case duchess dowager of marlborough appellant edward strong and another  respondent that February Mews dig viii where excessive prince be charge for  work on account of slow and precarious payment no interest ought to be allow  for interest be only allow to supply the want of prompt payment see note at  the end of this title on p infra another point of this case be thus state in  vin can title contract and agreement earl Godolphin the Lord treasurer of her  majesty queen whether agree with builder before the act make for building  Blenheim at the expense of the crown and recite that he make such agreement at  the instance and desire of the duke of Marlborough the duke be bind by such  agreement and liable to pay for the work do after the statute as well as  before see Eq ab can S p order of the court of exchequer reverse viner vol p  can Eq can ab can her majesty queen Ann as a reward for the service do by the  late duke of brown er p Marlborough to the public and particular in memory of  the victory obtain at Blenheim give direction to build a house at her own  expense for the duke at Woodstock which be to be call Blenheim and her majesty  give order to the Lord treasurer Godolphin by several warrant under her sign  manual to issue money to John tailor gentleman to be pay over by he for defray  the charge of the work brown accord to such direction as he shall from time to  time receive from Samuel travers Esq her majesty then surveyorgeneral in  pursuance also of her majesty pleasure the Lord treasurer appoint her own  officer videlicet sir John Vanbrugh to be surveyor of the work and Mr bolter  and Henry join and after Mr Boulters death Tilleman bobart together with the  say join jointcomptrollers and clerk of the work pursuant to these warrant  several sum of money be from time to time issue into the hand of Mr tailor and  by he pay towards carry on the say work accord to the order of Mr travers  without the intervention of the duke who not apprehend himself liable to pay  for the same never have or inspect the bill of the respondent or any other of  the workman but the bill remain in the hand of the workman after they have be  inspect by the queen officer and be deliver to Mr tailor upon the payment  thereof in this manner the building be carry on at the expense of her majesty  till the first of June when her majesty think fit to put a stop to it and at  which time there be a arrear due to the workman artificer and other employ in  the say building on the that of June a estimate be lie before the house of  Commons of the debt which be owe to the several head of expense of her majesty  civil government at midsummer amount to pound one of the head whereof be to  the building at Woodstock by estimation pound and upon this estimate a bill be  bring into the house and pass into a act entitle a act for enable her majesty  to raise pound for the use of her civil government to be apply towards payment  of such debt and arrear owe to her servant tradesman and other as be therein  mention in the first year of king Geo I a act pass entitle a act for enlarge  the fund of the governor and company of the bank of England and for satisfy a  arrear for work and material at Blenheim incur while that building be carry on  at the expense of her late majesty etcetera which take notice that the  building at Blenheim and make the garden and other conveniency thereto have be  begin and carry on accord at the expense of her say late majesty and that the  charge thereof have be bear by her majesty out of the revenue appoint for the  use of her civil government and then go on thus videlicet for the clear of any  doubt that may arise whether the debt which then remain unsatisfy to artificer  and other for work perform and material deliver upon account of the building  and work aforesaid while the same be carry on as aforesaid ought to be satisfy  out of the arrear of her majesty say revenue due at the time of her demise and  the money then remain of the say pound by the aforesaid act authorize to be  raise it be thereby declare that all the debt which then remain unsatisfy to  artificer and other for brown work perform and material deliver on account of  the say building and work on or before the saint day of June when her majesty  first cause the payment on account of the say building to be stop ought to be  and the same be thereby accord direct and enact to be pay out of the money  then remain of the aforesaid sum by the last mention act authorize to be raise  and out of the arrear of the say revenue grant to her majesty for the use of  her civil government as aforesaid due at the time of her demise in such and  the like manner and by such proportion only as other her majesty debt be or  ought to be pay in pursuance of this act king Geo I by his letter of privy  seal date the that of September authorize and command the lord commissioner of  the treasury that out of the money then remain in the receipt of the exchequer  of the say pound and also out of the arrear of the revenue grant to her say  late majesty for the use of her civil government due at the time of her demise  they shall issue any sum not exceed pound to the say Mr travers to be apply  and pay over by he towards discharge such debt as remain un brown er p satisfy  to the artificer and other for work perform and good and material deliver upon  account of the say building and work on or before the saint of June accord to  such bill and account thereof as shall be examine and allow by William Lowndes  sen James crag sen and William sloper esqr who be thereby appoint to settle  and adjust the demand of the artificer and other relate to the say work at  Blenheim under this authority Mr Lowndes Mr crag and Mr sloper settle and  adjust the demand of the artificer and other and particular of the respondent  and order a three part of their respective demand to be pay and pound or  thereabouts have be issue into the hand of Mr travers pursuant to the say  letter of privy seal be pay several of the say artificer and other a three  part of their respective demand and particular in January he pay the  