NOTES. 243 in his particular case, it is intolerable that he should be forced to go with- out it. In England they manage things better, on the whole, by making the unsuccessful party pay in general all the expenses of the litigation. The frequent hardships caused by the strict application of this rule, which punishes the unsuccessful party for his mistake in bringing or resisting the claim, with a severity usually in direct proportion to the doubtfulness of the matter in dispute, are well pointed out in an article in the Law Quarterly Review for October. The impracticability of a thorough application of the principle, and its real lack of fairness in many cases, causes it to be much relaxed in the actual practice of the English courts. But such a relaxation, except in cases where the successful party is morally at fault, is merely a return to the more primitive form of injustice. The only apparently effective way of removing the evils of present systems of im- posing costs is to have the State pay them, and distribute justice gratui- tously. However revolutionary such a step may seem, however great the practical difficulties of the change, it may be doubted whether the new evils that would arise would be as great as those we now endure. The people would have to pay heavier taxes ; but it would be for a purpose at least as beneficial as many of those for which government funds are at present used ; and as for the supposed increase of litigation that would be brought about by the cheapness of justice, there are, as the writer of the above article points out, two sides to the question. The man who brings suits knowing them to be unfounded can be restrained in more direct ways than by the fear of costs ; while he who threatens to bring unjust suits, or refuses just demands, in a frequently well-founded reliance on his victim's reluctance to becoming involved in the risk and expense of a lawsuit, would have no chance under the new system. Former Acquittal under a Defective Indictment. — The rule of English criminal law, that a prisoner who has been acquitted after trial on an insufficient indictment may be indicted again for the same offence, has hitherto been followed wherever the question has arisen. If there were any cases to the contrary, it may be assumed that they would be noticed in the learned opinion in the case of Ball v. U. S, 163 U. S. 662, which decides that a general verdict of acquittal is a bar to a second indictment, though the first indictment was defective. The usually accepted doctrine is founded on Vaux's Case, 4 Coke, 44, a most venerable authority. Both Lord Coke and Lord Hale, however, con- sidered that Vaux's Case was to be supported only on the ground that the judgment, which was after a special verdict, was in such a form as to leave it doubtful whether the acquittal was on the merits or for the fault in the indictment, and the presumption must be that it was for the latter cause. (See 3 Inst. 214; 2 Hale P. C. 248, 394.) Apart from the actual probability that the judgment in that case was really given upon the merits (see i Starkie Cr. PI., 2d ed., 320), it seems unjust to give the benefit of the doubt to the prosecution ; Lord Hale says, " The judgment in Vaux's Case was one of the hardest I ever met with in criminal causes." (2 P. C. 394.) In the common practice, both of that day and this, if a judgment or verdict of acquittal is for defect in the indictment that fact will appear on the face of the record. With whatever degree of reason the rule as to acquittals on insuffi- cient indictments may have been founded on Vaux's Case^ it is now
