an adjournment. There is obvious propriety in such a course; and the law recognizes the authority of the officer, in the exercise of a sound discretion, to change both the time and place of the sale, when for any reason it cannot, consistently with the rights of the parties or the performance of his official duties, take place as originally appointed: Phelps v. Conover, 25 Ill. 309; Thornton v. Boyden, 31 Ill. 200; Coriell v. Ham, 4 G. Greene (Iowa), 455, 61 Am. Dec. 134; Russell v. Richards, 11 Me. 371, 26 Am. Dec. 532; Tinkom v. Purdys, 5 Johns. 345; Mordecai v. Speight, 14 N. C. (3 Dev.) 428, 24 Am. Dec. 266; McCormick v. Meason, 1 Serg. & R. 92; Hollister v. Vanderlin, 165 Pa. St. 248, 44 Am. St. Rep. 657, 30 Atl. 02; Aldrich v. Wilcox, 10 R. I. 405; Jewett v. Guyer, 38 Vt. 209; Pair v. Storm, 37 Wis. 247; Richards v. Holmes, 59 U. S. (18 How.) 143, 147. See, too, Magwood v. Butler, 1 Harp. Eq. (S. C.) 265; Hillard Bros. v. Wilson, 76 Tex. 180, 13 S. W. 25; Max Meadows Land etc. Co. v. McGavock, 96 Va. 131, 30 S. E. 460. Some of the older authorities say that in case the property will be sacrificed, he should return that it was not sold for want of bidders, and wait for a venditioni exponas: Reynolds v. Nye, 1 Freem. Ch. (Miss.) 462; Conway v. Nolte, 11 Mo. 74; United States v. Drennin, 1 Hempst. 320, Fed. Cas. No. 14,992; and probably this was the rule of the common law, the venditioni exponas, in such a case, being interpreted to mean, "Sell for the best price you can obtain": Reynolds v. Hoxsie, 6 R. I. 463; Leaders v. Danvers, 1 Bos. & P. 359; Keightley v. Birch, 3 Camp. 521.

"The practice has been,'' says Chief Justice Ames in Reynolds v. Hoxsie, 6 R. I. 463, 467, "for officers charged with executions, for good cause, to adjourn sales of property, real or personal, levied upon by them, duly advertising the change of the time of sale, that there may not be a failure for want of buyers. Such power of adjournment was always deemed incidental to the power to sell; the whole of which was intrusted by the execution, under the law, to the officer. No other order was ever issued to him than the execution, a venditioni exponas being wholly unknown to the simplicity of our practice. Within the limits of the law, the officer exercised his discretion with regard to the time of sale; and as no positive publication of the necessary power of adjournment existed upon the statute book, adjourned the sale from time to time, as the exigencies of the case required. If he could not from storms or accident, reach the place of sale; if, reaching it, from want of buyers, he could not sell, or could not sell except at a great sacrifice; in fine, if from any cause, consistently with the performance of his general duty under the execution, the sale could not take place at the time originally appointed, he appointed another time at which it might. Nor was the practice peculiar to ourselves; but in other states this same incidental power was not only possessed, but in proper cases required to be exercised, by sheriffs charged with sales

upon execution, as a part of their duty”; citing, among other cases, Warren v. Leland, 9 Mass. 265; Lantz v. Worthington, 4 Pa. St. 153, 45 Am. Dec. 682.

And this power to adjourn is not limited by a statute providing that "in case of accidents or extraordinary storms or tempests,'' the sheriff may postpone the sale: Aldrich v. Grimes, 14 R. I. 219. But a sheriff cannot, for his own gain, bind himself by contract not to sell for such a period as will prevent him from obeying the command of his process: Perkins v. Proud, 62 Barb. 420.

An officer may withdraw property offered for sale at public outcry after bids have been received and cried, but before it has been knocked off to the highest bidder: Tillman v. Dunman, 114 Ga. 406, 88 Am. St. Rep. 28, 40 S. E. 244; Miller v. Law, 10 Rich. Eq. (S. C.) 320, 73 Am. Dec. 92. See, further, "Validity and Effect of Adjourn ment," post.

