The opinion of the Court was delivered by
Willard, A. J.The indictment must be tested by Section 29 of Chap. CXXXI of the General Statutes, (p. 729,) which is as follows: “If any Clerk of the Court of Common Pleas and General Sessions, or Sheriff, or Judge of Probate, or Register of Mesne Conveyance in this State, shall wilfully fail or neglect to discharge all the duties and perform all the services which are required of him by law, in addition to his liability to the party aggrieved, he shall be liable to be indicted as for a misdemeanor, and, upon conviction thereof, shall be fined, at the discretion of the Court, not exceeding five hundred dollars.”
The General Statutes, of which the Section just quoted is part, went into effect February 10th, 1872.—Gen. Stat., Chapter CXLYI, Sec. 2, p. 766. The indictment, as well as the testimony given at the trial, fixes the commission of the offense in March, 1872.
As the Circuit Court held that the indictment was supported by Section 27 of Chapter CXXXI of the General Statutes, (p. 729,) it will be necessary, before proceeding to consider it in its relations to Section 29, to point out the considerations that prevent its being sustained under Section 27. '
Section 27 is as follows: “ If any public officer hereafter to be elected or appointed, whose authority is limited to a single election or judicial District, shall be guilty of any official misconduct, habitual negligence, habitual drunkenness, corruption, fraud or oppression, he shall be liable to indictment, in which the privilege of traverse shall not be allowed, and, upon conviction thereof, shall bo fined not exceeding one thousand dollars, and imprisoned not exceeding one year.”
When the charge is, in effect and substance, neglect of any official duty imposed by law on the officers enumerated in Section 29, the indictment must be founded upon, and must conform to, that Section. This conclusion results from a comparison of the two Sections, as they are to be read together as integral parts of Chap-’ ter CXXXI.
If these two Sections could be regarded and treated as parts of a new law, taking original effect from the date when the General Statutes, as such, became operative, the construction would be without serious difficulty. The fact is, however, that Section 27 is *124taken without change from the “Act for the punishment of official misconduct of District officers,” passed in 1829, (5 Stat., 390,) while Section 29 was- taken from the Act of 1837, (6 Stat., 577,) and amended in important particulars on its adoption as part of the General Statutes. The amendment consisted in striking out the names of certain officers then existing, but now abolished by the CoDstitutio'n and laws, and inserting the name of Judge of Probate, and also changing the phraseology of the body of the Section as to a matter not important to be considered at the present time.
/But whether we consider these Sections as occurring in two distinct statutes, successive in the order of time, or as parts of a single statute, a conclusion arises which will be sufficient for the purposes of the present case. It is clear that the cases embraced in Section 29, the last adopted, as it regards the class of persons enumerated under that Section, cannot be prosecuted under Section 27. The penalties imposed by the two Sections differ essentially. As they cannot be treated as cumulative, that prescribed by Section 29 must displace that prescribed by Section 27, as it regards all offenses embraced within Section 29. In this respect a repugnancy exists between them that tends to the conclusion that the Legislature, in adopting the statute, of which Section 29, in its original form, constituted a part, either regarded the case of a neglect of official duty as not embraced in Section 27, or that they deemed the punishment prescribed by Section 27 as in excess of what was called for in the class of cases to which Section 29 relates. Both of these conclusions tend to the same result, namely, an interpretation of the two Sections by which failure to perform official duties will be punished under Section 29 exclusively.
Under this view the indictment is defective in alleging, conjointly, neglect of official duty in a particular case, and misconduct of too general a character to form a subject of indictment under Section 29. This is obvious, for, under a verdict of guilty, the Court cannot know whether the penalty imposed by Section 27 or that by Section 29 is applicable to the case.
If, however, it was competent to reject as surplusage all that is stated in excess of what properly belongs to an indictment under Section 29, still the’indictment would be fatally defective, for it does not lay a specific duty imposed by law, and aver its wilful neglect. Indeed, it is doubtful, on the face of the indictment, whether the duty of which neglect is alleged did not arise on a *125mere trust in virtue of the acceptance of certain funds applicable to a particular purpose.
The proper mode of procedure may be illustrated by the case of an indictment under Section 46 of Chapter .XX of the General Statutes (p. 166), where it is made the duty of the Probate Judge to deposit in bank all moneys not intended for immediate distribution. To convict under Section 29 for a default under the Section just referred to, it would be necessary to set forth a case under that Section where the duty of making such deposit was absolute, and to aver its willful neglect.
It is also clear that the'evidence did not support the indictment, regarding it as under Section 29. The failure of the Court to make an order of distribution is not an indictable offense, but must be corrected on appeal. There is no'.absolute legal duty to pay out moneys to parties independently of the existence of an order determining their rights, nor can a neglect of that character be regarded as embraced within Section 29.
It must be a clear official duty imposed by the law governing the office to constitute a case for conviction under Section 29.
The judgment below should be reversed.
Moses, C, J., and Wright, A. J., concurred.