kind of special non est factum, and it ends and so the defendant says it is not his deed.' Such a plea would, I admit, let in evidence of any fraud in the execution of the instrument declared upon: as, if its contents were misread, or a different deed were substituted for that which the party intended to execute. You may perhaps be relieved in equity: but, in a court of law, it has always been my opinion that such a defence is unavailing, when once it is shown that the party knew perfectly well the nature of the deed which he was executing." And, upon a case of D'Aranda v. Houston, 6 C. & P. 511 (E. C. L. R. vol. 25), being mentioned, where similar evidence had been received upon a like plea, his Lordship added, "I am aware that there have been cases in which it has been done; but my own opinion being decidedly against the admissibility of such a defence under this plea, I will not consume the time of the court in trying it." In the ensuing term, the defendants moved for a new trial, on the ground that the evidence of fraud had been improperly rejected: the court made the rule absolute, in order that the question might be more distinctly raised,-see 2 C. M. & R. 720 (a). The case was tried again at the sittings after Michaelmas Term, 1835, when the evidence was received: but the plaintiffs had a verdict. *In Edwards v. Brown, 1 C. & J. 307,† it was held, *2221 that, where a party who executes a bond is at the time competent to execute it, he cannot under the plea of non est factum show that he was misled as to the legal effect of the bond. "I agree," said Bayley, B., "with my Brother Russell, that, whatever shows that the bond never was the deed of the defendant may be given in evidence upon non est factum. But, if the party actually executes it and was competent at the time to execute it, and was not deceived as to the actual contents of the bond, though he might be misled as to the legal effect, and though he might have been entitled to avoid the bond by stating that he was so misled, it nevertheless became, by the execution, the deed of the defendant, and he is not at liberty, upon the plea of non est factum, to say that it was not." The agreement having been made, and the plaintiff once let into possession under it, and so having become seised of the term, how can his legal interest in the term be affected by some antecedent collateral fraud?

JERVIS, C. J.-I must confess I have entertained considerable doubt during the course of the discussion; but the argument of Mr. Giffard has satisfied me that this rule ought to be made absolute. It is unnecessary to pronounce any opinion upon some of the points which have been suggested. In the first place, it was urged that certain evidence as to a criminal charge made against the plaintiff before a magistrate, and as to his having been fined for being found in a common gaminghouse, which was offered for the purpose of depreciating the plaintiff's character, was improperly admitted. And, further, it was said that there was no evidence in this case of fraud. I incline to think the

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evidence alluded to was inadmissible: and I think there was abundant evidence of fraud. But it is unnecessary to give any *distinct decision upon either of those points, because I am of opinion, that, assuming the evidence in question to have been properly received, and assuming that the plaintiff was guilty of a fraudulent misrepresentation when he said that his object in taking the premises, was, that he might carry on therein the perfumery business, when he really intended to devote them to the infamous purpose to which the jury found he intended to devote them and did devote them, the plaintiff still is entitled to recover in this action. Mr. Raymond contended that an agreement to let apartments to be used by the tenant for immoral purposes, is an illegal and void agreement; that the defendant was justified in forcibly evicting the plaintiff the moment he discovered the improper use he was making of the apartments; and that, if we hold the plaintiff entitled to recover, and so reinstate him in the possession, we shall be lending our aid to the enforcing an agreement that is tainted with fraud and illegality. I thought at first that that argument presented the true view of the case. But the argument of Mr. Giffard has convinced me that the real question is, whether, the agreement having been made, and the term vested in the plaintiff, and the plaintiff having been once let into possession, the estate has not so passed as to prevent its being divested by a collateral fraud. There can be no doubt whatever that the defendant intended to do, and in fact did do, everything that was requisite to constitute a valid lease. He executed the instrument,—an instrument sufficient for the purpose of conveying the term, -well knowing its effect; and he delivered possession of the premises to the plaintiff, with the intention of passing the term to him, if any were created by the instrument. What is there to avoid that, or to divest the plaintiff of the interest which has passed to him? The defendant seeks to dispossess the plaintiff, not by reason of any misrepresentation as to the legal effect of *the contract he was entering [*224 into, but because the plaintiff, at the time of the negotiation for the lease, represented (falsely, it may be) that he was about to use the premises for a particular purpose. That was, as Mr. Giffard justly observes, a representation as to something altogether collateral to the contract. I do not think that the immoral intention in the mind of the plaintiff at the time, or the immoral use made by him of the premises after he got possession, can have any effect at all upon the validity of the contract. In the cases relied on for the defendant, the aid of the court was invoked to enforce a contract which was either contrary to public policy or contrary to some statute. Thus, in Ritchie v. Smith, 6 C. B. 462 (E. C. L. R. vol. 60), the plaintiff was seeking to enforce the payment of rent under an agreement which was an express violation of a positive law. So, in the Gas-light Company v. Turner, 5 N. C. 666 (E. C. L. R. vol. 35), 7 Scott, 779, and 6 N. C. 324 (E. C. L. R.

