Doe ex dem. Cheever v. Roe

By the Court. Benning, J. delivering the opinion. Can an administrator sell land by agent, in this State ? The general opinion is, that delegatus non potest delegane; but this principle applies only to cases in which, the thing to be done by the agent, is that kind of thing, in the doing of Avhich, there is room to the doer, for the exercise of judgment and discretion. By the common law, there Avas room to the executor with a power of sale, for the exercise of judgment and discretion in he sale. He might sell at public sale, or at piivate sale ; he [602] might elect the place, the day, the hour, of sale. Hence it was, that, by the common law, he could not delegate his power of sale to an agent Sug. Pow. Ch. 5; Sec. 1; Wms. Executors, part iii., Book 1, Ch. 1, Stor. Ag. Sec. 13. But by our statute, there is no room to an administrator for the exercise of this sort of discretion and judgment in his sales. The statute says, that his sales are to be “at public auction, and on the first Tuesday of the month, between the usual hours of sale, at the place of public sales in the county where such real estate “ may lie.” The administrator “first giving sixty days notice thereof, in one of the gazettes of this State, and at the door of the Court House, in the county where such sales are to be held.” Cobb’s Dig. 323. An administrator, in this State, has no more discretion in his sales, than a Sheriff has in his. And a Sheriff has power to appoint deputies for all purposes. It is the common practice in this State, for administrators to sell by auctioneers, and the validity of such sales has never, I believe,been questioned. Indeed, it is essential to the performance of his duties, that an administrator should have the power to appoint agents within certain limits. There are cases in which, he must have an overseer or stock-keeper, a custodian of property, a factor, a physician, a lawyer. Upon the whole, my opinion is, that by the law of this State, an administrator can sell land by agent. Hence I go for reversing the judgment of the Court below. Judgment reversed