false affidavit was sworn, was for an injunction to restrain the setting up certain defences in the action of ejectment. The steps taken in the two courts formed one proceeding for gaining possession of the lands claimed by the present plaintiff in error. The two courts were ancillary to each other, and if the proceedings to recover the lands had been commenced since the passing of the Supreme Court of Judicature Acts, 1873, 1875, one division of the High Court of Justice would have had jurisdiction to grant all the relief alleged to be necessary for the prosecution of the claim of the present plaintiff in error. In fact, when the false affidavit was sworn, there was no issue before the Court of Chancery, it was merely a preliminary application; and therefore as perjury consists in wilfully and falsely swearing a matter material to the issue, the false affidavit cannot be the subject of an indictment for perjury. If the plaintiff in error had allowed his bill to be dismissed and had taken no further steps, he would not have been criminally liable for the false statement.

[JAMES, L.J.: Cannot perjury be committed by falsely stating collateral matters?]

It must be admitted that some authority exists for holding, that perjury may be committed as to a matter not affecting the principal judgment to be given in the case: 1 Hawkins' Pleas of the Crown, bk. i, pt. 2, ch. 27, p. 430 (8th ed.). Nevertheless, as the application to the Court of Chancery and the action of ejectment formed but one proceeding, two sentences of penal servitude could not be passed. Perjury is in its nature a single offence: a conviction does not show that all the assignments have been proved; if any assignment is established, it will sustain a verdict of guilty; and the reason is that all the false statements constitute but one crime, O'Connell v. Reg. ('); in this case the whole perjury committed by the plaintiff in error consisted in representing himself to be Roger Tichborne. Perjury is a misdemeanor, and each of these terms is a nomen collectivum: Rex v. Powell(); Ryalls v. Reg. (). Felony is dis496] tinguished from misdemeanor *in this respect: Campbell v. Reg. (). In like manner it was held in Crepps v. Durden (), that a person can commit but one offence on the same day by exercising his ordinary calling on a Sunday, contrary to the statute 29 Car. 2, c. 7. By being sentenced to (4) 1 Cox, 269.

(1) 11 C. & F., 155, at p. 417, per Lord Campbell.

(2) 2 B. & Ad., 75.

(3) 11 Q. B., 781.

(5) Cowp., 640; 1 Sm. L. C., 711, 8th edition.

undergo two terms of penal servitude the plaintiff in error has been sentenced to two punishments for one offence. The verdict of "guilty of the premises charged in and by both counts," only means that the plaintiff in error has been guilty of one act of perjury. It may be that cases such as Gregory v. Reg. () can be found, in which a person convicted upon an indictment or information for misdemeanor, has been sentenced to different terms of imprisonment upon successive counts; but no case can be found in which the aggregate sentences pronounced upon different counts of the indictment or information exceed the whole punishment allowed by law for a single offence.

[Sir H. James, A.G., for the Crown: In Rex v. Robinson (), it was held that separate sentences could be passed for terms exceeding the aggregate amount of punishment allowed by statute for one offence.]

In Rex v. Robinson (2) the real decision was that a sentence of two years' imprisonment was wrong: it was a mere dictum that two consecutive sentences each of one year's imprisonment would be lawful. A person cannot be punished separately for two false statements wilfully made in the course of proceedings taken by the same party with one object. Different misdemeanors may be joined in the same indictment, but that is because they may be treated as one offence: Rex v. Benfield (3).

[BRETT, L.J.: That case is wholly beside the matter before us.]

The principle upon which different offences may be joined, can be deduced from Rex v. Johnson (). In felonies it is usual for the presiding judge to put the prosecutor to his election: Rex v. Jones (5); Reg. v. Lonsdale (°).

[BRETT, L.J.: Rex v. Jones (") is against the argument for the plaintiff in error.]

*When a defendent is found guilty of misde- [497 meanor, he is found guilty of all the misbehavior charged in the indictment, which must be deemed to be one offence.

