is manifest that it was not intended that the company, unless expressly authorised under the articles of association, should carry on the business of the undertaking, or enter into extensive transactions con nected with that business, when it had failed to induce the public to subscribe for the amount of the capital. But it is impossible to suppose that it was contemplated that the resolution should be passed until a reasonable time had elapsed in order to see [Ex. such resolution has ever been passed. It is distinctly stated that business shall be commenced from the date of that resolution. Thus the company can contract no debts or liabilities connected with that business. It is said, however, that they have powers to contract certain debts in respect of the preliminary expenses of the promotion and formation of the company. If that be so, and there are any such debts, I do not think we ought to accede to the present application. I am inclined to think, however, that we ought to have been distinctly informed whether there were any such debts or no. My Lord, probably, thinks, that if any such could be contracted there are sure to be plenty of them. I should like, however, to have seen an affidavit showing such to be the case, for if there are no | such debts, I should be disposed to aid the applicant. Ex.] Ex parte WARD; Re THE NORTH-STAFFORDSHIRE STEEL, IRON, AND COAL COMPANY. whether the whole capital would be subscribed for or not, whatever that time might be. Therefore, a company ought, under such circumstances, to abstain from entering upon the general business for which they were incorporated until the whole of the capital has been subscribed for, and if they do not, and before the whole capital has been subscribed for, they proceed to incur considerable liabilities, and to carry on the general business of the undertaking, it is competent to any shareholder or creditor to proceed to obtain an injunction against them to prevent their so doing. But to suppose that it was not intended that before a reasonable time had elapsed, in the meantime they should be unable to contract debts to a certain moderate amount, is to suppose an impossibility. It may well be that a certain time— say six months for example-must elapse before an undertaking can be fairly put before the public and become popular. In the mean time the company must get prospectuses printed, insert advertisements, and at all events must have an office and premises in which the directors may meet and their proceedings may be carried on. They must employ clerks, and probably a secretary, and must from time to time, to a certain amount, contract debts. The applicant knowing, as he must know, of this state of things, cannot maintain that, having become a shareholder, and so entitled to the profits of the undertaking, should it succeed, and having allowed his name to be entered upon the register, he is entitled, if the company fails, and be unable to pay the debts it has necessarily contracted, to be relieved of all liability. If he could have his name removed from the register, so could every other shareholder whose name is upon the register. If he had been improperly put on the register, or had ceased to be a shareholder, his name might be taken off. That does not appear to have been the case here. It is not contended that he has ceased to be a shareholder by transfer or forfeiture of his shares. The only question, therefore, is whether he ever became a shareholder, and it is clear that he did. This does not prevent him, as we find from the former decision of this court, confirmed by that of the Exchequer Chamber, from resisting an action for calls; it may well be that a company which is properly constituted in the first instance, but the whole of whose capital has not been subscribed for, may be unable to make calls except for the payment of debts contracted for preliminary expenses, inasmuch as the company is not entitled to exercise its general powers, or to go on with its general business. Between the time of the formation, however, and its dissolution, it is quite evident that it must, to a limited extent, carry on business and incur expenses, and so far this gentleman being a shareholder must be liable to creditors. The ground of this application therefore fails. MARTIN, B.—I think on the whole that this rule must be discharged, though my opinion on the matter is not quite so clear as that of my Lord. I am clear that if the existence of any debt or liability in respect of which the applicant was liable, were plainly shown to us, we ought not to strike his name off the register, for that might be to put an insuperable difficulty in the way of any creditor seeking to take advantage of that liability. The judgment of the Exchequer Chamber has decided that the company can make no calls for the purpose of carrying on their business, and so cannot compel the applicant to pay one farthing for that purpose. The ninth article of association plainly provides that the company shall not commence its business, that is to say, the manufacture of steel and iron, until a certain resolution has been passed, and no CHANNELL, B.