D.—4a

28

Sir B. Stout: Yes, in reference to the fulfilment of the contract. Suppose, for example, the Treasury did not pay money if there was money due under the contract, or suppose there was a certain thing to be done and it was not done, then, no doubt, it would be a breach of contract if it was not done by Her Majesty's Ministers. Sir B. Burnside : Who stands in the place of the Queen? Sir B. Stout: No one. The Queen has her Ministers for carrying out her will. Sir B. Burnside : Then this contract, so far as the Queen is concerned, is one which is subject to Boyal favour only ? Sir B. Stout: No; because there is the arbitration clause in it. Apart from the contract itself, the Queen can only speak in legislation through her Parliament with her subjects in this colony, and if there is no statutory authority of Parliament or law she cannot speak at all. Sir B. Burnside : Your proposition to a certain extent is perfectly correct, but it does not meet entirely the point I have submitted. If every act which was done by those persons who Ministerially represent the Sovereign in the country with regard to a contract bearing upon the interests of the colony have no effect upon the contract itself, that is a proposition I am not prepared to yield to. Sir B. Stout: I put it like this : I do not deny that if the Queen, through a Minister, had broken this contract by issuing a Proclamation, for example, improperly, it would be a breach; but lam not raising that point. All lam saying is this: that for the interpretation of the contract the Court can only look at the statute. You cannot look at any contemporaneous statements of any Minister of the Crown, because that would mean that the Minister of the Crown could legislate, and could authorise the making of a contract which Parliament did not authorise. Sir C. Lilley : The difficulty which arises here is this : that the contract is not in the Act. There is authority to make the contract on certain conditions. Sir B. Stout: The point is this : that the Queen has not modified this clause in the Act except by striking out the words " or silver," and therefore we cannot look to any contemporaneous statement to explain this clause. Sir B. Burnside : I think your point must be narrowed. Ido not think you can say this is a statutory contract at all. I think what you say, and very forcibly say, is that this is an attempt to interpret a contract which is not an ambiguous one. Sir B. Stout: I say that contemporaneous statements by Ministers cannot explain Acts of latent ambiguity. Sir B. Burnside : Of course, we must wait until we see that there is latent ambiguity in it. At present Ido not see much latent ambiguity in it. That is only an indication of my opinion. Mr. Hutchison : My argument is that the interpretation is tolerably clear; but, if that be a latent ambiguity, I claim to put in evidence to remove that ambiguity. Sir B. Burnside : You can do what you like in the conduct of your case. Sir C. Lilley : When you tender the evidence we will decide whether it can be admitted. Mr. Hutchison : I would point out that this is no more a statutory contract than the lease in the case Davenports. The Queen was a statutory lease. Sir C. Lilley : You might just as well leave that alone for the present. Mr. Hutchison: I will adopt that suggestion, and rest my case at present as to subclause (c) of clause 16 of the contract, on what I submit is the only meaning of the words as they stand. I will now proceed to refer to what was done under that subclause (c). Without admitting the Proclamations as in any sense good, I may be permitted, perhaps, to refer to them as indicating the extent of obstruction the company was subjected to in its efforts to obtain the advantages of its land-grant. Here is one of the Proclamations, and I believe they are all similar. It is headed, " Land available for Selection by the Midland Bailway Company set apart for Mining Purposes," and reads:— " (1.5.) James Prendebgast, Administrator of the Government.—A Proclamation. " Whereas in the contract bearing date the third day of August, one thousand eight hundred and eighty-eight, made between Her Majesty the Queen and the New Zealand Midland Bailway Company (Limited), it is, among other things, provided that, subject to the conditions therein contained, all lands within the limits of the authorised area defined in the said contract shall be available for selection by the company with certain exceptions : And whereas among such exceptions are included 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 Proclamation 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: And whereas, in the opinion of the Governor, the lands described in the Schedule hereto are required for bond fide mining purposes and the several purposes connected therewith, and the said lands are comprised in one block containing four thousand five hundred acres : And whereas it is expedient the said lands should be set apart and defined by this Proclamation : Now, therefore, I, James Prendergast, the Administrator of the Government of the Colony of New Zealand, in pursuance and exercise of all powers and authorities enabling me in this behalf under the hereinbefore-mentioned contract or otherwise, do hereby proclaim and declare that the block of land defined and described in the Schedule hereto is set apart under the provisions of the said contract for bond fide mining purposes and the several purposes connected therewith." This Proclamation will be found in the Gazette of the 14th April, 1892. It is a sample of the rest, and we submit, in the first instance, as indicated in the argument already submitted to the Court, that all these Proclamations, not being made under the Mining Act, are void.