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The Chairman : But they did avail themselves of it. Mr. Gave : It was pleaded in that sense. The right to sue in the Courts of law in the Waitara case was denied, and it was replied that it was too late to go under the Act because the six months within which proceedings should have been taken had elapsed. If the Solicitor-General had told Mr. Travers that the Government would waive the limitation clause of the Act on condition that Messrs. Brogden did not press on all their claims at once, I have no doubt the matter would have been settled amicably. Sir J. Hall.~\ Do you maintain that, even if Mr. Barton's letter had not been written, the Government would still have insisted on setting up clause 31 ? —I am not in a position to say that. What I do say is that throughout the correspondence there is the repeated reservation of clause 31—a reservation of the rights which the Government have under the Act. It is an undoubted fact that the intention of the Government not to insist on this clause was never communicated to Mr. Henderson or to Mr. Travers. The Committee then adjourned till next day.

Fmday, 28th July, 1882. Mr. Gave: I was occupied yesterday in endeavouring to point out to the Committee what appears to me to be clearly proved upon the face of the documents, viz, that the Government never stated their intention to waive clause 31 of the Act; that they not only had never, in fact, waived it, but that they never intended to do so, because they distinctly reserved to themselves the right to make use of it in certain contingencies. Ido not think it is necessary to pursue that subject further, but I should like to refer for a moment to the evidence adduced by Mr. Bell, for the purpose of contradicting Mr. Williarns's evidence on the question of the non-payment of the commissions, and I think I shall be able to show conclusively that Mr. Williams' statements were perfectly accurate, and that, so far as appears from any accounts which have been rendered to Messrs. Brogden, and so far as the accounts go up to the time the works were completed, no payment whatever had been actually made in respect of the commissions, except in the one case of the Napier and Pakipaki line, in which it was admitted that a sum of £449 14s. 7d. had been received. The works were completed by the latter part of 1875 or beginning of 1876 on nearly all of the lines. During the period of construction certain payments had been made on the Engineer's certificates in respect of the contract works and extra works. None of these payments included any sum on account of commission, and I challenge my learned friend to produce a single voucher by which he can show that a payment in any form has been appropriated towards the payment of these commissions. The various sums included in the vouchers are specially appropriated towards payment of sums certified by the Engineer as due in respect of works actually done by the contractors. I say Mr. "Williams's statement on that point was perfectly accurate according to the accounts which have been rendered to Messrs. Brogden, and from copies of the vouchers in their possession. There is not a single voucher which can be pointed to and can be ear-marked (so to speak) as having been given in respect of a payment on account of this commission. All the payments up to the completion of the works were payments on account of the works themselves. After March, 1876, the only payment which was ever made to Messrs. Brogden was a payment which was found to be due on Mr. Maxwell's certificate in 1879. That was a small payment of £700 or £800, which Mr. Maxwell himself stated was made on account of the extra stations on the Taieri contract. Mr. Sell: There is no evidence that Mr. Maxwell appropriated it to that. Mr. Gave: Mr. Maxwell said that on going through the accounts he found that these stations had not been paid for. Why ? Because Mr. Williams had in 1877 called Mr. Carruthers's attention to the fact that some stations on the Taieri line had not been paid for. My learned friend immediately asked Mr. Williams to specify which stations, and asked, " Will you say they were not paid for in Mr. Maxwell's certificate of February, 1879?" Now, therefore, I repeat that Mr. Williams was perfectly accurate in stating that there had not been a single payment on account of these commissions. It is true that, after the completion of the works, without any reference to the Messrs. Brogden, certain accounts were compiled which the gentlemen in the Public Works Department chose to call the Engineers' final certificates. The contents of these documents were never communicated to the Messrs. Brogden, and, so far as I know, they never saw the light of day till yesterday. Messrs. Brogden never had an opportunity of looking into a single item in these documents. My attention is called to the fact that in 1879 an account was sent in showing that certain stations and other accommodation on the Taieri line had not been paid for. So it was clear that Mr. Maxwell obtained his information on this point from documents in the office furnished by Messrs. Brogden. I was remarking that, subsequently to 1876, when the works were completed, and after payments on the progress certificates had been made in the Public Works Office, behind Messrs. Brogden's back, certain accounts are made up which the gentlemen there designate as the Engineers' final certificates. These documents are never produced to Messrs. Brogden. No details of them are furnished; and it is sought now to contend that these alleged final certificates (documents Messrs. Brogden had never seen) are final and conclusive between the parties. And then it is said, as Messrs. Brogden did not appeal against these documents, which in themselves contain the elements of the dispute (if there is a dispute between the parties), they are now too late to do so. My learned friend says that it is these documents from which an appeal lies, —these documents which never saw the light of day till yesterday. If so, if my friend's argument is right, then the six months within which the appeal is to be allowed ought only to commence from yesterday. But is it reasonable that Messrs. Brogden should be held bound by certificates made in this form ? Taking the Invercargill contract as an instance, the last certificate of the Engineer, Mr. Brunton, made in January, 1876 (the last progress certificate), shows a balance due of £3,335 16s. Bd., or, deducting the £660 referred to by Mr. Williams as paid separately, a balance of £2,675 16s. Bd., exclusive of the allowance on the omissions, which, if added, would make the total due £3,045 Bs. 9d. That certificate is not adopted by Mr. Blackett, but another is