-I am of opinion that this rule should be discharged. This is an applications under the 35th section of the Companies Act 1862, and I think the applicant is not entitled under that section to the relief for which he asks. When the court is asked to decide a matter upon motion, and there can therefore be no appeal, it ought to be very clearly satisfied that it is proper to do that which is asked for. It is here assumed that because the Exchequer Chamber decided that the applicant was not liable to pay calls they decided the presen question. To that proposition I cannot assent. Thi question whether we are called upon to interfere for the purpose of taking this gentleman's name off the register is quite a different question from that which the Exchequer Chamber decided. The 35th section of the Companies Act 1862 provides for two events: one, where the person's name has been improperly inserted, the other, where there has been default or delay in removing a person's name who has ceased to be shareholder. Now I cannot see that the applicant's name has been improperly inserted. The argument used would go to show that the company had no right to make a register at all. It may be urged that though the decision was merely a decision in an action for calls that the defendant was not liable, the principle of it shows that there was no membership as between the applicant and the company. I do not so understand it. Then what is there to show that he had ceased to be a member of the company? Reliance was placed upon the large expressions used in the middle of the 35th section with reference to questions of title. I think the legitimate application of those expressions is this: If there be a clear right in certain cases to have a name put on or taken off the register, and there is a suggestion that a question of title is incidentally involved, the court may inquire into such title. That does not affect the present question. only act under the provisions of the 35th section of Rule discharged. EXCHEQUER CHAMBER. Reported by W. GRAHAM, Esq., Barrister-at-Law. ERROR FROM THE COMMON PLEAS. Tuesday, May 12. PAYNTER AND OTHERS v. James. [Ex. CH. the question put to us, which is, whether the plaintiff was bound to deliver the goods before payment.] The question is, what is to be done when the parties come to a dead-lock like this? Suppose there had only been one bale of goods, and the shipowners had it on a crane ready to lower it into the merchant's cart, and the merchant was there with the freight in his hand, who is to take the next step? Both being ready and willing, neither party can sue, and the shipowner must deBy the terms of a charter-party freight was made pay-liver the goods before he can sue for his freight. able" on right delivery of the cargo." In an action Payment "on" delivery makes the delivery a conby the shipowners to recover their freight, the defen-dition precedent to the right to recover freight : dant pleaded that the plaintiff's were not ready and willing to deliver: Charter-party-Payment of freight-Time of-Freight payable "on" right delivery. Held, affirming the judgment of the Court of Common Pleas, that the delivery and payment of freight must be concurrent acts, and that the defendant was not entitled to insist on complete delivery before payment. This was an appeal from a judgment of the Court of Common Pleas, discharging a rule to enter the verdict for the defendant. The case in the court below will be found fully reported 15 L. T. Rep. N. S. 660. The action was brought to recover freight due on a charter-party, by the terms of which freight was to become due and be made as follows: "Onethird to be paid in cash on arrival, and the remainder on right delivery of the cargo, by good and approved bills or cash, deducting the usual interest at charterer's option." On the arrival of the vessel the defendant paid the one-third, and elected to pay the remainder in cash, but refused to pay it till all the cargo was delivered. The case did not go to the jury, but it was agreed that they should be taken to have found that the defendant exercised his option to pay in cash; that the plaintiffs were not ready and willing to deliver without cash, but that they were, on being paid cash, and that they unloaded and rafted the timber ready for delivery. A verdict was thereupon entered for the plaintiffs, and a rule was subsequently obtained to enter a verdict for the defendant pursuant to leave reserved, on the ground that the defendant was under no obligation to pay the residue of the freight before the delivery of the cargo to him, and that the plaintiffs were not ready and willing to deliver the cargo except on prepayment of freight to which they were not entitled. This rule was discharged by the court below, on the ground that on the true construction of the charter-party, the delivery of the cargo and payment of freight were to be concurrent acts, and, therefore, that as the defendant was not ready and willing to pay until he had received the whole cargo, the plaintiffs were entitled to succeed in this action. Against this judgment the defendant now appealed. Watkin Williams (Bowen with him) for the defendant. The question is if the plaintiffs were bound to deliver the cargo before payment of the freight. Freight is to be paid "on" delivery, and until the cargo is delivered the defendant could not calculate the freight, or see that the whole of the cargo was carried to its destination. [KELLY, C. B.