respondent pound S and pound S d which they accept and for which they give a  receipt to Mr travers as so much receive of he pursuant to the say letter of  privy seal out of the arrear and remain of her late majesty revenue but in  easter term the respondent exhibit their bill in the court of exchequer  against the duke of Marlborough and the say sir John Vanbrugh set forth that  the house and building at Blenheim be erect at the duke be expense and that  the Lord treasurer Godolphin by a instrument in write date the that of June  have appoint the say sir John Vanbrugh at the request and on the behalf of the  duke to be surveyor of the say work and building and thereby authorize he to  make contract for work and material and that sir John Vanbrugh have accord  enter into a agreement in write with the respondent date the that of may  whereby the brown respondent agree to perform the mason work in the say  building at the rate and prince therein mention and the bill charge that they  enter upon the work and continue in the same till August upon the credit of  the duke of Marlborough and that they from time to time make out their bill  and the same be cast up state and sign by sir John Vanbrugh Henry join  Tilleman bobart and William Jefferson and that there remain due to they the  sum of pound S d and pound the respondent therefore pray by their say bill  that the duke may be decree to pay the say two sum together with interest for  the say pound S d from the time they receive the three part of their debt from  Mr travers in January and that if sir John Vanbrugh do not act in the premise  on the behalf of the duke of Marlborough that then the say sir John Vanbrugh  may be decree to pay their say demand and interest the duke of Marlborough put  in his answer to this bill and say he know not by who the respondent bill or  the work and material therein mention be sign measure and state but that he  never sign or allow their bill or account and the cause be at issue come on to  be hear upon the saint of February when the court declare that the duke of  Marlborough be bind by the instrument sign by the late earl Godolphin appoint  sir John Vanbrugh surveyor of the work and building aforesaid and empower he  to make contract with artificer and workman to be employ about the say  building and also by the contract make by the say sir John Vanbrugh with the  respondent in pursuance thereof and ought to pay what remain due to they by  virtue thereof and therefore order and decree that the duke shall account with  and satisfy the respondent for what remain due to they for the say building  pursuant to the say contract the take of which account be thereby refer to the  deputy remembrancer who for the better discovery and ascertain what be due  thereupon to the respondent be to be arm with a commission for examination of  witness for prove any particular matter relate to the say account and if upon  take the say account any special matter shall arise before the say deputy  remembrancer he be to report the same to the court and the consideration of  interest for what shall upon the say account appear to be remain due to the  respondent be reserve till the come in of the report and if it shall appear to  the deputy remembrancer that there have be any state account of any of the  matter in question the same be not to be unravel but the deputy remembrancer  shall in his report compute interest for the balance of such state account  notwithstanding that the consideration whether such interest brown er p shall  be allow or not be reserve as aforesaid This decree be afterward affirm by the  house of lord upon a appeal the deputy remembrancer accord make his report on  the that of June and thereby certify that the duke of brown Marlborough be in  may indebt to the respondent in pound S d for Burford stone before that time  by they deliver at Blenheim for the service of his grace and that the same be  state and allow by William Jefferson the proper officer appoint for that  purpose in may to be then due to the respondent and therefore the deputy  compute interest at pound per cent for that sum from the that of may that the  duke be in June indebt to the respondent in the further sum of pound S d for  Burford stone before that time by they deliver at Blenheim for the service of  his grace and that the say sum be state and allow by the say Jefferson the  proper officer appoint for that purpose as aforesaid in the say month of June  to be due to the respondent and therefore the deputy compute interest for that  sum after the rate aforesaid from the that of June that the duke be in  September indebt to the respondent in the further sum of pound S d for mason  work do by they at Blenheim for the service of his grace and that the same be  state and allow to be due to they by sir John Vanbrugh join and bobart the  proper officer appoint by his grace for that purpose in September and  therefore the deputy compute interest for that sum at the rate aforesaid from  the that of September that the duke be on the that of march indebt to the  respondent in pound S d for mason work do by they at Blenheim for the service  of his grace and that that sum be state and allow to be due to they by the say  sir John Vanbrugh join and bobart the proper officer appoint for that purpose  by his grace on the say that of march and upon the whole matter the deputy  report the duke to be indebt to the respondent in pound S d but whether the  interest before compute ought to be allow he leave to the judgement of the  court but as to the sum of pound which the respondent demand by their bill and  which they swear in their answer to the duke of Marlborough cross bill to be  due to they on a particular account therein mention their answer be falsify in  that particular for it be prove and they be on the contrary report indebt to  the duke of Marlborough on that account pound the duke in his lifetime take  the follow exception to this report I for that the deputy have allow the  respondent the several sum aforesaid for Burford stone deliver and mason work  do whereas there be not sufficient