State v. Kellam

delivered the opinion of the court.

The act of February 17, 1821, which prescribes the manner clerks may be removed from office, only permits prosecutions to be carried on by private individuals for malfeasance or misfeasance in the discharge of the duties of the *496office. The reason for this restriction is obvious. The facts charged in the petition laid before us, relates to matters distinct from and unconnected with official duty. The party complaining in this case is not, therefore, authorized to institute or conduct a prosecution. 1 Moreau’s Digest, 218.

Cases may occur, where, although there be not a breach of official duty, the court on information given, will direct the papers to be placed before the attorney of the state. But they must be strong cases. Such as induce a conviction that the person holding the office has committed acts which render it unsafe for the public that he should continue to discharge its duties. We have attentively perused and deliberately reflected on the evidence laid before us in this case, and we do not think it one which authorizes an interference. The charge is participation in an affray which ended in the death of a citizen, and for which the grand jury only found a bill for manslaughter against the principal.

It is, therefore, ordered, that the applicant take nothing by his motion.