-The delivery of the cargo and payment of freight must be concurrent acts.] It is submitted that they cannot be strictly concurrent acts. There must be concurrent readiness and willingnesss, and then the question is, what is to be the next step? If the shipowner does not deliver he cannot sue for freight, but only for damages caused by the defendant not being ready or willing to perform his part of the contract, and that question cannot be raised on the pleadings in this case. [KELLY, C. B.-We can only deal with the case as we find it, and answer (Peeters v. Opie, 2 Wms. Saund. Rep. 346.) [BLACKBURN, J.-That only decided that you cannot sue for work and labour till you have done the work and labour; but here the plaintiff has done all the work, and all that remains to be done is the delivery.] But that is an essential part of the contract. [BRAMWELL, B.-If I sell goods and the defendant won't accept them, cannot I sue for goods bargained and sold?] Yes; but that is because the property has passed, and the only condition precedent is readiness and willingness; but here the right delivery is made a condition, and is an important element in the contract. To make the right of action complete, the plaintiff must aver that the defendant was not ready and willing to accept; but here he was, and the only struggle was as to who should take the first step. Giffard, Q.C. (Michael with him), for the plaintiffs, was not called upon. KELLY, C. B.-There is no difficulty in this case, and ought to be no doubt on the point. Looking at the facts, it appears that, after some altercation between the parties, the plaintiffs discharged the timber, and rafted it, and gave notice to the defendant that they were ready to deliver it on payment of the residue of the freight. On the construction of this charter-party it is clear that the delivery each party ought to have been ready and willing to and payment were to be concurrent acts, and that perform his part of the contract. According to the terms of the charter-party it was necessary that the plaintiff should be ready and willing to deliver on payment, and the defendant ready and willing to pay on delivery; and the question raised on this appeal is whether the plaintiff was bound to deliver first. We are all of opinion that he was not bound to deliver before payment, but that on principle and on authority, and according to good sense, payment and delivery were to be concurrent acts. The argument of Mr. Williams was, that from the nature of the goods the acts could not take place at the same time. The answer to that is, that where there is a will there is a way; and where there is a large quantity of merchandise to be delivered, nothing is more easy, if the parties are sensible, than for one party to tender a cheque for the money, and then, unless the shipowner begins the delivery at once, it could not be said that he was ready and willing to deliver. Here it is expressly found that the plaintiffs were ready and willing to deliver on payment, and we are clearly of opinion that, on the true construction of the charter-party, they ought to have been concurrent acts. BLACKBURN and HANNEN, JJ., and CHANNELL and BRAMWELL, BB. concurred. Div.] BLACKBORNE v. BLACKBORne. Re ORIENTAL COMMERCIAL BANK (LIMITED). DIVORCE.AND MATRIMONIAL CAUSES COURT. Reported by GEORGE CALLAGHAN, Esq, Barrister-at-Law. Friday, May 22. BLACKBORNE v. BLACKBorne. Restitution of conjugal rights-Abandonment of prayer for, at trial-Answer praying for judicial separation on the ground of adultery-Evidence of parties-14 f 15 Vict. c. 99, s. 4. To a petition by the husband for restitution of conjugal rights, the wife answered alleging adultery, and prayed for a judicial separation. At the trial the petitioner desired to abandon the suit, and offered no evidence. The respondent adduced evidence, and pressed for a decree of judicial separation: The Court held that it was still a suit instituted for restitution of conjugal rights, and not a "suit or proceeding instituted in consequence of adultery;" and that the parties were competent witnesses on the question of adultery. Vide Burroughs v. Burroughs. This was the husband's petition for restitution of conjugal rights. The respondent in her answer alleged that he had been guilty of adultery, and prayed for a decree of judicial separation. [V.C. G. mined in respect of their alleged adultery are well known, but it is impossible to suggest a reason why the admission or rejection of their evidence should depend upon the form of the suit. It is conceded that if Mr. Blackborne, who is the petitioner for restitution, had gone on in the ordinary way to-day, had proved the marriage, and claimed his wife's society, the wife might, in conformity with the Act of Parliament and the practice of the court, be placed in the witness-box, and would be a competent witness upon the question of adultery. It is, however, said that a different state of things has arisen because the petitioner does not But the suit remains the same. now mean to pray for restitution of conjugal rights. The court has refused to allow him to withdraw the petition, and the suit is not affected, in my mind, by the circumstance that the petitioner says he does not mean to ask for a decree. I think I have nothing to guide me but the language of the Act of Parliament, and there is nothing in the Act that excludes the parties from being witnesses in this particular class of cases. The exclusion is confined to cases in which the suit is instituted on account of adultery, and it so happens that this has not been instituted on account of adultery. Ballantine, Serjt.