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by the respondents, before those public laws passed; and it was humbly apprehended, that the debt in demand having incurred in the years 1709 and 1710, long after the making those laws, could not be chargeable on the Duke, unless he had bound himself by some new contract subsequent to the passing the said acts. And even before they were passed, the expence of the building was undertaken by the Crown, the model approved by her Majesty, and money issued from the Treasury for payment of the workmen, in the same manner as was done afterwards, till the year 1712. And that the Duke ought not to be charged with the payment of this debt, on the foot of the contract between Sir John Vanbrugh and the respondents, appeared plainly from this, that great part of the respondents demand was in respect of materials found by them for the building; whereas by that contract, the respondents were not to find those materials, but only workmanship and labour.

It was also objected, that the respondents had proved, by several of the workmen, that they looked upon the Duke of Marlborough to be their paymaster, and made their bills as for work done for him, and gave acquittances as for money received of him.—But surely the form of making bills and giving receipts, could not make the Duke debtor to the workmen, if he had not by some contract made himself so; and there was no proof that he had any notice of such bills or acquittances. Be sides, several facts agreed in this case shewed, that notwithstanding the Duke of Marlborough's name was made use of, yet it was not upon his credit the work was done: else, how came it to pass, that no demand was made upon the Duke till after the Queen had put a stop to the building in 1712? And when money sometimes issued very slowly from the Treasury, and great arrears were due to the workmen, it could not be imagined, but they would have made application to the Duke for payment, if they had then thought of his being their paymaster. But it was apprehended to be so fully declared by the several acts of Parliament above-mentioned, that the Crown was debtor to these workmen, that this fact could not now be controverted; and if the Crown was the original debtor, [182] the Duke of Marlborough could not be so too: the workmen had also a plain remedy against the Crown upon these acts of Parliament, to have their debts paid out of the arrears of the late Queen's civil list; but if the Duke was obliged to pay those debts, he had no remedy against the Crown to reimburse himself.

The respondents, not venturing to rest entirely upon the justice of their cause, had been very industrious in representing it as a case of compassion.—But if it were so, they were in no worse condition than the rest of the late Queen's creditors. However, in this case, the respondents were so far from having any reason to complain, that they would be very considerable gainers, even if they should not receive one farthing more on account of this building than what they had already received; as their prices were at least a third part higher, than what the Duke paid, now that the building was carried on at his own expence; and if the rates charged in their bills from the beginning were to be reduced to the present prices, they would appear to be abundantly overpaid.—If it should be objected, that the respondents deserved such extravagant prices as had been allowed them, because of the precarious and slow payments from the Treasury, that objection was not true; for it appeared by the sign manuals, that £220,000 issued from thence, was paid in about five or six years after the building was begun; so that they had Crown prices for work which they were at first as regularly and punctually paid for, as if it had been done upon the credit of a private person: and they would be peculiarly fortunate, if they could prevail to have Crown prices, because the payment was precarious; and yet have the Duke of Marlborough liable to make the payment certain to them. It was therefore hoped, that the decree would be reversed, and the respondents original bill dismissed as against the Duke; and that he should have a perpetual injunction in his cross cause, for staying all further proceedings at law against him, for any of the matters therein contained.

To all this it was answered (C. Phipps, T. Bootle) on the part of the respondents, that the contract in question was made, at the instance, and on the behalf of the Duke, before the making of any act of Parliament relative to the building. That the money issued for the building, was without account to be given thereof, except to his Grace, and the payments made thereon, were by those who acted as his agents.