case duke OF marlborough appellant edward strong and another respondent that  may Mews dig viii xi a on the behalf of b enter into a contract with workman  for building a house this contract be bind on b though no special authority be  prove to have be give by he to a empower he to enter into such contract John  duke of Marlborough have in the several character of general and commander in  chief of the confederate Army in the low country and of ambassador  extraordinary and plenipotentiary of queen whether to the state general of the  unite province render signal service to the nation it brown become a object  both of royal and parliamentary attention to perpetuate the memory of those  service accord in the queen be please to signify her intention of grant the  honour and manor of Woodstock and hundred of Wooton to the duke and his heir  and a act of parliament be pass and Ann enable her majesty to make this grant  which be accord do and as a further reward for the duke be service and  particular in memory of the victory obtain at Blenheim the queen resolve at  her own expense to build he a house upon the say manor of Woodstock and give  order to sir John Vanbrugh who be then comptroller of her majesty work to  frame a model of the intend building which be do her majesty express her  approbation thereof and order it to be place in the gallery of her palace at  Kensington and direct the building to be dispatch accord to the model with all  possible application the public service soon after call the duke abroad he  request the earl of Godolphin who be then Lord high treasurer of England to  act for he in relation to this building and employ such person and enter into  such contract for that purpose on his behalf as his lordship shall think  proper and necessary under this authority the earl by a instrument under his  hand date the that of June recite that his grace the duke of Marlborough have  resolve to erect a large fabric for a mansionhouse at Woodstock in the county  of Oxford he the say earl do at the duke be request and desire and for and on  his behalf appoint sir John Vanbrugh to be surveyor of all the work and  building so intend to be erect at Woodstock and do thereby empower he to make  and sign contract with any person for material and with any artificer and  workman to be employ about the say building in such manner as he shall judge  proper for carry on the say work in the best and most advantageous manner and  to employ day labourer and carriage as he shall find necessary for the say  service and to do all other matter conducive to the effectual performance of  what be direct by the say duke of Marlborough relate to the say work and the  say earl thereby authorize and require the say sir John Vanbrugh to lie before  he from time to time in the absence of the say duke a account of his proceed  therein together with what he shall think necessary to be observe or wherein  further instruction may be want that the same may be give accord in pursuance  of this power sir John Vanbrugh on behalf of his grace enter brown er p into a  agreement with the respondent by article under his and their hand and seal  date the that of may whereby they covenant with sir John in consideration of  the material of stone lime sand water and scaffold find at the duke be expense  and of the rate and prince therein mention to perform all such mason work as  shall be order to be do there pursuant to the order and design and accord to  the brown direction give they from time to time by they say sir John Vanbrugh  or his assign and to find at their own expense all workmanship and labour and  hoist set and make up of mortar and set up scaffold and sir John Vanbrugh on  his grace behalf thereby covenant that the respondent shall have such frequent  measurement state of account and advance of money thereon as 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 work conformable to this agreement the  respondent enter upon the work and the queen have by several warrant under her  sign manual give order to the Lord treasurer Godolphin to issue money to John  tailor gentle to be by he pay over for defray the charge of the work several  sum to the amount of pound be from time to time pay by he for that purpose  accord to the order of Samuel travers esquire her majesty then surveyor  general and in this manner the building be carry on till the saint of June  when her majesty think fit to put a stop to it at which time there be a great  arrear due to the several workman and to the respondent in particular the sum  of pound S d on the that of June the chancellor of the exchequer lie before  the house of Commons a estimate of the debt which be owe to the several head  of expense of her majesty civil government at midsummer amount to pound one of  which head be to the building at Woodstock by estimation pound and upon this  estimate a bill be bring in and pass for enable her majesty to raise pound for  the use of her civil government to be apply towards payment of such debt and  arrear to her servant tradesman and other as be therein mention a act pass Geo  I 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 c which  take notice that the building at Blenheim and make the garden and other  convenience thereto have be begin and carry on accord at the expense of her  say late majesty till the work thereof cease 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 in these word videlicet for the clear of any doubt  that may arise whether the debt which incur and become due and now 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 pay and satisfy out of the arrear of her majesty say  revenue due at the time of her demise and the money now remain of the say  pound by the aforesaid act authorize to be raise it be hereby declare that all  the debt which be actual incur and grow due and now 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 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 hereby accord direct and enact to be pay out of the money now  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 and satisfy in consequence of this last act of parliament the  respondent receive from the