-The words of the Act are "suit or proceeding." WILDE, J.O.-Well, this was a proceeding for The cause having came on for trial before Wilde, J. O. and a special jury, on Friday, the restitution of conjugal rights. It is true in her 22nd inst., Ballantine, Serjt. (with him Day and H. James) intimated that the petitioner having become convinced that his wife did not wish to live with him again, had determined to abandon his prayer for restitution. Dr. Spinks, Q.C. (with him Searle and R. J. Shee) for the respondent. The COURT refused to allow the petition to be abandoned without the consent of the respondent, and the cause proceeded, no evidence being offered by the petitioner. The respondent having been called in support of the allegation of adultery contained in her answer, Day objected. The petition for restitution having been abandoned, the only question before the court was the prayer of the respondent for judicial separation on the ground of the husband's adultery. The whole proceedings were therefore based on the husband's adultery, and the evidence of the wife was inadmissible. Burroughs v. Burroughs, 31 L. J. 121, P. & M.; 2 Dr. Spinks submitted that the suit was not a suit instituted on the ground of adultery. It was a suit answer the wife seeks for a particular relief, but that does not prevent it from being originally and still a proceeding for restitution of conjugal rights, because, as the record stands, the husband is entitled to claim restitution if the adultery should not be proved to the satisfaction of the court. With regard to Burroughs v. Burroughs (ubi sup.), what Mr. Searle one, and I shall take a note of the objection, so that says is true, but the question is a very important the matter may be brought before the full court. For the purposes of to-day I shall admit the evi dence. The respondent was then examined. She stated that in a conversation in which she reproached her husband with his conduct, he denied that he had kept a mistress, but admitted that he had committed adultery. The jury found that the petitioner had been guilty of adultery, and The COURT suspended the decree. V.C. GIFFARD'S COURT. Reported by W. H. BENNET, and R. T. BOULT, Esq8., Barristers-at-Law. instituted for restitution, and both petitioner and Re THE ORIENTAL COMMERCIAL BANK (LIMITED); respondent were therefore competent witnesses for all purposes. Searle. For the purposes of to-day, at all events -the examination of the respondent-Burroughs v. Burroughs (ubi sup.) is a case in point. I MAXOUDOFF'S CASE. Winding-up-Part payment—Bill-holder- The holder of three bills, the acceptances of a joint-stock WILDE, J. O.—I should like to decide the question upon ground that was any way reasonable. should like to have a reasonable ground for holding that a husband or wife may be examined on the question of adultery in a suit for restitution of conjugal rights, but that it would be highly improper to admit them as witnesses on the same subject Held, that the holder of the acceptances could only prove where the suit happened to be instituted on the for the difference between the 8501 and the 2000l. ground of adultery. I cannot see the slightest This was a summons adjourned from chambers difference between the two cases. The reasons into court. The Oriental Bank, a joint-stock limited liability company, was being wound-up for and against allowing the parties to be exa LYON . HOME. V.C. G.] voluntarily under a resolution of the company of the 12th July 1866. On the 4th Aug. following an order was made to wind-up the affairs of the company, under supervision of the court. At the date of the winding-up order, one Maxoudoff was the holder of three bills of exchange, the acceptances of the company, for 2000. These acceptances were dated on the 28th March 1866, at three months' date. He received from the drawers, under a compositiondeed made by them, a sum of 8501., being the amount at the rate of 8s. 6d. in the pound on the total amount. On the 27th Dec. 1866 he lodged a claim against the bank with the official liquidator of the company for the whole amount of the acceptances. The official liquidator had obtained a summons in chambers to reduce this claim by deducting the 8501. received on account of the bills by Maxoudoff. A cross summons was also taken out by him to have the whole claim admitted. De Gex, Q. C. and W. W. Karslake, for the company, contended that the claim ought to be reduced by the amount of the cash received by the holder under the composition-deed. The rule in bankruptcy was to admit to proof only the lesser sum. They cited Barned's Banking Company, ex parte Kelloch, 2 Weekly In re Xeres Wine Shipping Company, ib. 76. Peck for the claimant.