b. In Mortgage, Probate, Tax, and Other Sales.-The power of adjournment as above enunciated, which perhaps is applied with greatest frequency to execution sales, seems applicable, within proper bounds and limitations, to all classes of sales which are judicial in their nature as distinguished from those purely private and voluntary. An executor or administrator may lawfully postpone a sale of his decedent's property if in so doing he exercises a sound discretion and acts with a view to the best interests of the parties: Norris v. Howe, 15 Mass. 175; Noland v. Barrett, 122 Mo. 181, 43 Am. St. Rep. 572, 26 S. W. 692; Gillespie's Estate, 10 Watts (Pa.), 300; Lamb v. Lamb, 1 Spears Eq. (S. C.) 289, 40 Am. Dec. 618. And the court or officer in charge of a mortgage foreclosure has a discretion, for good cause shown, to adjourn the sale: Kelly v. Israel, 11 Paige, 147; Collier v. Whipple, 13 Wend. 224, 229; Angel v. Clark, 47 N. Y. Supp. 731, 21 App. Div. 339; Farmers' Loan etc. Co. v. Oxford Iron Co., 13 Fed. 169; Bound v. South Carolina Ry. Co., 55 Fed. 186; Blossom v. Railroad Co., 70 U. S. (3 Wall.) 196. So has a trustee in a trust deed or a mortgagee in a mortgage containing a power of sale: See the monographic notes to Tyler v. Herring, 19 Am. St. Rep. 291; Houston v. National etc. Loan Assn., 92 Am. St. Rep. 588-590, where this aspect of the subject under consideration has heretofore engaged our attention at considerable length. And the officer conducting a tax sale, unless the statutes leave him no discretion, has power to make an adjournment: Wells v. Austin, 59 Vt. 157, 10 Atl. 405. A statute directing a collector of taxes to continue the sale from day to day as long as there are bidders, or until the taxes are paid, does not prevent him from adjourning over Thanksgiving Day: Lynch v. Donnell, 104 Mo. 519, 15 S. W. 927. Ordinarily, however, statutes providing that tax sales may be continued from day to day until completed appear to prohibit any other adjournment except from day to day: Collins v. Sherwood, 50 W. Va. 133, 40 S. E. 603. For decisions bearing on the question

of adjournment of tax sales under the special statutes of various states, see Spain v. Johnson, 31 Ark. 314; Clark v. Thompson, 37 Iowa, 536; Phelps v. Meade, 41 Iowa, 470; Chandler v. Keeler, 46 Iowa, 596; Houghton County v. Attorney General, 41 Mich. 28, 1 N. W. 890; Shell v. Duncan, 31 S. C. 547, 10 S. E. 330; Wood v. Meyer, 36 Wis. 308.

C. Persons Who may Adjourn Sales.-The law is not entirely clear as to whether the person upon whom the law casts the duty to conduct a judicial sale can delegate his authority to adjourn it. Probably there is no doubt that the discretion to adjourn cannot be delegated; but if the discretion has been exercised, and an adjournment determined upon, then the duty of making the announcement thereof becomes merely ministerial, and perhaps may be intrusted to another. However, the case of Wolf v. Van Metre, 27 Iowa, 348, throws doubt on this latter proposition, for it is there held that the sheriff cannot authorize the attorney of the plaintiff to adjourn an execution sale. But in Hicks v. Willis, 41 N. J. Eq. 515, 7 Atl. 507, it is decided that an executor or administrator, ordered by the court to make a sale of land, may lawfully adjourn the sale through the instrumentality of an attorney or agent. The maxim, "Delegatus non potest delegare," is held to have no application, for there is no delegation of trust or confidence in committing to an attorney or agent the performance of the ministerial act of announcing an adjournment in the stead of the trustee. See, in this connection, the note to Gage v. Dudgeon, 93 Am. St. Rep. 615.

The lien of an execution may be defeated or lost, so it has been held, by an order of the plaintiff's attorney to postpone the sale, and to allow the property to remain in the possession of the defendant, notwithstanding the attorney had no express authority or instructions from his attorney to make such order: Albertson v. Goldsby, 28 Ala. 711, 65 Am. Dec. 380. And when the return of an officer recites that an execution sale was adjourned from time to time by the direction of the plaintiff's attorney, the court will not say that the adjournments were not for "good cause" within the meaning of the statute: Frazee v. Nelson, 179 Mass. 456, 88 Am. St. Rep. 391, 61 N. E. 40.

II. Grounds for Adjournment.

a. What Constitute. Whether or not adequate and sufficient reasons exist for the postponement of a judicial sale is, as has been seen, a question to be decided by the officer in charge in the exercise of a sound discretion. The first grounds for adjournment that naturally suggest themselves are insufficiency of the attendance and inadequacy of the bids. But the fact that only one bidder is present does not make an adjournment imperative; and, if the sale proceeds, it will not ordinarily be set aside: Gilbert v. Watts-De Golyer Co., 169 Ill. 129, 61 Am. St. Rep. 154, 48 N. E. 430; Equitable Trust Co. v. Shrope, 73 Iowa, 297, 34 N. W. 867; Learned v. Geer, 139 Mass. 31,

29 N. E. 215; State v. Johnston, 1 Hayw. (N. C.) 293; Power v. Larabee, 3 N. Dak. 502, 44 Am. St. Rep. 577, 57 N. W. 789. Compare Ricketts v. Unangst, 15 Pa. St. 90, 53 Am. Dec. 572; McMichael v. McDermott, 17 Pa. St. 353, 55 Am. Dec. 560. Yet if there are no bids, an adjournment is proper: Sitzmon v. Pacquette, 13 Wis. 291. This was an administrator's sale, and the adjournment was made by public announcement to the next day at the same place and hour. In case the amount of the bid at an execution sale is merely nominal, the officer should adjourn: Roseman v. Miller, 84 Ill. 297. See, also, the next paragraph. The postponement of a sheriff's sale should be made, even against the objections of the plaintiff, if necessary to prevent a sacrifice of the property: McDonald v. Neislon, 2 Cow. 139, 14 Am. Dec. 431. When land is sold subject to redemption, this gives the debtor a remedy, and is considered a strong circumstance in favor of upholding the sale when attacked because of the inadequacy of the amount bid: Equitable Trust Co. v. Shrope, 73 Iowa, 297, 34 N. W. 867.

