WELLS AND FISHER v. THE DISTRICT LAND REGIS- Land Transfer-Married Woman—Transfer. When a married woman is the certificated owner of land under "The Land Transfer Act, 1885," her husband is not a necessary party to a valid transfer of the land. A person to whom a transfer is registered by the proper memorandum being made on a certificate is in the same position as if a new certificate had been issued to such person. EMILY FANNY WELLS purchased Sections 4 and 5, Block VIII., Town of Otautau, on the 17th of March, 1883; and these sections, which were under the provisions of "The Land Transfer Act, 1870," were transferred to her by memorandum of transfer, which was registered on the 29th of March, 1883. At the date of the registration of the transfer to the said E. F. Wells she was a married woman, and the transfer to her was not expressed to be for her sole and separate use. On the 6th of May, 1901, E. F. Wells, whose husband was still alive, sold the said land to the plaintiff John Fisher, and a memorandum of transfer of the same was presented at the Land Transfer Office, Invercargill, on the 25th of May, 1901, for registration. The Registrar refused to register the transfer, on the ground that, E. F. Wells being a married woman, and the land not having been transferred to her for her sole and separate use, her husband should join in or consent to the transfer to the plaintiff John Fisher. Thereupon a summons was taken out calling upon the Registrar to show cause why the transfer should not be registered without the husband joining in or consenting thereto. Lillicrap in support of the summons. T. M. Macdonald for the District Land Registrar. R. W. Hall for the husband. Cur. adv. vult. S.C. 1901. Sept. 11; DENNISTON, J. S.C. 1901. WELLS AND v. DISTRICT LAND REGISTRAR OF DENNISTON, J. :— Emily Fanny Wells appears in the certificate of title as the owner in fee-simple of the land described in the certificate of title. That is (section 39, "Land Transfer Act, 1870") made conclusive evidence that she is seised or takes such estate or interest in such land. The fact that a new certificate was not, in the transfer to her, issued to her makes no difference SOUTHLAND. to her rights (section 20, "Land Transfer Act Amendment Act, 1871"). The transfer to E. F. Wells passed no estate to her or to her husband (section 45, "Land Transfer Act, 1870"). The registration passed the whole estate to E. F. Wells. Her husband had no estate before registration, and lost nothing by registration. It is unnecessary to discuss in this proceeding whether the husband had any right to claim registration, or whether, when the transfer to the wife was tendered for registration, the Registrar could have required that her husband's consent should be obtained, or that the transfer should be expressed to be for her separate use. There is nothing in the provisions. of section 40 of the Act of 1870 limiting or qualifying the provisions of section 39, or requiring the Registrar or any other person to search or inquire into the title of any registered proprietor outside the certificate of title. The provisions of section 102 of the Act of 1870 are superseded by those of section 165 of the Act of 1885, which provides that a married woman shall, for the purpose of any dealing by her under the Act, be deemed a femme sole. The summons must therefore be allowed. Solicitors for the plaintiffs: Hall, Stout, & Lillicrap (Invercargill). Solicitor for the District Land Registrar: Crown Solicitor (Invercargill). Solicitor for the husband: R. W. Hall (Invercargill). [Reported by J. F. LILLICRAP, Esq., Barrister-at-Law.] REGINA v. SOLAN. S.C. HEARING. Criminal Law-Practice-Joinder of Counts-Order for Separate Trials- WELLINGTON. "The Criminal Code Act, 1893," Section 373. Subsection 3 of section 373 of "The Criminal Code Act, 1893, was intended to give the Court an unrestricted discretion to order counts charging separate offences to be tried separately, if for any reason whet ever it should appear to the Court that this course would be conducive to the ends of justice, subject, as to the offences which come within subsection 4, to the special provision therein contained. An order for a separate trial of each count ough to be made if it appears that there is a real danger that the evidence upon one count may wrongly be taken into consideration in dealing with another count, or that the prisoner will be seriously embarrassed in his defence. Where this is the case the question of increased expense ought not to be taken into serious consideration. An order made for the separate trial of each count where the indictment contained six separate charges of common assault, alleged to have been committed upon six different persons, at different times, extending over a period of two years. THIS HIS was an application on behalf of an accused person for an order that he should be tried upon the different counts of an indictment separately. The accused was a Marist Brother, and the charge was one of a number made in respect of the management of the Stoke Orphanage, near Nelson, an institution conducted by the Marist Brothers. The accused was one of those concerned in the management of the Orphanage. The indictment against the accused contained six separate counts charging him with common assault, alleged to have been committed upon six different persons, inmates of the Orphanage, at different times