vol. 37), 8 Scott, 609, there was not, as here, a mere intention on one side to do an illegal act, but the lease which the plaintiffs were seeking to enforce was executed by both parties for the express purpose of carrying into effect something which was prohibited by law. Here, the lease upon the face of it is a perfectly valid one. A bare intention such as is shown here is not enough to avoid it. The defendant intended to demise the premises to the plaintiff, and he did all he could to carry that intention into effect. The plaintiff entered under that demise, and became possessed of the term. I therefore think his title to maintain this ejectment cannot be impeached in a court of law.

MAULE, J.—I am of the same opinion. The plaintiff is not calling upon the court to enforce any agreement at all. The agreement was an agreement on the part of the defendant to demise certain premises to the plaintiff for a given term. When the instrument was *225] executed, and possession was given under it, it received its full effect no aid of a court of justice was required to enforce it. This action of ejectment is brought, not for the purpose of enforcing the agreement, but the plaintiff asks the court to afford him a remedy against one who has extruded him from a lawful possession. There is therefore a manifest distinction between this case and those where the court was called upon to assist the plaintiff in enforcing an agreement, the object of which was to do an illegal act, as in Ritchie v. Smith. In that case both plaintiff and defendant were parties to an agreement, the very object and intention of which was, to enable one of them to commit an infraction of the law. If the court there had refused to listen to the defence, they would have been helping the plaintiff to enforce something which lay in contract, viz., the payment of rent, when both parties to the agreement were intending to apply the premises to an illegal purpose: the plaintiff was seeking to enforce the performance of an illegal agreement. Such also was the case of the Gas-Light and Coke Company v. Turner. Here, it is said, not that the defendant did not intend to create the term and to vest the interest therein in the plaintiff, but that the execution of the instrument by which that interest in the premises was conveyed to the plaintiff, was procured by means of a fraudulent representation as to the plaintiff's intention. But, however fraudulent and immoral the plaintiff's conduct may have been, I am aware of no authority which supports the position that the plaintiff's title can be impeached in a court of law by showing that the deed under which he claims has been obtained by such fraud. I think it would lead to most inconvenient and mischievous consequences, if we were to hold that a title once vested might afterwards be impeached, on the ground that one of the contracting parties had been induced by a fraudulent representation of the other as to the uses to which *226] he meant to apply the premises, to execute the conveyance. The defendant's proper remedy, if any, is in a court of equity. With re

spect, therefore, to the misrepresentation, I conceive that the defendant, if he has been imposed upon, might have a remedy against the plaintiff: but I think it cannot be said that the term did not pass. As to the plaintiff's intention at the time of the contract, I think neither that nor the use he made of the premises subsequently will avoid the lease. The plaintiff was to have some locus pœnitentiæ: it is not to be presumed that he will continue to do that which is unlawful.

CRESSWELL, J.-I concur with my Lord and my Brother Maule in thinking that this rule ought to be made absolute. The subsequent user of the premises for the illegal and immoral purpose suggested, will not avoid the lease: still less will the intention so to use them. The only question is, whether the fraudulent representation made for the purpose of inducing the defendant to grant the lease, will prevent its having effect. I think the argument of Mr. Giffard, and the cases he has cited, clearly show that the plaintiff's misrepresentation of the purpose for which he wanted the premises, has not the effect of preventing the term from vesting in him.