treasury so much money as reduce their demand to  pound S d but be give to understand that no far payment will be make at the  treasury on this account they have recourse to the duke for satisfaction of  their brown er p say balance and his grace have refuse to pay the same the  respondent in easter term exhibit their bill in the court of exchequer against  the duke and sir John Vanbrugh state the several matter aforesaid and pray  that his grace may be decree to pay the say balance of pound S d to this bill  the duke put in a answer and thereby deny that he ever intend to erect the  house and building at his own charge or desire the Lord treasurer Godolphin to  act therein on his behalf but say that whatever be direct by his lordship  relative to the building be not do in his private capacity or by his the duke  be order but in his public capacity as Lord high treasurer and by her late  majesty command and he insist that he be not nor ought to be bind by the  instrument make by sir John Vanbrugh and deny that sir John agreement with the  plaintiff be make by his the duke be direction or with his approbation or that  the material find or work do be do for he or on his credit or that he ever  have or inspect the bill of the workman the duke also file a cross bill  against the plaintiff pray a perpetual injunction to stay their proceed  against he for a satisfaction of any of their demand on the that that and  saint of February both these cause come on to be hear when the court declare  that his grace the duke of Marlborough be bind by the instrument sign by the  earl of Godolphin on his grace behalf appoint sir John Vanbrugh surveyor of  the work and building at Woodstock and empower he to make contract with  artificer and workman to be employ about the say building and also by a  contract make by the say sir John Vanbrugh with the plaintiff in pursuance  thereof and ought to pay what remain due to they for the work do and material  find by they at Woodstock by virtue of the say contract and therefore decree  that his grace shall account with and satisfy the plaintiff for what remain  due to they for the work by they do and the material by they furnish for the  say building at brown Woodstock pursuant to the say contract and refer it to  the deputy remembrancer to take such account and give the usual direction for  that purpose from this decree the duke appeal and on his behalf it be argue t  reeve c Talbot that the several act of parliament which have be pass relative  to the building have declare in the most express term that it be begin and  carry on at the expense of her late majesty till the saint of June and have  make the like provision out of her civil listen fund for payment of the debt  incur on that account as be make for her majesty other debt that the building  be design and so it appear to be from the tenor of those act as a monument of  and a reward for the duke of Marlborough service if therefore the charge of  this building be to be fix as a debt upon the duke the consequence will be  oblige he to erect a monument of his own service and to reward himself at his  own expense than which it be apprehend nothing can be more absurd that the  whole money advance for carry on the building till June have be issue from the  treasury and the respondent be so far from consider the duke as their  paymaster that as be admit by their answer to the cross bill they never make  any application to he for payment of their bill till after the building be  stop in June and afterward in January they accept a three part of their demand  out of the money issue from the treasury to Mr travers and give he a receipt  for the same as so much receive of he out of the arrear of her late majesty  revenue that since the duke have carry on the building at his own expense the  prince of the work be low in some instance one three in other more than they  be before the reason of which be give by the respondent own witness videlicet  that the workman be since more certain of their pay and this be conceive to be  a evidence beyond contradiction that the work do before June be upon the  credit of the crown that accord some of those witness have under their own  hand make a distinction between the debt due on account of the building before  and since by declare the debt due before to be the debt of the government and  that due since to be the duke be own debt that the queen have begin and carry  on the building at her own expense and all the money for that purpose have be  issue from the treasury without any demand be ever make upon the brown er p  duke he do not look upon himself to be in any shape a debtor for the same and  therefore never concern himself with the prince of the work while it be carry  on in that manner if however he be to be decree to pay for the building during  any part of the time that he apprehend the same to be carry on upon the credit  of the queen he certain ought not to be conclude by any prince agree to or any  account state with the respondent by sir John Vanbrugh or any other officer  concern in the work but ought to have be at liberty to controvert the account  and the prince charge from the beginning brown what the respondent chief rely  on in this case and upon which they find their demand against the duke be the  warrant or authority by which the Lord treasurer Godolphin appoint sir John  Vanbrugh to be surveyor of the building and sir John evidence in the cause But  as to sir John vanbrugh evidence it be apprehend he will appear to be so much  concern in interest in the event of the cause and that the letter and paper at  several time under his own hand will be so hard to be reconcile with his  deposition for the respondent that the credit of his testimony will be very  much affect in case his evidence shall be admit to be read And as to the  warrant it be procure by sir John Vanbrugh when the duke be in Flanders and  there be not the least proof in the cause that the duke have any notice of it  till February at which time sir John send a copy of it to the duke enclose in  a paper take notice that although in the enclose warrant it be say he be to  act on the duke of