The motion was made on Saturday last, and, on proving the publication, the rule taken, rather as of course. Neither the court, nor any officer of the court, directed the application, or dictated the title of it. It was moved and entered by the counsel for Duane at their peril; and if an irregular proceeding, the defendant must be discharged. On this point I have no hesitation. The law is, and so is the practice and reason of the thing, that proceedings against a party or some third person for a supposed contempt in the course of a cause, must be entitled as in the civil cause: for until the rule is made absolute, or an attachment is issued, there is no suit between the United States and the person charged with a contempt. When the court have adjudged the party in contempt, they direct an attachment, and the future steps are all on the criminal side. Independent of the general propriety of this method, there is a special reason why the procedure should be as between the parties, until the contempt is established; namely, that the party charged may have his costs, if the motion is rejected or the rule refused. Were the United States made the prosecutor in the first instance, the vexation would be unredressed.
I consider the cases cited, as fully settling the point, and on the best reason. There is a rule, and we must adhere to it, and were it now to be first settled, we could not make a better. The proceedings, therefore, in this case being mis-entitled, the party coming in under them, may avail himself of the irregularity, and I think, ought to be discharged.
I look upon the law as stated by the defendant’s counsel, to be settled. The rule is taken by a party in a civil cause, and by him proceeded on with a view to obtain an attachment out of this court, by undertaking to prove that the person he proceeds against, has committed a contempt. The person taking the rule must entitle it as a proceeding in the cause, in the prosecution or pending of which the contempt is alleged. Until the attachment issues, the proceedings must be entitled on the civil side—Let the defendant be discharged from the rule with costs.
Mr. Dallas then moved for another rule to show cause to-morrow, which was ordered.