
    SUPREME COURT.
    Anonymous.
    Where a piece of real estate was ordered to be sold for the benefit of five infant children, and the guardian gave to each infant a separate bond, under rules 65 and 63, with the the same swreUes, who justified in each case according to the penalty of each bond—being different in amount. Held, that such justification was not in accordance with the spirit of the rules of the court, although it might conform to the letter. The sureties being the same in each case, they should have justified in respect to their ability, as to the aggregate penalties of the several bonds.
    
      Before Sill, Justice, at chambers, July, 1850.
    
    —An order was made at a special term,‘pursuant to rule 65, appointing a guardian to sell a piece of real estate, belonging to five infants. It directed separate bonds to be given by the guardian to each of the infants with sureties, and fixed the penalties respectively at $925, $1130, $1242, $1475, and $1675. Bonds executed in the form prescribed by this order are now presented for approval; the same persons being sureties on all. Endorsed on each bond is an affidavit of the sureties, each of them swearing that he is worth the sum specified as the penalty of such bond, over and above all debts and liabilities, which he owes or has incurred.
   Sill, Justice.

—The 63d rule requires that each of the sureties on a bond of a guardian to sell the real estate of infants, shall be worth the penalty of the bond over and above all his debts; and the form of the affidavit of justification is indicated by the 76th rule. These rules, it is said, and perhaps truly, have been literally complied 'with in the present case, for the sureties have made an affidavit on every one of these bonds, in which each of them swears that he is worth a sum as great as the penalty mentioned in it, over and above all debts and responsibilities which he owes or has incurred.

Under the circumstances of the case, however, this is not a compliance with the spirit of these rules. Their design was (it is scarcely necessary to say) to provide ample security to every infant whose property should be sold under the order of the court, for the faithful discharge of his duties by the guardian appointed to make the sale. When these affidavits of justification were made, no one of these five bonds were filed, or delivered, so as to make it the foundation of any debt or existing liability of the sureties. When justifying as sureties on the bond of one infant, no liability had been incurred on the bonds to the others. The affidavits may therefore all be true, and yet these sureties not be competent to become so in a sum exceeding $1675, the penalty of the largest bond.

To make them competent as sureties on all these bonds, they should be worth $6,447, the aggregate penalties of all, over and above their debts and other liabilities.

One of these bonds might be approved, but as to the other four there must be other sureties, or a further justification.  