evidence in the cause that such stone be  deliver or such work do by the respondents II for that the deputy have certify  that the say two first sum for Burford stone be state and allow by the say  Jefferson the proper officer appoint for that purpose whereas the say  Jefferson be not appoint for any such purpose either by the duke of  Marlborough or the late earl Godolphin neither have sir John Vanbrugh join and  bobart or any of they joint or several any power or authority brown to depute  or appoint the say Jefferson for the purpose aforesaid nor be any appointment  of the say Jefferson produce before the deputy III for that the deputy ought  not to have compute interest for any of the sum in his report mention in  regard they do not in their nature carry interest nor be there any account  state of the matter in question within the intention of the say decree and for  that the deputy have compute interest from the year without take notice in his  report that the respondent by their bill only pray interest from January for  the money claim to be then remain due to they and the bill if any then examine  and allow by Mr Lowndes Mr crag and Mr sloper be so examine and allow by  virtue of his majesty letter of privy seal in pursuance of the say act of  parliament of the first year of his reign without the allowance or privity of  the duke of Marlborough or any authority from he and without see any of the  former account or any voucher whatsoever and without any proof that the work  therein mention be do or the material deliver before these exception or the  special matter of the say report come on to be argue the duke of Marlborough  die have make his will and thereof appoint the appellant and the duke of  Montague and Bridgewater executor but the appellant only prove the will and  act in the say executorship brown er p the cause be revive be hear upon the  say report and exception on the that of June when the court think fit to  overrule the first and second exception and on the that of the same month the  cause come on upon the three exception when one of the baron be absent and the  rest of they divide in opinion it be order that it shall be refer back to the  deputy remembrancer to review his report upon the subject matter of the say  three exception and to state special to the court the interest of the several  principal sum by the say report certify to be due to the respondent and to  compute the same from the respective time the say principal sum become due to  the respondent in the year and also from the that of January the deputy  remembrancer make his report accord on the d of July and certify that the  principal and interest compute from amount to pound S and that the same  compute from the that of January amount to pound S d on the that of November  the cause come on again to be hear upon this second report when the baron be  again divide in opinion but at last the court declare that no interest ought  to be allow to the respondent on account of the say bill of Burford stone  state in may and June and therefore order that the deputy shall review his say  second report in those particular and rectify the same and shall compute  interest at pound per cent on the say other bill of measure work from the that  of January brown pursuant to this last order the deputy make his report on the  that of December and thereby certify to be due to the respondent pound S d  from these order of the that and that of June and that of November the  appellant appeal and on their behalf it be argue t reeve c Talbot that in a  case so circumstance as the present where the duke of Marlborough never  apprehend himself to be liable to pay for the say building and consequent can  not think himself concern to look after the contract or the execution of they  nor have any of the account receipt or voucher relative to the building the  respondent ought to be hold to the strict and clear proof that the nature of  their demand be capable of whereas on the contrary it be apprehend that the  proof make by the respondent be such as ought not to be admit in any case  whatever for as to the two first sum of pound S d and pound S d for Burford  stone the only evidence produce to support these demand be two bill the first  date may and the other June in which the duke be make debtor to Edmund bray  Esq and Edward strong for the quantity of Burford stone therein mention and at  the bottom of each bill be the follow subscription but without any date  videlicet the above mention stone be receive into the work by your humble  servant William Jefferson and then Jefferson prove his name set to the say  bill to be of his write this evidence the appellant apprehend to her not only  very insufficient but of dangerous consequence to be admit I for by these bill  the duke be make debtor to Mr bray and Mr strong for the stone deliver but in  what proportion they be entitle do not appear nor can a payment of the bill to  the respondent discharge the appellant from any demand which Mr bray may make  against they even for the whole money due on those bill two though Jefferson  swear that he be clerk of the work and sign the bill by a authority from sir  John Vanbrugh and join yet no such authority be produce nor will the same if  produce have be valid for in truth Jefferson be not a clerk of the work but  only a labourer in trust to call the other workman to their duty join and  bobart be appoint by the late earl Godolphin jointcomptrollers I e clerk of  the work which be a office personal to themselves and can not even with the  concurrence of sir John Vanbrugh who be only surveyor be delegate by both or  either of they to Jefferson or any other person III if Jefferson certificate  trial the stone be deliver and his prove his hand to that certificate without  any proof of the delivery of the stone shall be allow the consequence will be  the most mischievous imaginable for by the same rule he may certify that ten  time more stone be deliver and yet he can not be indict for perjury because  his evidence that he sign the certificate be true though the matter of the  certificate