It is necessary to consider what punishment can be lawfully inflicted for the crime of perjury: by the common law the punishment at last came to be "fine and ransom, and never to bear testimony:" 3 Inst., c. 74, p. 163. By 5 Eliz. c. 9, subornation of perjury was made punishable by the forfeiture of £40, or in default of payment, by imprisonment and standing in the pillory, and by incapacity to be a (1) 15 Q. B., 974.

(*) 1 Mood. C. C., 413. (3) 2 Burr., 980.

(†) 3 M. & S., 539, at p. 549.

(5) 2 Camp., 131.

(6) 4 F. & F., 56.

witness; and perjury itself was punished by six months' imprisonment, and by forfeiture of £20, or in default of payment, by standing in the pillory, and by incapacity to be a witness. By 2 Geo. 2, c. 25, s. 2 (1), which is the statute relied upon as authorizing the judgment in the present case, a person convicted of perjury may be sentenced to seven years' transportation, for which penal servitude is now substituted (20 & 21 Vict. c. 3, s. 2); but this statute does not warrant cumulative sentences. The additional punishment of hard labor may be inflicted for perjury under 3 Geo. 4, c. 114, but that statute is not in point for the present case. Upon these statutes it is to be observed that the sentences as passed upon the two counts are bad, because they simply direct the plaintiff in error to be kept in penal servitude: he ought to have been at least sentenced to a nominal fine and imprisonment in order to satisfy the requirements of 2 Geo. 2, c. 25, s. 2, Rex v. Price (); this oversight cannot be amended now, notwithstanding 11 & 12 Vict. c. 78, s. 5.

498] *JAMES, L.J.: The material statute in that case was 18 Geo. 2, c. 18, relating to parliamentary elections; it was the particular wording of that statute, which induced the Court of King's Bench to alter its sentence.]

This is an indictment for an offence at common law; the counts do not conclude contra formam statuti, and therefore no punishment created by a statute can be inflicted: 2 Hale, P. C., 191, 192; Bacon's Abridgment [Indictment, H. 5]; 2 Hawkins' Pleas of the Crown, c. 25, s. 116; 2 Chitty's Criminal Law, ch. 9, p. 316. At all events the law requires a compound penalty partly at common law and partly under 2 Geo. 2, c. 25, s. 2, and the presiding judge has a discretion as to the punishment under the statute, which is to be measured by the penalty which he inflicts pursuant to the common law.

(1) By 2 Geo. 2, c. 25, s. 2: "And the more effectually to deter persons from committing wilful and corrupt perjury, or subornation of perjury, be it further enacted that, besides the punishment already to be inflicted by law for so great crimes, it shall and may be lawful for the court or judge, before whom any person shall be convicted of wilful and corrupt perjury or subornation of perjury, according to the laws now in being, to order such person to be sent to some house of correction within the same county for a time not exceeding seven years, there to be kept to hard labor dur

ing all the said time, or otherwise to be transported to some of His Majesty's plantations beyond the seas for a term not exceeding seven years, as the court shall think most proper; and thereupon judg ment shall he given that the person convicted shall be committed or transported accordingly, over and beside such punishment as shall be adjudged to be inflicted on such person agreeable to the laws now in being."

By 20 and 21 Vict. c. 3, s. 2, penal servitude is substituted for transportation.

(2) East, 323.

Moreover, that statute by its terms forbids a sentence of penal servitude for a longer period than seven years to be passed. The words of a statute must be strictly followed: Everett v. Wills ('). Only one punishment for perjury can be inflicted by the court in which the defendant is convicted.

A further objection is, that the judgment is bad because the sentence upon the second count is made to begin at a future time. The court is bound to award a sentence commencing forthwith, and cannot postpone its operation until a future time.

