S-Frorn Burke, 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…
¶2
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.
