1. This was an indictment for a misdemeanor, and the jury, after being sent out several times, and returned to the bar, could not agree on a verdict, and were discharged by the court, without the consent of the defendant. The power of discharging a jury, in cases of misdemeanors, as in civil cases, rests in sound discretion, and is to be exercised with great caution. Where every reasonable endeavor has been used to obtain a verdict, and it is found that the jury cannot or will not agree, they must ex necessitate, be discharged. We think that the discretion of the court below was duly exercised in the present case, and that the discharge was necessary and proper.(a) 2. As to the other point, the court have doubts, and the prisoner must, therefore, plead instanter. [The prisoner pleaded not guilty, and was recognized to appear at the next oyer and terminer in Queen’s county.](b)
(a) See note to) to The People v. Olcott, infra, p. 301.
(b) Though the rest of the judges were not clear, whether this was an indictable offence, Kent, J. thought an indictment would lie. The following is taken from his MS. opinion, as to that point.
.The 91st section of the election law, declares, that if any inspector shall wilfully neglect to perform his duty, or be guilty of any corrupt misbehavior, and be thereof convicted, he shall forfeit and pay 900 pounds, to be recovered in a qui tarn suit, by an action of debt, bill, plaint or information. It is .contended, that the statute has created this offence of a wilful neglect of duty by the inspector. This is certainly a mistake. Every wilful neglect of a public trust, affecting the community, is an offence at common law. If the statute had been totallv silent as to the whole matter of this 91st section, it cannot be doubted, but that inspectors of the election would have been indictable for a wilful neglect, as well as for a corrupt execution of their office ; because, such conduct would be a public injury, and affect the community in its most essential rights. The true distinction on this subject is laid down clearly and emphatically, in Castle’s case, (Cro. Jae. 644,) and repeated and confirmed by the court of king’s bench, in the case of The King v. Robinson, (9 Burr. 803.) Where a statute creates a new offence, and inflicts a penalty for the *278doing of a thing which was no offence before, and appoints how it shall be recovered, it shall be punished by that means, and not by indictment. But the wilful neglect, as well as»the corrupt execution of a public trust, was always a crime by the common law ; and weak and miserable would be that' system of law, and that administration of justice, which would permit a public officer wilfully to neglect his official duty, and not hold him responsible as for a public offence.
Offences by officers, says Serjeant Hawkins, consist 1st. In breach of duty. In the grant of every office whatsoever, there is this condition implied by common reason, that the grantee ought to execute it diligently and faithfully. Since every office is instituted, not for the sake of the officer, but for the good of some others. Nothing can be more just, than that he who either neglects or refuses to answer the end for which his office was ordained, should give way to others who are able and willing to take care of it. An officer is liable to a forfeiture of bis office, for neglecting to attend to his duty, at all reasonable and proper times and places, and also liable to a fine. (I Hawk. b. I, c. 66, s. 1, 2.) These positions of Hawkins are cited and confirmed by Sir William Blackstone, (Com. vol. 4, 140,) and leave no doubt but that the of-fence charged in the indictment in the present case, was an offence at common law.
The indictment here concludes against the statute ; but the authorities in 2 Hawk, show that these words may be rejected, as surplusage, if the offence be at common law, and especially, if it be only a common law offence. A case in Strange, 1048, (Rex v. Luckup,) goes to show that an indictment will lie on the 21st section of the act-, in order for a conviction to found the qui tarn action. But that ease may justly be doubted. Such an indictment is too much an idle prosecution, pro forma, and may bo founded on the testimony of ths man who afterwards sues for his own benefit.