The judgment is also bad on the ground that where a punishment is created by statute, a defendant cannot upon conviction upon an indictment for misdemeanor containing several counts be sentenced to a longer term of imprisonment or penal servitude than the maximum penalty for one offence. The Legislature has in express terms authorized this to be done in felony by 7 & 8 Geo. 4, c. 28, s. 10 ('); but no similar stutute exists as to misdemeanors. In [499 Rex v. Wilkes () there were two informations; here there is one indictment, one trial, one verdict, and one judgment; moreover, in that case the sentence was regulated by the common law, and might be of unlimited duration; it was not as in the present case created and limited by statute. The language of 2 Geo. 2, c. 25, s. 2, evidently contemplates, that only one sentence shall be passed upon a defendant who has been convicted of perjury. The writ of error in this case was granted by the former Attorney-General, Sir J. Holker, upon the authority of The People ex rel. Tweed v. Liscomb (); this was no doubt the decision of an American court; but it was there held that a defendant convicted upon an indictment for misdemeanor containing several counts cannot be sentenced to a greater punishment than can be passed for one offence. If the principle is right, it is decisive in the present case.

(1) 2 Scott's N. C., 531, per Tindal, C.J.

() By 7 & 8 Geo. 4, c. 28, s. 10: "Wherever sentence shall be passed for felony on a person already imprisoned under sentence for another crime, it shall be lawful for the court to award imprisonment for the subsequent offence to commence at the expiration of the imprisonment, to which such person shall have been previously sentenced; and where such person shall be already under sentence either of imprisonment or of transportation, the court, if empowered

to pass sentence of transportation, may award such sentence for the subsequent offence to commence at the expiration of the imprisonment or transportation, to which such person shall have been previously sentenced, although the aggregate term of imprisonment or transportation respectively may exceed the term for which either of those punishments could be otherwise awarded."

(3) 4 Burr., 2527; 4 Brown's Cas. in Par., 360.

(4) 60 N. Y., 559.

Sir H. James, A.G. (F. Herschell, S.G., Poland, and A. L. Smith, with him), for the Crown, was directed to confine his argument to the last point urged by the counsel for the plaintiff in error. The People ex rel. Tweed v. Liscomb(') was decided chiefly upon the law existing in the State of New York; the case is not an authority in an English court. Surely if two offences of equal gravity are committed, they can be both punished. It cannot be correct to argue that if a man commits perjury in the course of proceedings having one object, he cannot be punished for another perjury committed during the same proceedings. It is lawful to join distinct misdemeanors in the same indictment; and this may be done in felonies subject to the power of the court to put the prosecutor to his election: Rex v. Galloway (). The reason why before 7 & 8 Geo. 4, c. 28, s. 10, it was not possible to pass a postponed sentence for felony was, that nearly all felonies were formerly capital. Rex v. Robin500] son (') is conclusive to show that *consecutive sentences may be passed upon different counts of an indictment, the aggregate of which exceeds the punishment that may be lawfully inflicted for one offence. Gregory v. Reg. (†) and Rex v. Williams () at least establish this proposition that sentences may be ordered to commence at a future time. The object of enacting 7 & 8 Geo. 4, c. 28, s. 10, was that felonies might be put upon the same footing as misdemeanors: Reg. v. Cutbush (°). In the present case the indictment contains two counts charging different perjuries committed at different times in different proceedings upon separate oaths, and if it were not for the act creating the Central Criminal Court (4 & 5 Wm. 4, c. 36) they could not have been tried before the same tribunal, inasmuch as the venues were different; and as they could be joined in one indictment, the plaintiff in error was lawfully sentenced to a separate punishment in respect of each offence. It is not to be forgotten that the whole presentment of the grand jury constitutes but one indictment: Rex v. Heywood (). No provision in 2 Geo. 2, c. 25, s. 2, prevents the plaintiff in error from being punished for two offences.

Benjamin, Q.C., in reply: Suppose that the plaintiff in error had been tried upon separate indictments for the perjuries charged against him, upon the one indictment at the

(1) 60 N. Y., 559.

(2) 1 Mood. C. C., 234.
(3) 1 Mood. C. C., 413.
(4) 15 Q. B., 974.
(5) 1 Lea. C. C., 529.

(6) Law Rep., 2 Q. B., 379, at p. 381, per Blackburn, J.

(1) L. & C., 451, at p. 458, per Pollock, C.B.