81 / 244
Sir Walter Monckton, K .C ., and Mr. Ifor Lloyd
appeared for the applicants ; Mr. Victor Russell
for the Attorney-General.
Mr. Justice Hodson, giving judgment, said that
it was common knowledge that in the matter of
the execution o f wills and other documents reliance
could be placed on the maxim“ omnia praesumuntur
rite esse acta,” but in cases o f common form grants
a safeguard was provided by the rules, and the
official had taken the point that there was no reference
to the subscription in the attestation clause, and that
it was not sufficient to rely on the word “ attest.”
It was clear that it was unnecessary in the attesta
tion clause to cover every word in section 9. o f the
Wills Act, 1837, and it was to be observed that
established books o f precedent did not do so.
The applicants had contended that the word
“ attest ” in the attestation clause was sufficient
without the word “ subscribe.” The history of
the words had been considered, and he had been
referred to Blackstone’ s Commentaries (4th ed.,
vol. 2, p. 260).
“ Attestation ” in its primary meaning involved
witnessing, and witnessing only, but when it was
applied to documents it was now a reasonable
construction o f the word to say that it involved the
act of writing. That was borne out by the language
used in certain authorities which clearly showed
that the Judges used the word attestation in that
sense.
In his opinion the word “ attest ” was wide enough
to coyer “ subscribe,” and for that reason the
wording o f the clause which had been questioned
was sufficient. He would make a declaration
accordingly.
LEGAL AID
COSTS OF CRIMINAL APPEALS
In the case of the People
v.
Daly, the President of
the High Court gave judgment on 21st April, 1950,
on an appeal to the High Court from the Taxing
Master on an objection taken by the Attorney Gen
eral to part o f the taxed costs of the appeal of
the accused against a conviction of murder. In the
Central Criminal Court, counsel and solicitors
had been assigned to the accused on the usual
terms. The accused was convicted, and counsel
and solicitors received the token costs and fees
on the scale prescribed by the Department o f Finance
in such cases.
There is no statutory or other
authority for this scale o f costs, and the State,
m fact, appear to be under no liability to make any
payment to counsel or solicitors assigned tor the
defence.
On the appeal from the Central Criminal Court the
accused successfully applied for the assignment of
the same counsel and solicitors for the purpose of
the appeal. The position in regard to the costs of
the appeal where counsel and solicitors are assigned
is governed by Section 34 of the Courts of Justice
Act 1924) and Section 5(1) of the Courts of Justice
Act 1928, which oblige the Court, on making an
order for a retrial, to order that the costs o f the
appeal and the new trial shall be paid by the State.
The same provision applies in the case of an appeal
from the Court o f Criminal Appeal to the Supreme
Court on a point o f law of exceptional public
importance. In this case, the bill o f costs included :
1
. The costs of an appeal to the Court o f
C riminal
Appeal after a first trial and conviction.
2. The costs o f a subsequent successful appeal
to the Supreme Court on a point o f law of
exceptional public importance.
3. The costs o f a new trial directed by the
Supreme Court and resulting in the conviction
o f the appellant.
The costs o f these proceedings (excluding the
first trial in the Central Criminal Court) were
ordered to be paid by the State under Section 5
o f the Courts o f Justice Act 1928. ' The total bill,
as taxed reached what the President described as
the alarming figure of £1,087, taxed by analogy to
the High Court scale, in the absence of a prescribed
scale o f costs in criminal cases. The Attorney
General objected to the Taxing Master’s certificate
on the ground that the Taxing Master was bound by
the scale prescribed by the Department o f Finance
in respect o f the original assignment. Among other-
arguments, it was submitted for the State that, when
counsel and solicitor accepted the assignment on
the appeal there was no retainer by the client, and
no right o f recovery by the solicitor against the
client for the costs o f the appeal—the sole remedy
being against the State. The President o f the High
Court rejected this argument and held that the
ordinary relationship o f solicitor and client existed,
notwithstanding the assignment, and, furthermore,
that the scale o f fees laid down by the Department
of Finance had no relevance to the taxation o f the
costs o f the appeal and subsequent proceedings
under the Order o f the Court. He commented upon
the inadequacy o f the token fees paid by the Dept,
of Finance to counsel and solicitors for the defence
o f persons charged with murder who are unable
to provide the funds for their own defence, and
refused to accept this scale as binding on the Court,
and directed that the appeal against the Order of
the Taxing Masters be dismissed.
N
ote
.—
Since the above note was printed the
Supreme Court has reversed the decision of the
President o f the High Court.
9