CROWDER, J.-I am of the same opinion. At the trial, it appeared to me that the cause was absolutely undefended. The lease was executed by the defendant with full knowledge of what he was about. The only ground upon which it was sought to be impeached, was, that the plaintiff had misrepresented the purpose for which he wanted the premises, and his intention to put them to an immoral use. I was pressed by Mr. Chambers to leave to the jury the two questions I did leave, viz., whether the defendant was induced by the plaintiff's false representations to grant him the lease, *and whether at the time he [*227 hired the premises he intended to use them for immoral purposes. I thought at the time, and I still think, that there was no defence. It seems to me to be perfectly clear, that, notwithstanding the falsehood of the plaintiff's representations and the iniquity of his intentions, the term passed by the lease, an interest was created in the plaintiff, from which he was illegally expelled. The plaintiff's fraudulent representations and intentions led to an inquiry that was wholly collateral. The case is in no degree varied by the fact that the plaintiff is seeking by this action to regain the possession of which he has been deprived. He is not calling upon the court to aid him in enforcing or carrying into effect an illegal agreement: all he seeks is, to recover the possession of premises to which he is lawfully entitled. His misrepresentation will not prevent the demise from taking effect. Suppose the defendant had, instead of turning the plaintiff out, brought an ejectment, would not the agreement have afforded a good answer? No case has been cited to show that it would be any answer, that the lease was obtained by a false representation. All those referred to were very different from this case they were all cases where the aid of the court was invoked for the purpose of carrying into effect an illegal agreement into which VOL. XV.-22

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the parties had entered. No intention existing in the plaintiff's mind could make the contract void. He might have repented. For these reasons I am of opinion that the rule to enter a verdict for the plaintiff should be made absolute. Rule absolute.

Montagu Chambers, for the defendant, prayed that the execution might be stayed, in order to give the defendant an opportunity of going to a court of equity.

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*JERVIS, C. J.—I do not see what power we have to do that which is asked. The case must take its ordinary course. The rest of the court concurring, Application refused.

GALLOWAY and Another v. KEYWORTII and Others. May 26.

Where a witness is rejected at Nisi Prius, and the ruling of the judge is acquiesced in by the parties, or upheld by the court, the expenses of his attendance are not allowed on taxation as between party and party.

So, where the witness is rejected by an arbitrator, whether upon a sufficient or insufficient ground. A cause was called on at the assizes, and referred to a lay arbitrator. On the hearing before him, a scientific witness was tendered on the part of the plaintiff, and rejected by the arbitrator, on the ground that, being himself a scientific man, he did not need the witness's assistance:Held, that the master, on taxation as between party and party, properly disallowed the expense of the witness's attendance as well at the assizes as before the arbitrator.

As to the right of a lay arbitrator to avail himself of, and to charge for, professional assistance in preparing his award,-quare?

At all events, the charge must be reasonable.

Where a lay arbitrator charged fifty guineus for four meetings, the master declined, on taxation as between party and party, to allow anything in addition (except the stamp-duty) for the charges of an attorney for preparing the award :-A rule to review refused.

THE plaintiffs had erected for the defendants certain steam-engine boilers upon a new principle, for which the plaintiffs had obtained a patent. By the contract the plaintiffs were to be paid three-fourths of the saving in fuel effected by their process during the first five years. There was a plea of payment into court; and the only question in issue between the parties was the amount of damages.

The cause came on for trial at the Summer Assizes at Liverpool, in 1852, when a verdict was taken for the plaintiffs, for the damages in the declaration, subject to a reference to an engineer. The arbitrator having awarded 1377. damages in favour of the plaintiffs beyond the sum paid into court, the plaintiffs signed judgment, and on the 24th of April last proceeded to tax their costs. Amongst other items claimed before the master, was a sum of 251. 2s. for the attendance of a witness *named Armstrong, as well at Liverpool as before the arbitrator *229] at Bolton; but whose evidence the arbitrator declined to receive. It was urged that Armstrong, who was a boiler engineer, had attended by the advice of counsel, who considered him a material and necessary