The Sun.
London, England, 1822-11-05 00:00:00

ALSTON AGAINST DUGC ER.

Dr. LUSHINGTON observed, that for the motion which he
had to make in this matter he had not been so fortunate as to
find any case sufficiently in point to serve as a precedent ; and
the present proceeding, therefore, was taken upon the best con-
sideration which he had been able to give to the subject, in the
absence of authority. This was originally a suit in which the
office of the Judge had been promoted against a party " for in-
decently brawling and chiding in church." It had been ap-
pealed from the Consistorial Court of Exeter; and after the
Judge of this (Arches) Court had heard and given sentence in
the matter, the costs were taxed at the sum of 2021. Bs. sd. as
against Mr. nugget. Payment was resisted ; a " signifieavit"
was issued, the party was taken up for contempt, and under
the authortty of this Court committed to prison. The proceed-
ings which had subsequently been had elsewhere, the Court
would find detailed in 5 Barnwell and Aldersey, p. 794. It ap-
peared in that report, that a motion was made to show cause
why Mr. Dugger should not be released, and that that individual
was acccordingly brought up by Habeas Carpus, on the ground
that the original cause was wrongly set forth and described in
the signfficavit, in virtue of which the commitment had been
made. This objection was held to avail ; and by the Court of
King's Bench, accordingly the significavit was quashed. Mr.
Dugger was released immediately, but the taxed costs being
still unpaid, his (Dr. Lushington's) present motion was for a
monition against that person to compel payment of them. It
seemed to them that a step which this Court had a right to en-
force could now be so enforced only by such a monition.
Sir Joiig NiciroLL saw two distinct grounds upon which
he could not grant this new monition ; the first, that it was de-
scribed as an application in the matter of Alston and Dugger.
But was there any such cause depending now in this Court ?
The Registrar replied in the negative. It had ceased to stand
out ever since 1819. The last proceeding was this—the con-
tempt was signified.
Sir JOIIN NICHOLL.—I find, then, in the very outset of this
business, that the Court is " Anctus officio." It has no such
cause before it.

Dr. LUSHINGT ON apprehended that it would be a very in-
jurious doctrine to lay down that the Court was in this instance
lanctus officio. By the Act of Parliament which gave the Court
the power of imprisoning for contempt, it was expressly pro-
vided that no release should take place but on an order of the
Judge, under the Registrar's signature, purging a party of his
contempt, and certifying his payment of costs. If in the pre-
sent case the Court was funetus qtricio, in another, a party once
committed for contempt might remain in custody for ever; for
a Court that was fender qtficio could make no such order.
-Sir Jona: NICIIOI.T. said, that the next reason for his not
granting a fresh monition was, that the application rested mere-
ly on the Learned Counsel's own statement—correct as no
doubt that statement was : but it was not supported by a sin-le
affidavit. His own impression however was strong, that the
Court was here /ouches officio.
Dr. LUSITINGTON suggested that the Court, by reason of
. the very wording of the Act, could not be so ; and begged to
observe on the peculiar hardship of his client's case, if the
Court should ultimately refuse its monition. This was not a
Court of Record, and he therefore could have no action at law
for his debt, but must lose his 2001.
The COURT said it would hear the matter, if the Learned
Counsel wished to bring it forward in a more regular manner.