Marlborough behalf yet he very well remember that in the  beginning of the work make application to his grace for his direction in a  purchase of timber the duke tell he he the duke be not to meddle in any thing  of that kind and on several occasion afterward explain to he sir John that he  the duke have nothing to do in the disposition of the money allot by the queen  for the building but refer he sir John to the Lord treasurer Godolphin And the  lord of the treasury have since his majesty accession to the crown require sir  John Vanbrugh to lie before they how the money issue for the building have be  account for he give a memorial to their lordship wherein after a history of  the rise and progress of the building and the manner in which it be carry on  he say he believe that the duke of Marlborough avoid the actual sign allow or  pass the account of the expenditure of the money to avoid any act which may  make he personal a debtor for the work another thing upon which the respondent  lie great stress be the form of the warrant under the queen sign manual  whereby the money be imprested into the hand of Mr tailor without any account  impress or other charge to be render to the queen or any other person except  to the duke of Marlborough his heir and assigns But those warrant go on  further and declare that it be intend the money shall be pay over by Mr tailor  towards defray the expense of the building accord to such order and direction  as he shall from time to time receive from Samuel travers esquire her majesty  surveyor general so that by these warrant the duke have not any authority to  order the payment of any part of the money so issue nor do he in fact ever  concern himself in give any order or direction about it and the reason of thus  impresting the money without any account except to the duke of Marlborough be  apprehend to be only to prevent the inconvenience which may arise if the  person who have the receipt and management of this money shall be Accountable  for it accord to the brown form and method of the exchequer but it appear  through the whole course of this transaction that the expenditure of the money  have be take care of by the officer of the crown under the inspection of the  Lord high treasurer and that as well when the earl of Oxford as when the Lord  Godolphin hold that office it be object that the first act of parliament which  take notice that the house of Blenheim be build at the queen expense do not  pass till December which be subsequent to the time that sir John Vanbrugh be  appoint surveyor of the building and that therefore the respondent can not  know or apprehend that the crown be to pay they there be then no contract or  public declaration to bind the crown but if this objection have any weight it  can extend only to charge the duke of Marlborough with respect to such work as  be perform brown er p by the respondent before those public law pass and it be  humble apprehend that the debt in demand have incur in the year and long after  the make those law can not be Chargeable on the duke unless he have bind  himself by some new contract subsequent to the pass the say act and even  before they be pass the expense of the building be undertake by the crown the  model approve by her majesty and money issue from the treasury for payment of  the workman in the same manner as be do afterward till the year and that the  duke ought not to be charge with the payment of this debt on the foot of the  contract between sir John Vanbrugh and the respondent appear plain from this  that great part of the respondent demand be in respect of material find by  they for the building whereas by that contract the respondent be not to find  those material but only workmanship and labour it be also object that the  respondent have prove by several of the workman that they look upon the duke  of Marlborough to be their paymaster and make their bill as for work do for he  and give acquittance as for money receive of him But sure the form of make  bill and give receipt can not make the duke debtor to the workman if he have  not by some contract make himself so and there be no proof that he have any  notice of such bill or acquittance beside several fact agree in this case show  that notwithstanding the duke of Marlborough name be make use of yet it be not  upon his credit the work be do else how come it to pass that no demand be make  upon the duke till after the queen have put a stop to the building in and when  money sometime issue very slow from the treasury and great arrear be due to  the workman it can not be imagine but they will have make application to the  duke for payment if they have then think of his be their paymaster but it be  apprehend to be so full declare by the several act of parliament  abovementioned that the crown be debtor to these workman that this fact can  not now be controvert and if the crown be the original debtor brown the duke  of Marlborough can not be so too the workman have also a plain remedy against  the crown upon those act of parliament to have their debt pay out of the  arrear of the late queen civil listen but if the duke be oblige to pay those  debt he have no remedy against the crown to reimburse himself the respondent  not venture to rest entire upon the justice of their cause have be very  industrious in represent it as a case of compassion But if it be so they be in  no worse condition than the rest of the late queen creditor however in this  case the respondent be so far from have any reason to complain that they will  be very considerable gainer even if they shall not receive one farthing more  on account of this building than what they have already receive as their  prince be at least a three part high than what the duke pay now that the  building be carry on at his own expense and if the rate charge in their bill  from the beginning be to be reduce to the present prince they will appear to  be abundant overpaid If it shall be object that the respondent deserve such  extravagant prince as have be allow they because of the precarious and slow  payment from the treasury that objection be not true for it appear by the sign  