
    William Thompson v. Edward Morris.
    S-Frorn Burke,
    ’Uie terns of a sale were, that persons purchasing to the amount oí 20s. or upwards, should have a credit of twelve months; that they should give bond with approved security; and those not complying with these terms, should pay four shillings in the pound for disappointing the sale, and return the goods before sunset. A mare was put up for sale, and struck off to A. at the price of £SQ 6. The mare was delivered to him, but he failed to give bond and security, and he did not offer to return the mare for several days, wheii B. refused to receive her ; and immediately brought an action of in-debitatus assumpsit, for the price. Held, that the action affirmed the sale, and therefore could not be sustained before the term of credit expired. An action for breach of contract in not giving bond with security, or for notreturning the mare, would have been the proper remedy. ,
    In this case, the Plaintiff declared in indebitatus, as-' spmpsit, for the price of a marc sold and delivered to the Defendant; and on the trial he proved that ata pub-He vendue made by him on the 25th August 1808, con1ducted according to certain terms then publicly proclaimed and made known to the Defendant, the mare was put up and struck off' to the Defendant, at the price of 4250 6s. he being the highest bidder; that the property was delivered to him, but he omitted to give bond and security for the sum bid, on that day or at any other time, nor did lie return or tender the mare oh the day of sale,; that a few days afterwards, the Plaintiff called on the Defendant for his bond and security, which he did not give, and then for the first time offered to return the mare, which the Plaintiff refused to accept. The suit was commenced in October, 1808.
    Part of the terms of sale were, that those who purchased to the amount of tweuty shillings or upwards, should have a credit of twelve months; that persons purchasing should give bond with sufficient security; and that those who did not comply with the terms of sale, should pay four shillings in the pound, for disappointing the sale, and return the goods before sunset. Tiie case was submitted, ^nd
   HendersoN, Judge,

delivered the opinion of the Court:

v It is clear from the authorities, that the present action affirms the sale; therefore, it cannot be sustained before the term of credit expires. An action for the breach of .contract, in not giving the bond, or for not returning the tnare, would have been the proper remedy. The principles which govern this case are well established and clearly laid down, in 4 East, 147, and 3 Bos. & Pull. 582. As, therefore, tins action was commenced before the cause of action occurred, a nonsuit must be entered.  