The opinion of the Court was delivered by
Manning, J.Raymond Terence was a witness in a cause on trial before the respondent Judge, and was committed for contempt in this, “ that lie refused to testify truthfully to the questions propounded to him by counsel and by the court and this without leading him to accuse himself of a crime.” He was sentenced to imprisonment for thirty days and to pay a line of twenty-live dollars Ho has obtained from us a writ of certiorari under which the proceedings are now before ns for review.
That this writ may be used for the purpose for which it is now invoked was settled in the De Buys case, 32 Ann. 1256, which has since been adhered to and has now passed beyond dispute.
The judge bases his action on art. 136 of the Code of Practice wherein it is provided, if a witness refuse to answer any question put to him except such as might lead him to accuse himself of a crime, the court may line and imprison him.
It is not charged or pretended that this witness refused to answer any question of any kind. On the contrary it is expressly alleged that he did answer the questions put to him by the counsel and the court, but that ho did not answer them truthfully.
Refusing to answer a question that a witness is bound to answer is contumacy and is punishable as a contempt. Answering such question untruthfully is perjury, the punishment of which is remitted to the regular action of the criminal law through the established forms of criminal proceedings, i. e. by indictment or information followed by a trial. An act may be at once a contempt of court and a violation of the criminal law, for example an assault and battery committed in open *315court would be punishable as a contempt and also by prosecution.. The overt physical visible act distinguishes it from perjury.
The law gives to every judge the power to punish for contempt-. It is necessary for the orderly police of the court, but to decide that the-testimony of a witness is false and to inflict summary punishment upon him without atrial is repugnant to the orderly administration of justice and subversive of our ideas of right.
Where flagrant perjury has been committed, a nisi prius judge has not infrequently directed the attention of the prosecuting officer to the man and his offence and has even ordered his committal until the criminal machinery could be set' in motion for his trial. But the respondent' dispensed with any form of trial, determined the guilt of the offendeiwithout accuser or witness, and summarily punished him without an opportunity of defense.
It is therefore ordered and decreed that the order complained of by tlie relator is annulled and vacated.