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Duke, he did not look upon himself to be in any shape a debtor for the same; and therefore never concerned himself with the prices of the work, whilst it was carried on in that manner. If, however, he was to be decreed to pay for the building, during any part of the time that he apprehended the same to be carried on upon the credit of the Queen, he certainly ought not to be concluded by any prices agreed to, or any accounts stated with the respondents by Sir John Vanbrugh, or any other officer concerned in the works; but ought to have been at liberty to controvert the accounts, and the prices charged from the beginning.

[180] What the respondents chiefly relied on in this case, and upon which they founded their demand against the Duke, was the warrant or authority by which the Lord Treasurer Godolphin appointed Sir John Vanbrugh to be surveyor of the building, and Sir John's evidence in the cause.—But as to Sir John Vanbrugh's evidence, it was apprehended, he would appear to be so much concerned in interest in the event of the cause, and that the letters and papers, at several times under his own hand, would he so hard to be reconciled with his deposition for the respondents, that the credit of his testimony would be very much affected, in case his evidence should be admitted to be read.—And as to the warrant, it was procured by Sir John Vanbrugh when the Duke was in Flanders, and there was not the least proof in the cause, that the Duke had any notice of it till February 1714, at which time Sir John sent a copy of it to the Duke, inclosed in a paper, taking notice, that although in the inclosed warrant it was said he was to act on the Duke of Marlborough's behalf, yet he very well remembered, that in the beginning of the work, making application to his Grace for his direction in a purchase of timber, the Duke told him, he (the Duke) was not to meddle in any thing of that kind; and, on several occasions afterwards, explained to him (Sir John) that he (the Duke) had nothing to do in the disposition of the money allotted by the Queen for the buildings, but referred him (Sir John) to the Lord Treasurer Godolphin.—And the Lords of the Treasury having, since his Majesty's accession to the crown, required Sir John Vanbrugh to lay before them how the money issued for the building had been accounted for; he gave a memorial to their Lordships, wherein, after a history of the rise and progress of the building, and the manner in which it was carried on, he said, he believed that the Duke of Marlborough avoided the actual signing, allowing, or passing the accounts of the expenditure of the money, to avoid any act which might make him personally a debtor for the work.

Another thing upon which the respondents laid great stress, was the form of the warrants under the Queen's sign manual, whereby the money was imprested into the hands of Mr. Taylor, without any account-imprest, or other charge, to be rendered to the Queen, or any other person, except to the Duke of Marlborough, his heirs and assigns.—But those warrants went on further, and declared, that it was intended the money should be paid over by Mr. Taylor, towards defraying the expence of the building, according to such orders and directions, as he should from time to time receive from Samuel Travers, esq. her Majesty's Surveyor-General: so that by these warrants, the Duke had not any authority to order the payment of any part of the money so issued; nor did he, in fact, ever concern himself in giving any orders or directions about it. And the reason of thus impresting the money without any account, except to the Duke of Marlborough, was apprehended to be only to prevent the inconveniences which might arise, if the persons who had the receipt and management of this money, should be accountable for it according to the [181] forms and methods of the Exchequer: but it appeared, through the whole course of this transaction, that the expenditure of the money had been taken care of by the officers 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 held that office.

It was objected, that the first act of Parliament which took notice, that the house of Blenheim was built at the Queen's expence, did not pass till December 1706, which was subsequent to the time that Sir John Vanbrugh was appointed surveyor of the building; and that therefore, the respondents could not know or apprehend that the Crown was to pay them, there being then no contrast, or public declaration to bind the Crown.—But if this objection had any weight, it could extend only to charge the Duke of Marlborough with respect to such work as was performed