This was debt on a bond for $360. The defence was, that payment was not to be made, until the defendant, as guardian of the children of Hugh McRae, could raise the money out of the rents and profits of the property of his wards.
His Honor was of opinion, that such was the proper construction of the bond. In this, we think, there is error. It is true, that for the maintenance and education of a ward, the guardian has no right to expend more than the income. But for the payment of debts, for which his ward is liable, a guardian has it in his power, by proper proceedings, to sell the real, as well as the personal estate.
The true construction of the bond is, that the money was to be paid as soon as it could be raised by a sale of the property of the wards of the defendant. He was bound to procure a sale for that purpose within a reasonable time. Certainly, it could have been done within some time short of three years.
Per Curiam. There must be a venire de novo.