DAVID CARLISLE vs. J. W. THOMAS, Administrator of SAMUEL CARLISLE, deceased, 2 Harr. 318

Per Curiam: J. M. Clayton, Chief Justice. We cannot entertain a doubt on the question; and we directed the attention of counsel to it in the first place, because we thought the objection fatal. We desired, however, to hear it argued, and it has been ably discussed. It is clear against the power of the deputy prothonotary to appoint the referees. It is so by the terms of the act of assembly; by the uniform practice and understanding, at least in the other counties, with the practice in which we are more familiar; by the decision of the same principle in the Court of Appeals, in the case referred to of Richards vs.

Dusar; and, according to a very strong impression on my mind, by a decision of the very question, by the Supreme Court in Kent. But the principle of the case of Richards vs. Dusar, covers the case, if indeed the act there was so strong an example of personal trust as the present. In each case the power is devolved by the law on the prothonotary ; and the appointment of referees to tqy cajates. and whose report is to bind the real estate of deceased persons, and conclude the heir, is a more important trust, and more necessary to be restricted to the officer himself than the administering an oat.

We think we may safely lay down this principle the legislature has by statute, conferred upon a ministerial officers such as the prothonotary, a power requiring the exercise of judgment and sound discretion, for the protection of interests which are manifestly, from the face of the statute, the subjects of legislative solicitude; he cannot delegate the trust to another, but must faithfully discharge it himself. If he delegate the power to another to be exercised in his absence, the interests intended to be protected by the act cannot be affected by such an exercise of power. J. A. Bayard, for plaintiff.

Rogers and Wm.. H. Rogers, for defendant. We must look to the character of the act, and the words of the law conferring the power to do it, to see if it be such

an act as can be done by deputy. And we cannot now think of any case but where the duty is strictly ministerial. • The sheriff has many duties which we should'consider as not ministerial; but, without going out df the case to decide as to any other officer, we think it is not competent for a deputy prothonotary to appoint referees under the act of assembly referred to¡ Rule absolute..