itself be false beside it be more than brown brown er p probable  that Jefferson do not receive all the stone which he have certify to be  deliver because it be not only prove that he be sottish and careless and  frequent absent from his business but also that one Ange receive stone into  the building at the time the stone be mention in Jefferson certificate to be  deliver and as to the two bill of measure work for pound S d and pound S d  there be no evidence that the work mention in either of those bill be actual  do but only that the bill be sign by sir John Vanbrugh join and bobart and  which for the reason above mention ought not to be admit beside it be prove in  the cause that bobart never make up prize or adjust any of the workman bill  but that they be so do by sir John Vanbrugh and join without he although by  Lord Godolphin warrant bobart be equal entrust in that business with join and  the reason of make bobart and join jointcomptrollers be that they may be a  check upon sir John Vanbrugh and upon one another as appear from the warrant  themselves that bobart in his deposition on the respondent behalf have own  that only some of the prince of the work charge in the say bill be pursuant to  the contract and that the rest be allow by he and sir John Vanbrugh and join  whereas it be apprehend that none of these person have power to allow great  prince than be at first contract for as there be no power there be certain no  reason for so do it be prove in the cause that the prince allow by the  contract be a three part or more great than those which be pay by the duke  after he take upon himself the charge of the say building that no interest  ought to be allow for these two last bill I because it be apprehend that by  the balance of a state account mention in the decree must be understand a  balance result from a account of receipt on the one side and work do or  material deliver on the other but no such account be ever state or make up in  this case by any of the officer appoint by Lord Godolphin nor have any of  those officer any power from his lordship to state account two because nothing  more be produce as a state account in order to find a demand of interest than  the say two bill sign by sir John Vanbrugh bobart and join in and it be admit  that no demand be ever make upon the duke of Marlborough by the respondent for  the money pretend to be due to they till after payment be stop by the crown  nor be there any evidence in the cause that any such demand be make at all and  after sign those bill videlicet in October and December several sum amount to  pound S d be admit by the respondent to have be receive from Mr tailor in part  of a run account III because the respondent themselves never apprehend that  there be any state account till when the same be adjust by Mr Lowndes Mr crag  and brown Mr sloper the commissioner appoint by the king letter of privy seal  and so it appear from the tenor of their bill in the exchequer wherein they  set out that at that time there be so much start to be due to they by the say  commissioner of which they receive a three part from Mr travers and pray  interest for the residue from the time of pay that three part but it can not  be pretend that any account state by the say commissioner pursuant to the say  privy seal and find upon the say act of parliament and to which appointment  the duke be no party can be bind or conclusive to the appellant and especial  since it be prove in the cause that even that account be allow upon the credit  of join and upon his allegation that it be true without see any of the former  account or without any proof that the work be do or the material delivered But  indeed the respondent counsel be so candid as to give up that matter on argue  the exception IV because as the allow or not allow of interest be general  discretionary and depend upon circumstance so beside the reason already  mention there be another manifest reason for not allow it in this case namely  because the respondent have charge such extravagant rate for their work in  consideration of the slow and precarious payment from the crown and the allow  interest beside be give they a double recompense a extravagant price in  consideration of delay and interest too for such delay which interest make it  equivalent to prompt payment and so in effect there be no delay and yet the  excessive prince be allow only in consideration and upon supposition of  delay That all the bill and voucher and all the receipt brown er p for money  pay to the respondent and the other workman on account of the building be in  the hand of the officer appoint by the Lord treasurer Godolphin and the duke  be oblige to commence a suit in chancery which the appellant have since his  death revive in order to have those receipt etcetera deliver up that they may  be able to ascertain the demand of the several workman and though the  respondent have single out and demand the money due on the aforesaid four bill  in yet it appear in the cause that they have receive several bill allege to be  due since that time and particular a bill of pound S d allege to be due in  January which be not easy to be account for unless part of the money now  demand be include in those subsequent bill but which for want of the former  bill and voucher the appellant be not able to make out and it be observable  that join upon who credit and allegation the commissioner adjust the say debt  in give in a state of the debt under his own hand and prove in the cause  amount to pound S d after which no more work be pretend to have be do and yet  the state of that debt lie before the say commissioner by join in and allow by  they amount to pound S d so that beside pay a three part more in the prince  the debt be raise above a four part brown more in the whole and therefore it  be hope that the say several order will be reverse and set aside and that  proper direction will be give for ascertain what if any thing real remain due  to the respondent on behalf of the respondent it be say t Bootle S strange  that as to the objection to the prince charge in