If, because of the inclemency of the weather, a mortgage foreclosure sale is adjourned from the place where it was opened to a building some six hundred feet distant, and there completed about half an hour later, the persons in attendance having repaired to the place of adjournment, and there being no evidence that anyone was prejudiced, the sale is valid: Morrissey v. Dean, 97 Wis. 302, 72 N. W. 873. And it is the duty of administrator to adjourn a sale of his decedent's property if the day appointed is rainy and inclement, only a few persons attend, and the bids do not exceed one-half the value of the property: Beaubien v. Poupard, Harr. (Mich.) 206.

When the day appointed for a judicial sale falls on general election day, this is ground for adjournment: Doe v. Bradley, 10 N. C. (3 Hawks) 16. But the existence of war, as a general calamity, is no ground for postponing a sale: Astor v. Romayne, 1 Johns. Ch. 310. Nor should an adjournment be made on the suggestion of a person, not appearing to be a party to the litigation, on the ground that it is to take place on Saturday, and his religious faith does not permit him to do business on that day: Pewabic Min. Co. v. Mason, 145 U. S. 349, 12 Sup. Ct. Rep. 887. The fact that the sheriff has heard, or has been unofficially advised, that there is some adverse claim of ownership to the property to be sold under execution, does not authorize him to decline to proceed with the sale: Gilbert v. Watts-De Golyer Co., 169 Ill. 129, 61 Am. St. Rep. 154, 48 N. E. 430. Nor does the fact that the widow, by spreading false reports to the effect that the title of the estate is subject to her dower, has embarrassed a previous attempted sale by the administrator, and probably will again do so, constitute a sufficient cause for suspending the surrogate's order of sale: In re Lawrence, 1 Redf. (N. Y.) 310.

Where the plaintiff in execution refuses to pay the costs, after having bid off the real property sold, the sheriff may consider the Am. St. Rep., Vol. 97-42

sale a nullity, and adjourn it to another day: Reese v. Dobbins, 1 Iowa, 282, 1 N. W. 540. But if the defendant in execution makes no demand of the sheriff to have his fees taxed until the time when the sale is to take place, the officer need not postpone the sale in order to have them taxed: Van Gelder v. Van Gelder, 26 Hun, 356. See, further, in this connection, "Validity and Effect of the Adjournment," post.

III. Duty and Liability of the Officer.

The law does more than invest an officer with a discretion to adjourn a judicial sale of which he has the control; it imposes upon him the positive duty to adjourn, when the exigencies of the case require an adjournment, and holds him answerable for a dereliction of this duty: Todd v. Hoagland, 36 N. J. L. 352; Birbeck etc. Loan Co. v. Gardner, 55 N. J. Eq. 632, 37 Atl. 767. Of course, it is not an abuse of discretion in all cases for an officer to refuse to make an adjournment: Connick v. Hill, 127 Cal. 162, 59 Pac. 832; Cline v. Prall, 27 N. J. Eq. 415. And his discretion, in the absence of bad faith, should be liberally considered: Todd v. Hoagland, 36 N. J. L. 352. It must be exercised with a fair and impartial attention to the interests of all parties concerned. He should not act capriciously, nor without cause, nor from improper motives. The law exacts no more than good faith and good judgment, but these cannot be dispensed with: Swortzell v. Martin, 16 Iowa, 520.

A sheriff who arbitrarily postpones an execution sale against the objection of the plaintiff, when there are several bidders present, one of whom will bid sufficient to prevent a sacrifice of the property, acts without authority, and is liable to the plaintiff for such damages as he sustains: Gilbert v. Watts-De Golyer Co., 169 Ill. 129, 61 Am. St. Rep. 154, 48 N. E. 430. So the postponement of a sheriff's sale by order of a person having no authority will subject the officer to liability, unless he can show that the judgment creditor acquiesced in the order: Governor v. Vanmeter, 9 Leigh, 18, 33 Am. Dec. 221.

IV. Notice and Advertisement of the Adjournment.

a. Necessity and Sufficiency of. There is no little difference of judicial opinion as to what notice must be given of the time and place to which the adjournment of a judicial sale is made. Many authorities hold that for an adjourned sale the same notice is required as for the original sale, both as to manner and to time: Thornton v. Boyden, 31 Ill. 200; Givan v. Doe, 5 Blackf. (Ind.) 260; Patten v. Stewart, 26 Ind. 395; Crocker v. Watkins, 4 Mart., O. S., 540; Montgomery v. Barrow, 19 La. Ann. 169; Enloe v. Miles, 12 Smedes & M. (Miss.) 147; Frederick v. Wheelock, 3 Thomp. & C. (N. Y.) 210. See, also, the principal case, ante, p. 650. Other authorities maintain that the officer may give notice by proclamation, made in the presence and hearing of the persons assembled at the time and place originally fixed for the sale: Coriell v. Ham, 4 G. Greene (Iowa), 455,