-That rule did not affect the present case. At the date of the order for winding-up the whole debt was due to the claimant. He had a right to prove for that sum. The drawers or their estate could not be admitted to prove for the whole, which would be a damage to the holder of the acceptances. De Gex in reply. The VICE-CHANCELLOR said that, upon the best consideration he could give the matter, he must hold that the holder of the bills could only prove for the difference between the sum of 850%. received by him on account of the total amount of the acceptances, and that total amount. Putting aside the question as to what might be the rights of the holder and acceptor in an action at law, as to which he had some doubt, the date of the winding-up order was in his opinion immaterial. He did not consider there was any difference in this respect between the known rule and practice in bankruptcy in a winding-up under the supervision of this court. It was admitted that 850% had been received by the claimant and paid by the drawers, and he should hold that such payment was on account and for behoof of the acceptors. It had been said that the drawers could prove against the company in competition with the holder of the bills, and that this, if allowed, would be an inequitable proceeding, but as against the holder of the bills, in his opinion the true view was that when the drawers paid-off any part of the amount of the whole of the acceptances, it was so paid-off on account of the acceptors. He should, therefore, allow the claimant only to prove for the 2000l. the amount of the bills, minus the 8501. received by him. No order as to costs-Costs of the liquidator out of the estate. Solicitors: Uptons, Johnson, and Upton; T. F. Chorley. [V.C. G. April 19, 20, 21, 22, 23, 24, 27, 29, May 1 and 22. LYON v. HOME. Deeds of gift-Voluntary settlement-Undue influence H., a spiritual medium, induced L., an aged widow, to believe that he held communication with the spirit of her deceased husband; and taking advantage of such belief he caused certain manifestations to be made whereby he declared her husband, through him (H.), was communicating with her; that he wished her to make provision for H., and to adopt him as her son, she being childless. Accordingly she, by voluntary gift, transferred to H. sums of bank stock amounting in value to 24,000l. and 6000l. respectively, and by a deed in the nature of a will, settled upon him a contingent reversionary interest in a sum of 30,0002., without any professional advice save that afforded her by the solicitor acting for H.: Held, upon the several principles of public policy and utility applicable to the relationship of principal and agent, guardian and ward, attorney and client, &c., that the gifts and settlement must be set aside as having been procured by the exercise of undue influence. The cases of Hugenen v. Baseley, 14 Ves. 273; Hatch v. Hatch, 9 Ves. 292; Bridgman v. Green, Wilm. 58-64; Dent v. Bennett, 4 Myl. & Cr. 277; s. c. 2 Ves. 627, commented upon and followed. This was a bill filed by the plaintiff, an aged fessing to be a "spiritual medium," and Mr. W. M. Wilwidow lady, against Mr. Daniel Dunglass Home protransfers of stock after-mentioned might be set aside, kinson, a solicitor, praying that certain deeds and on the ground of fraud and undue influence. The allegations of the bill were somewhat remarkable. The plaintiff alleged that under the will of her late husband, Chas. Lyon, Esq., deceased, and otherwise, she was entitled to a considerable fortune in money and securities. That defendant, Daniel Dunglass Home (who had assumed the name of Lyon) was a person calling himself a "spiritual medium," and professed to have the power of evoking the spirits of deceased persons, and putting other persons in communication with them. That plaintiff was greatly attached to her late husband, and having heard that she could be placed in communication with his spirit through the agency of a spiritual medium, she sought and obtained an interview with defendant Home in Oct. 1866, in Sloane-street, where she saw him, and after being some little time in his company was induced by him to believe, and she did believe, that a manifestation of the spirit of her deceased husband was taking place through his instrumentality. She believed that on that occasion the spirit of her deceased husband was in communication with her, and that certain expressions of endearment on the part of his spirit were conveyed through defendant Home to her. That she was much gratified therewith, and (as she had not her cheque-book with her at the time) desired him to call upon her the following day, when she promised to give him 107. He accordingly called, when she was again induced to believe that the spirit of her deceased husband was manifested through the instrumentality of the defendant to her, and therefore she gave defendant 30%, and on the following day when the performances of the previous day were repeated, gave him a further sum of 50%. That by these means and otherwise, defendant Home acquired a great ascendency over the mind of plaintiff, and by the exercise of his alleged spiritual powers, induced her to believe that what he represented to be communications from the spirit of her deceased husband to her were real communications. That plaintiff has no child, and a day or two after the last meeting 66 |