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mitted to insist upon such things as were necessary, for finishing the house, unless such matters were described in the model; whereas he contended the words model and design, as the same were placed, and made use of in the late Earl's will, were words of description, and properly made use of to declare his meaning, how, and in what manner he designed and [413] intended the building should be finished; and that taking the whole clause, or sentence of the will together, (viz.) that the house at Ragley be finished according to that model and design which I began, and carried it on in: the words model and design were not to be taken as synonimous words, meaning one and the same thing, but were each of them significant and declarative of his intent and meaning, and neither of them to be rejected as superfluous, or insignificant, and might well import a reference to the model, as to the size and dimensions of the house, and to what was by him designed, as to the manner of perfecting and finishing the house; and further insisted, that what was so designed by the late Earl, was capable of being made out by proof, not only by the late Earl's declarations, but also in great measure by what he himself had done, touching the out offices and buildings, which he lived to finish suitable to his design: And that it could not be thought the testator meant only a referrence to the model in wood, made before the building began, and much less, that he intended that only an outside, or shell of a house, should be built, and the house not finished or made fit for habitation. And appellant therefore hoped he should not be sent to law under any such restraint or prejudice, but that the issue should be so varied, or such other directions given, that he might have the full benefit of what was meant and intended by the late Earl, according to his will. (Edward Northey.)

The respondent shewed upon his part, that he had carefully and diligently attended to the finishing the building, and employed the ablest workmen and artificers, and conducted himself by the advice of the most eminent council, and had expended 10721l. 12s. 8d. in finishing it according to the model; and that he had tendered the key to Lord Conway's agent, Sir Edward Seymour and Mr. Gwyn, who severally refused to receive it; and shewed further, that appellant lived at the old house just by for many years whilst the house was building, and frequently saw it, and made no complaints against it: And when the staircase was painting, which respondent was under no obligation to do, appellant chose the colour: And that in 1705 and 1706, a strict survey was made [414] and compared with the model; and appellant and his lady, and Sir Edward Seymour and Mr. Gwyn were there, and then found no fault, other than with the garret floors, and desired some alterations might be made in the cornish, which was done accordingly; and that respondent, in 1709, exhibited his bill in Chancery, to be discharged from the trust, and to have up his articles; and appellant by his answer insisted upon many defects in the building and finishing the house, viz. That the house was too low, roof ill placed and weak, want of cupulo and ballisters, timbers slight, &c. and exhibited his cross-bill for satisfaction of the pretended breach of trust, and damnifications: And that both causes were heard, the issue stated by appellant directed: And that appellant's own council and agents had drawn up the issues, and that appellant's council on the trial endeavoured to go off from the issue, and to examine witnesses as to what they imagined was designed by the late Earl to be done to the house: But the court being of opinion such evidence was unreasonable, and not material to the issue, appellant would not proceed farther, but became nonsuit; And that the Lord Keeper refused to alter the issue upon a re-hearing: And respondent insisted the Lords ought to affirm that order: because if the model should not be the rule of what was to be done, there could be no certainty, but fanciful imaginations of witnesses, or hearsay-evidence, must take place; and probably the buildings of this time, would be the rule for a house directed to be built 28 years ago: And respondent shewed, that many things were described in the inside of the model very particular, as dimensions of rooms, plans of doors and chimnies, pavement of the great hall, and pillars, and capitals, and freezes against the wall and cornishes, &c. which showed what sort of finishing was meant; and insisted that in case a model were made of a house to be built, and a builder agree, no man could say the builder was obliged to do more than the model directed, unless upon a new agreement; and that the fashion and quality of wainscots, and other things contended for, was as endless as men's fancies; and as to the floors, respondent shewed, that dowling floors, and streight and clean joints, were