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Die Veneris, 2 Martii, 1710. After hearing council on this appeal, it was adjudged by the Lords that the same should be dismissed, and the decrees, orders, reports and proceedings complained of affirmed. Lords Journ. vol. xix. p. 241.

The appellant stated: That Edward, late Earl of Conway, was seised of lands in England and Ireland of 6500l. per ann. (the Irish estate 4700l. per ann.) designed to build a magnificent mansion-house at Ragley, in Warwickshire, and in his life time built the stables and out offices, and laid the foundation of the capital house, and with great application carried it on one story high, and part of another, but died whilst it was carrying on in 1683; and by his will, 9th August, 1683, devised all his lands in England and Ireland to Ursula his Countess for life, subject to this trust: That out of the rents and profits of his estate in Ireland, his house at Ragley should be finished according to the model and design begun, and that so much should annually be allotted for the same as Sir Edward Seymour, and Mr. Gwyn, should think necessary and convenient; and after his wife's death, and the decease of Popham Seymour, appellant's brother, without issue male, all the lands were given to the appellant for life, with divers remainders over: And that the Countess, in 1685, married the Duke of Buckingham, and by articles, 12th March, in that year, Sir Edward Seymour and Mr. Gwyn, allotted 2000l. per ann. out of the rents and profits of the Irish estate, to be from thence forward allowed towards finishing the house according to the Earl's will, and the Duke covenanted to allow the same accordingly; and that the Countess lived twelve years afterwards, and during that time 1700l. only was laid out in the building; and that since then it bad greatly suffered by the Duke's carrying it on in a slow manner, and different from the Earl's design, and that it would require a great sum still to finish it; and that in May, 1708, the Duke exhibited his bill in Chancery, and insisted he had finished the building, and prayed to be discharged from his cove-[412]-nant, and appellant in his answer insisted it was not finished, and brought his cross-bill to compel the Duke to perform his covenant; and issue being joined, both causes were heard before the late Lord Chancellor, 5th May, 1710, who declared that the words in the will design, and model, were synonimous, and meant one and the same thing; and directed certain issues to be tried at law, one of which was, whether at the time the key of the house was delivered or tendered, the building was finished according to the model left by the late Lord Conway, and if not, how much less in value the house then was for its not being so finished; and the Duke being dissatisfied, re-heard the causes before the present Lord-keeper, who was of opinion the issues directed were proper to be tried: And they were accordingly tried at the Common Pleas bar, and appellant gave evidence of several defects, and that the building was not suitably finished; and was proceeding to give evidence of what the Earl had declared his design and intention to be as to the manner of perfecting and finishing the said house, and to prove in what manner he had finished and ornamented the out-offices; but that the Duke's Council objected, that these defects were not described by the model, and that the Earl's design and intention was not the matter to be tried, but only whether the building were finished according to the model; and the Court being of opinion, they were tied down to the strict words of the issue, and that the appellant could give no evidence of any defects but what were described by the model, or a consequence of what was therein described; appellant chose rather to be nonsuit, and endeavoured by motion to have rectified the first issue, but it was objected, that the same being directed on the hearing, could not properly be altered upon a motion, and thereupon appellant petitioned to re-hear the cause, which was also dismissed, the Court not thinking fit to alter the issues; and appellant complained that by so confining the issue, he was not per-