manual that pound issue from thence be pay in about five or six year after the  building be begin so that they have crown prince for work which they be at  first as regular and punctual pay for as if it have be do upon the credit of a  private person and they will be peculiar fortunate if they can prevail to have  crown prince because the payment be precarious and yet have the duke of  Marlborough liable to make the payment certain to they it be therefore hope  that the decree will be reverse and the respondent original bill dismiss as  against the duke and that he shall have a perpetual injunction in his cross  cause for stay all further proceed at law against he for any of the matter  therein contain to all this it be answer c Phipps t Bootle on the part of the  respondent that the contract in question be make at the instance and on the  behalf of the duke before the make of any act of parliament relative to the  building that the money issue for the building be without account to be give  thereof except to his grace and the payment make thereon be by those who act  as his agent brown er p that the sole conduct and management in carry on the  building be under the direction of his grace and the duchess and that the  respondent all along act on his grace credit and look upon he as their  paymaster and therefore it be humble apprehend that though by the act of saint  Geo I it be direct that the money remain due to the artificer and workman on  account of the building and work at Blenheim on or before the saint day of  June shall be pay out of the arrear of the revenue grant to her late majesty  for the arrear of her civil government yet that the contract make so long  before be not discharge nor the respondent remedy against his grace thereby  lessen or destroy brown that as the money which be issue on account of the  building in the reign of her late majesty be under the direction of the duke  and be without account except to his grace so there be no doubt but the money  issue by virtue of the say act be and will be under the same control for the  person entrust with the payment of it refuse to pay any part thereof to the  respondent without the duke be direction that as the duke by his defence  insist that the crown and not he ought to satisfy the respondent demand and  never dispute the prince till by a exhibit prove at the hear which be write by  one of his grace servant after a stop have be put to the work in the  respondent be advice they have no occasion to prove the reasonableness of the  prince the same have be all settle by the contract with sir John Vanbrugh who  before he enter into that contract have receive proposal from several of the  most eminent and substantial man of the trade and find the respondent prince  to be the most reasonable that although the earl of Godolphin be Lord high  treasurer at the time of his enter into the contract with sir John Vanbrugh  yet it appear under his own hand to be make at the request and on the behalf  of his grace and so be several other contract which his lordship make with  other person for admeasuring and comptrolling the work that by the contract  with sir John Vanbrugh he be require to lie before his lordship from time to  time in the duke be absence a account of his proceed and why in the duke be  absence only for if the contract have be make on behalf of her majesty this  account must have be render as well when the duke be at home as in his absence  that Lord Godolphin integrity and understanding and his friendship for the  duke be so great and so well know that it can not be believe his lordship will  have say he contract at the request and on the behalf of the duke if it be not  strict true or that he will have subject his grace to the performance of a  contract to which it be never intend he shall be liable beside the earl be of  so cautious a temper and so great a master of the affair of the treasury that  if he have make any such contract as Lord treasurer on behalf of her majesty  some memorial or entry thereof must necessary have be make in the treasury  book whereas no entry or memorial of any contract make relative to the  building at Woodstock be to be find in any of those book that the duke when in  England be frequent at Blenheim give the necessary direction as to carry on  the building pursuant to the contract and yet never mention to the respondent  that he be not to be their paymaster or that the contract be not make at his  request or on his behalf as to the objection that the officer employ in  relation to the building at Woodstock be the officer of the crown it be true  some of they be but in different capacity from what they be in under the crown  and it be as true that what they do in relation to these building be not as  officer of the crown but as nominate and appoint to those employment by or on  the behalf of the duke of Marlborough which be brown different to what they be  employ in under the crown for sir John Vanbrugh be comptroller of her late  majesty work yet he be appoint surveyor of the building at Woodstock which on  behalf of the crown be the proper office of sir Christopher Wren Mr travers be  surveyor of the crown land and Mr tailer be his deputy and as such have  nothing to do with the receipt and payment of the money for the building at  Woodstock but as appoint to that purpose by or on the behalf of the duke of  Marlborough And Henry join Tilleman bobart and William Jefferson be appoint to  measure the work and to cast up state and sign the workman bill for the  building at Woodstock but be not officer of the crown nor will have have any  power to do it if they have not be appoint brown er p thereto by the duke or  by the Lord Godolphin on his behalf that as the respondent have in every  respect perform the work accord to their contract they ought in justice to be  pay but have no mean to recover the same from the crown they be whole without  remedy if his grace be not liable and must therefore lose the remainder of  their debt after hear counsel on this appeal it be order and adjudge that the  same shall be dismiss and that the decree therein complain of shall be affirm  jour vol p