extending over a period of two years. C. P. Skerrett, T. M. Wilford, and C. Y. Fell for the accused, in support of the application. H. D. Bell and M. Myers for the Crown. EDWARDS, J.: — Cur, adv. vult. The conclusion at which I have arrived in this matter is that the intention of the Legislature expressed in subsection 3 of section 373 of "The Criminal Code Act, 1893," was that 1900. Nov. 19, 21. EDWARDS, J. S.C. 1900. REG. บ. SOLAN. the Court shall exercise an unrestricted discretion to order counts charging separate offences to be tried separately if for any reason whatever it appears to the Court that this course is conducive to the ends of justice-subject, subject, as to offences which come within subsection 4, to the special provision therein contained. Counsel for the prisoner contend that in the present case, in which there are six separate charges of common assault, alleged to have been committed upon six different persons, at different times extending over a period of two years, it will be conducive to the ends of justice that an order shall be made that each count shall be tried separately, upon two grounds-first, that if all the counts are tried together it will be extremely difficult, if not impossible, for the jury to confine their attention, in the consideration of each count separately, to the evidence applicable to that count alone, and so that the verdict upon one count may not be improperly affected by evidence, inadmissible upon that count, which has been admitted upon the other counts; and, second, that the prisoner will be embarrassed in the conduct of his defence by the multiplicity of charges and of witnesses, and by the difficulty of presenting separately to the jury his defence upon each count in a manner intelligible and easily borne in mind by them in their deliberations. Counsel for the Crown do not appear to dispute that the verdict upon one count may possibly be affected by evidence which has been given in support of the other counts, but they contend that this ought not to be taken into consideration in the exercise of the discretion given to the Court. They urge that subsection 4 shows that this consideration cannot be the test, because under that subsection it is provided that, unless there be special reasons, no order shall be made preventing the trial at the same time of any number of crimes involving dishonesty not exceeding five alleged to have been committed within six months from the first to the last of such crimes. whether against the same person or not. This provision, it is said, shows that the fact that there is a danger of the jury wrongly allowing the evidence upon one charge to affect their verdict upon another charge cannot be taken into consideration. I am not prepared to accede to this argument. As at present advised I think that if a number of charges of dishonesty were made which were totally unconnected as to time, as to the persons against whom they had been committed, and as to the circumstances of their commission, and it appeared to the Court that there was a danger that the jury might wrongly apply the evidence given upon one charge to the consideration of another charge, this would be special reason within the meaning of this subsection. It is not, however, necessary to decide this. Subsection 4 is limited to charges of dishonesty not exceeding five alleged to have been committed within six months from first to last, and the fact that special provision has been made as to these shows that they are intended to be dealt with in a different manner to other offences. The argument of counsel for the Crown upon this point really involves the extension of the limitation of subsection 4 to all crimes of whatever nature and whenever committed. It also involves the proposition that the Court, in the exercise of its discretion, must of necessity ignore the very reasons which led to the establishment of the rule in force up to the time of the Code that two felonies could not be tried together if the prisoner objected to that course. It is urged that unless this interpretation be put upon section 373, that section is really reduced to a nullity. I am unable to adopt this view. Prior to the Code, felonies and misdemeanours could not be joined together in one indictment; and if more than one felony was charged, although this was no objection in point of law, yet the practice was, upon an application by the prisoner, to put the prosecutor to his election, and to send the charges to separate trials or to quash the indictment, and this without taking into consideration whether or not the prisoner would really suffer from a trial of both charges at the same time. It was, as stated by Lord Blackburn in Castro v. The Queen(1), established by a long series of decisions that where the charges were of the nature of felony the joining of two felonies in one indictment was so necessarily unfair to the prisoner that the Judge ought, upon an application being made to him, to put the prosecutor to his election and send them to two trials. The original reason for this is given earlier that it was frequently not fair to join two felonies in one indictment, because it might embarrass a man in his trial if he were accused of several crimes at once, and frequently the mere accusing him of several crimes was supposed to tend to a probability of his being (1) 6 App. Cas. 229, at p. 244. S.C. 1900. REG. V. SOLAN. |