LUNDON AND WHITAKER CLAIMS.

15

a.— No. 6.

The whole controversy turns upon the meaning of the term " interlocutory orders." As the class of orders really meant must of necessity be orders which conclusively ascertain the title, it is at once apparent that interlocutory orders, in the sense of section 27 of " The Native Lands Act, 1865," cannot be intended. "'lnterlocutory" orders are there properly opposed to "final" orders. But, of necessity, the orders referred to by subsection (1) must be, in substance, final, and fit to form a basis of title. 19. Mr. Whitaker, as counsel for the claimaKis, has pointed out that there exists a class of cases in which orders, virtually final as regards the ascertainment of title, may need to be followed by other judicial proceedings in the Native Lands Court. He has satisfied us that the words " subject as hereinafter is mentioned," with which the 25th section of " The Native Lands Act, 1865," begins, have reference to the provision of section 71, under which an order for a certificate may be made before survey of the lands which are the subject of the claim. As, under section 26, no certificate can issue without an accurate plan of the land which it comprises, drawn thereon or annexed thereto, he contends that an order ascertaining title under section 71 is correctly styled " interlocutory," and that the words " or interlocutory orders," in subsection (1), should be deemed to have reference exclusively to this class of cases. 20. But it appears to us that this construction is open to insuperable objections. In the first place, the provision that the dates at which grantees shall be deemed to have become entitled, shall be " the dates of the certificate or interlocutory orders," is quite general in its terms. The alternative appears meant to apply to every case, the language supposing that in every case there is, besides the certificate, some anterior proceeding, referred to as an interlocutory order, and that the vesting of the legal estate will relate sometimes to the date of the certificate, sometimes to the date of the anterior proceeding referred to. There is nothing whatever to indicate that the orders referred to are of a special character, issued only in certain exceptional cases. Had such a class of exceptional cases been really iti view, the Legislature would have particularly mentioned them. Secondly, it being admitted, on all hands, that by interlocutory orders it is necessary to understand some kind of order which finally ascertains the title, this construction supposes a particular class of interlocutory orders to be singled out as determining the date of ante-vesting, on the specific ground that, notwithstanding their interlocutory form, they are virtually final. Why, then, it may be asked, should not orders final in form as well as in effect be equally taken as the commencement of the legal title ? They possess the very quality of finality, which is the supposed ground of selection in the case of the former class ; and that they arc final, not interlocutory in form, can constitute no rational ground for their exclusion, but, on the contrary makes them better termini. No answer can be given except that such orders, not being interlocutory in form, are excluded by the letter of the law; and the Statute is supposed to have most absurdly made the interlocutory quality which might be a ground for rejecting these orders as the date of ante-vesting, the very ground for their selection. We are bound to reject, if we can, a construction which, whilst it unduly limits the language of the provisions to an exceptional case, evidently never contemplated, imputes to the Legislature the creation of an irrational distinction ; and we are of opinion that a preferable construction is open to adoption. 21. It has already appeared that, in the ordinary course of business in the Native Lands Court, there is a proceeding which definitely ascertains the title, and forms its actual root. This proceeding is the order for a certificate; and if, in any probable or even possible sense, this order can be regarded as interlocutory, albeit not such in any proper sense, nor treated as such in the Native Lands Acts, this it must be which is really meant by the clause under consideration. Brought to this point, there is little difficulty in the matter. Orders for a certificate, as has already been observed by Mr. Justice Johnston, may be regarded as interlocutory in reference to the whole course of proceeding, which begins by claim under section 21, arid ends in the issue of a certificate, or, it may be said, of a Crown grant. W Te decide, therefore, that these are the orders referred to by subsection (1). 22. To this construction it may still be urged as an objection, that if in every case the date of the order for a certificate were meant to be the date of ante-vesting, the mention of the date of the certificate itself is meaningless. It must be granted that, on the construction which we adopt, the words in question are redundant, and it is an acknowledged principle in the construction of Statutes, that distinct meaning must if possible be found for every word. It is not, however, a fatal objection to a suggested construction, that certain words appear to be superfluous. The words in question, though redundant, are not meaningless. W Te adopt, on this point, the suggestion of the Attorney-General. The Legislature must be supposed to have, in the first place, contemplated the date of the certificate as the true date at which the title vested, and this it would be whenever the certificate bore even date with the order. In the latter branch of the alternative, the Statute must be considered as providing for the relation of the legal title to the date of the order in all cases in which the order bears an earlier date than the certificate. The dates of two documents being named, the general intention of the Legislature, indicated by section 26 of the " Crown Grants Act, 1866," must entitle the persons interested to have the title carried back to the date of the earlier document, in those cases in which the dates do not coincide. The construction thus put on the Act is, no doubt, highly artificial; yet it does as little violence to the words as any which has been, or can be, suggested. And.