r>.—4a

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Sir B. Stout: The Queen ? Mr. Hutchison : The Queen and the company. Of course, if my contention already submitted as to the interpretation of subclause (c) of clause 16 be accepted as the correct interpretation, I have nothing further to say on the subject; but if that interpretation be challenged, I assume the passage may be said to contain a latent ambiguity, and to allow of parol evidence being given as to the meaning attached to it by the parties themselves, with a view of throwing light on the clause, and showing that the interpretation that I have submitted was in fact the intention of the parties. Sir B. Stout: Who do you say are the parties ? Mr. Hutchison : The Queen and the company. Sir B. Stout: Do you propose to give evidence of what Ministers said ? Mr. Hutchison : Yes, and the acts they did, to elucidate the latent ambiguity of the words in the contract. Sir B. Stout: What is the remedy under the arbitration clause of the contract, you ask ? Mr. Hutchison : The remedy is indicated. Sir B. Buenside : I know what the remedy is ; the question is, what can be done ? Mr. Hutchison : Nothing is to be done in the way of proceeding on the award until the General Assembly has an opportunity of providing money. Sir B. Burnside : Look again. Sir B. Buenside :It only says that amount shall be taken. It was not to be taken until the Government shall have an opportunity. Mr. Hutchison: Yes, as early as possible. Sir B. Buenside : What does that mean —the ordering of the payment of the money ? Mr. Hutchison : I should say it means that, if money is awarded to the company under these proceedings, the company shall take no step to enforce the award until the General Assembly has had an opportunity of appropriating the amount. If that opportunity is allowed to pass without provision being made, steps to levy the amount as upon a judgment would be necessary ; but under the law of the comity of nations the Government would almost necessarily see that provision was made to satisfy an award made against it. It seems to me to be pretty clear that the Government is the representative of the Queen, inasmuch as the Government will do what the Governor is expected to do. Sir C. Lilley : The Governor has to send down his recommendation by message recommending an appropriation. Is the Queen in the position of an ordinary suitor here? Mr. Hutchison : She has submitted herself to arbitration. Sir B. Buenside : Is the party to this suit resident in England? Mr. Hutchison : No ; she resides all over the Empire. Sir B. Buenside : She resides all over the Empire, but is at Balmoral at present. Mr. Hutchison: How we shall enforce the award is a matter for future consideration; at any rate, the company has put itself in the position of being content with that prospect. lam now going to refer to and open the evidence which we would call of acts and declarations by the parties, showing what is the meaning attached to the words of subclause (c) of clause 16. Sir B. Stout: How do you propose to make declarations—by whom? Mr. Hutchison : By the Agent-General, by the Ministers in office at the time of the making of the contract, and by the evolution of the contract itself through its various stages from 1884. Sir C. Lilley : Clause 16, subsection (c) : " All lands which from time to time in the opinion of the Governor are or may be required for bond fide mining purposes, and the several purposes connected therewith or incidental or conducive thereto, and which lands shall from time to time be set apart and defined by Proclamations to be issued in that behalf ; but no more than ten thousand acres shall be so set apart or proclaimed in one block at any one time; and the lands so set apart and proclaimed from time to time shall not in the aggregate exceed seven hundred and fifty thousand acres." Mr. Hutchison : I propose now to open evidence of the declarations and acts of the parties towards removing the latent ambiguity of this subclause (c) of clause 16, so as to show what was the meaning intended by them to be given to it. The authority for this course is, I submit, clear, assuming, of course, that there is a latent ambiguity. Storey, in his Commentaries, at page 805, says that " if there be a declaration by one party, assented to by the other, of the meaning intended to be given to certain terms and clauses when such term or clause is ambiguous, parol evidence of such fact may be given"; and in the same connection, further on, "in the case of a latent ambiguity the actions of the parties previous to and contemporaneous with the contract are admissible to explain it." That is the proposition which I claim to be allowed to support in connection with subclause (c) of clause 16, by referring to the acts and declarations of Ministers and officials of the Queen prior to and contemporaneous with the making of the contract. Sir B. Stout : I may point out that the interpretation of this contract means an interpretation of the statute itself; it is the same thing. This contract is by virtue of a statute. We will suppose, for example, there is a latent ambiguity—l can see none —how can the interpretation of an Act by Ministers of the House be made when the Act is passed ? Why, we are not allowed to look at the marginal notes. We could abolish all Acts if we could get in the speeches of those who were present. The Court cannot look at that or listen to it. So far as the Queen is concerned, she cannot make a contract except by a statute. There must be a statute to do it. Where is the statutory power that you are to take the interpretation put upon it by Ministers or Agents-General or anybody else ? If it was put in writing by the Agent-General it would not be binding on the Queen. Something outside a statutory power, that would not be binding; and how can it be said that the talk prior to the contract or the statute being passed can be made a practical statutory statement ? I submit that this is laying down not only a new principle of law, but an exceedingly peculian thing if that was to be admitted for a moment. The Act under which this contract is made is ar-