#### Peebles and Vaughan, Admrs. *v.*Overton.

From Guilforj.

Where on a sale by executors, the terms made known were, 12 months credit, by giving bond with approved security, and the Defendant purchased but refused to pay 1he money, or give a bond, it was heid, that tlie executors might immediately sue for the money, notwithstanding the terms were 12 months credit.

A new trial will not be granted on an affidavit of the absence of a material witness under such circumstances as would not have induced the Court to *continue*the cause for the absence of the witness.

This was an action originally commenced by warrant, which by successive appeals had reached the Superior Court when it came on for trial before Seawerr, Judge.

The warrant was “to answer” Plaintiffs “ in a plea of debt on sale of articles to the amount of one dollar and twenty-seven cents.”

The Plaintiffs were the administrators of one Kenlian Vaughan, and at the sale of his effects, made known the following as the articles of sale.

*385The highest bidder to be the purchaser; all sums over ten shillings, 12 months credit, by giving bond with approved security. All sums of ten shillings and under1, cash. No property to be removed off the premises until bond be given or money paid : Whoever purchases at the sale and fails to comply with the articles, shall pay four shillings in the pound for disappointing the sale.

On the trial, the Court admitted evidence to prove that the Defendant at the sale became the purchaser of an article at the price mentioned in the warrant *;*that he refused to pay the money, or comply with the terms of sale by giving bond and security : and instructed the jury, that bysuch refusal, a right of action accrued immediately to the Plaintiffs, though according to the terms of sale, the purchaser, by giving bond, was entitled to a credit.

The Plaintiff offered to prove a special agreement to re-sell the property purchased by Defendant, and a promise made by Defendant to pay the difference j that such re-sale did take place, and to claim such difference if entitled to recover in this form of the warrant: this was overruled by the Court, on the ground that the form of the warrant would not admit of the introduction of such evidence. It appeared that the Plaintiffs after the sale to Defendant, had made no use of the property sold.

The jury returns a verdict for the Plaintiffs to the amount of the property sold, and a new trial was moy-ed for on two grounds.

1. The admission of improper evidence and misdirection in law to the jury.

2. Upon an affidavit of one Sander’s as agent for Defendant, who swore that lie had taken out a subpoena for a witness and delivered it to a constable of the county, supposing that any constable might execute it; that the constable had summoned the witness and she did not attend ; that he was advised byhis Counsel, that under the circumstances, her absence was not a ground for the con*386tinuance of the cause, and therefore he had gone into the trial in her absence. By the witness, Defendant expected to prove that Plaintiffs had, after the sale to Defendant, sol¿ the same article, (a spinning wheel) to the witness.

Seaweix, Judge,

delivered the opinion of the Court:

The warrant is for the priCe of a spinning wheel, sold at vendue, anti purchased by Defendant. The terms of tim sale were twelve months credit, by giving bond with approved security. The Defendant bought the whee', but refused to give bond or pay the money. He had his election to do either, but must be dilferently situated front other men, if exempted from both-so ~ar the verdict was well warranted, and as. to the motion for a new trial, gt'oun(led upon the Defendant's affidavit, that must also fail ; as it is an attempt to obtain a new trial for a reason admitted to be insufficient for a continuance.

Rule discharged.