the bill because the work  have since be carry on by other person at low prince it may very reasonable be  when there remain little to be finish and which can be do by man live and  settle in the neighbourhood whereas when the building be first begin and carry  on by the respondent they be under the necessity of procure a great number of  workman from London and other distant part of the kingdom to leave their  family at a great expense and this upon account of the extraordinary  expedition which be require from they in carry on the say work but the prince  charge by the respondent be such as they contract for and though several  person make proposal nobody will undertake the business at low rate at that  time as to the first exception which the court overrule it be sufficient prove  in the cause that the several work mention in the bill be do and the stone  deliver by the respondent that the several bill thereof be state and allow by  the proper officer appoint by the duke or those act on his behalf for that  purpose and that this allowance be as effectual as if sign by the duke himself  as to the second exception which be likewise overrule by the court it be also  prove in the cause that William Jefferson be appoint clerk of the work and  that his proper and constant business be to take a account of material bring  into the work and certify the same to the paymaster monthly that Jefferson  make out the two bill in this exception mention among many other which be pay  to the respondent and thereby certify under his hand what quantity of stone  the respondent have bring into the work and at what prince in the month of may  and June and the prince therein charge appear to be the same as be agree for  by the contract between sir John Vanbrugh and the respondent that this be the  method prescribe by the duke or those who have full power to act on his behalf  and have for several year be follow by all person concern in the work and many  thousand pound have be pay pursuant thereto the same ought after so great a  length of time to be allow and as to the three exception it be conceive that  by the order of the that of November the appellant have have sufficient  advantage from this exception the interest of the two sum due for stone  deliver in be now total deduct and the interest of the other two bill for work  do in the say year be compute only from the that of January to the respondent  loss of pound which that interest amount to and as to the two bill for work on  which interest be allow the respondent humble insist on the justice of that  allowance those bill appear to be sign and allow by the brown duke be agent in  the follow manner videlicet September measure and cast up per Henry join  Tilleman bobart and then under write this bill accord to the several prince  brown er p agree on per contract amount to mention the sum allow per I  Vanbrugh Henry join Tilleman bobart this be apprehend to be a state of account  within the intention of the decree especial as it be provide by the contract  that the respondent shall have frequent measurement and state of account nor  be it pretend that the account be ever state in any other manner that the  respondent demand of interest in this case be find upon great justice and  reason in consideration of the length of time they have be out of their money  videlicet from the year and more particular as the very contract itself  provide that the respondent shall have such frequent measurement state of  account and advance of money thereon that they shall not expend of their own  money above pound at any time the better to enable they to carry on and finish  the say work and since the appellant after so much canvas of this affair have  not be able to show the least error in any of the say bill the respondent  submit that as the strong evidence of the fairness of their demand and of the  care with which their bill be settle by the duke be agent and the same be  thereby state and reduce to a certainty it be hope they will carry the  interest which have be allow and which be but a small part in comparison of  the whole but after hear counsel on this appeal it be order and adjudge that  the say several order therein complain of shall be reverse and the house be of  opinion that the four bill in question for Burford stone deliver and work do  at Blenheim ought not to be take as state account within the meaning of the  decree in the say cause it be therefore further order that the party shall  forthwith go to a open account touch the particular contain in the say four  bill and any satisfaction receive for the same or any part thereof and the say  court of exchequer be to cause a account to be take accord in take whereof the  deputy remembrancer be to examine into the truth and reality of the say  particular and into the rate and prince thereof whether such rate and prince  be agreeable to the contract make by sir John Vanbrugh or the person appoint  by the late earl Godolphin for that purpose as to such part of the say  particular as fall within such contract and as to such part as do not fall  within the say contract whether the same be reasonable and the deputy be  likewise to see whether the say particular or any of they be comprise in any  other bill of work or material which have be pay off and discharge and what  shall be find to remain due and unsatisfy to the respondent the appellant be  to pay and for the better take the say account the say court be to cause the  party to be examine upon interrogatory so far as shall be necessary touch the  matter of the say account and for the brown discovery of all account book  voucher paper and write touch or relate to the say building at Blenheim and  any money pay or satisfaction give for or on account of the same and to compel  the respective party in this cause to produce upon oath before the say deputy  remembrancer all such of the say account book voucher paper and write as be in  their or any of their respective custody or power and that the say court of  exchequer shall give such further direction pursuant to this order as shall be  just jour vol p