
    John C. Hines, Administrator of Green W. Drake, deceased, vs. The State of North Carolina, use of John H. Vick, Guardian of Louisa C. and Josiah Vick.
    The State of North Carolina is entitled, as a corporation, to institute actions-in this state.
    Under the statute of this state, which authorizes a foreign guardian whose-wards have estates in this state, to apply to the probate court, having jurisdiction, and file a certified copy of his letters of guardianship under the seal of the court granting the same, which provides that upon the guardian’s giving bond as required the court shall grant him all the rights and privileges exercised by other guardians, a guardian who has complied with the statute may prosecute, in this state, an action for the use of his wards against the surety of a former guardian on his guardianship bond, given in another state, and payable to that state according to its laws, the suit to be brought in the name of that state for the use of such guardian.
    And in the declaration, filed by such guardian on such bond, the allegation that the suit was brought “ by order and direction of the court of pleas and quarter sessions for the county of Nash and state of North Carolina’’may be treated as surplusage; the declaration elsewhere showing the guardian’s right by virtue of his proceeding in the probate court of this state.
    "Where, in a bill of exceptions, taken in an action on a bond, to the admissibility in evidence of the bond, under the plea of non est factum, it is recited that the signature of the obligor was proved, and the bond recites that it was “ sealed,” and opposite to the name of the obligor, in the copy of the bond in the bill of exceptions, is written the word ‘ ‘ seal;” held, that there was nothing in the bill of exceptions that showed that the bond was not actually sealed,, or that a substitute for a seal was employed.
    
      Where a bill of'exceptions is imperfect in not setting out all the testimony with reference to the execution of a bond, whose admission in testimony is complained of, the high court of errors and appeals will presume that the court below properly admitted it on due proof of its execution.
    In error from the circuit court of Octibbeha county; Hon. Francis M. Rogers, judge.
    The declaration was in these words, viz.:
    “The state of North Carolina, that sues for the use of John H. Tick, guardian of Louisa C. Tick and Josiah Tick, orphans, under the age of twenty-one years, by attorney, complains of John C. Hines, administrator of the estate of Green W. Drake, deceased, of a plea that he render unto said plaintiff the sum of six hundred dollars, which from said plaintiff he unjustly detains. For that whereas the said Green W. Drake, in his lifetime, together with Arthur Whitfield and William W. Algood, on the 7th day of August, A. D. 1835, at the county of Nash, in the state of North Carolina, made and executed his certain bond, sealed with his seal, and signed by him by the name and signature of G. W. Drake, (and now here brought into court by the order and under the authority of the court of pleas and quarter sessions, for the said county of Nash, as by reference to the record of the minutes and proceedings of said court annexed to said bond more fully appears,) the date of which bond is the day and year aforesaid; and thereby he, the said Green W. Drake, in his lifetime, acknowledged himself, his heirs, executors and administrators to be held and firmly bound unto the said state of North Carolina, in the just and full sum of three hundred pounds of the current money of said state, being equivalent to six hundred dollars (written-three hundred pounds) to be paid to the said state, to which said bond a condition is annexed to the following effect: That whereas the said Arthur Whitfield had, on the day of the date thereof, been appointed by the said court, guardian to Louisa C. Tick and Josiah Tick, orphans of Josiah Tick, deceased, if the said Arthur Whitfield, guardian as aforesaid, shall well and truly discharge his guardianship by taking care of and improving all the estate belonging to said orphans, and shall settle his guardianship accounts •with the court of said county of Nash, as required by law, and that he well deliver up to each orphan, when they shall attain lawful age, all such estate as they ought of right to be possessed of, or sooner, if required, agreeably to the true intent and meaning of the act of the general assembly, in such case made and provided, then this obligation to be void, otherwise to remain in full force and virtue.”
    The declaration then proceeds to assign breaches : 1. That Whitfield received a specific legacy of $250 due them, and converted it to his own use; 2. That he obtained $500 of their estate, and moved with it out of North Carolina, and never accounted for it; 3. That he embezzled and wasted their estate; 4. That he used the assets of their estate, and went to parts unknown, upon which commissioners were appointed by the court of pleas and quarter sessions to audit and settle his guardianship accounts, who reported to the court, that on the 14th day of November, A. D. 1843, Whitfield was indebted to his wards in the sum of $461.17 ; which report, according to the laws of North Carolina, was confirmed by the court; the said Whitfield having fled the state, the judgment became absolute, and it was ordered that suit be instituted against Hines, the administrator of Green, by which means the writing obligatory became forfeited, &c., wherefore the suit was brought.
    To this declaration a demurrer assigning ten special causes was filed; before its disposition, at the May term, 1845, the plaintiff filed an amended declaration which commenced in this way: “The State of North Carolina, that sues by order and direction of the court of pleas and quarter sessions for the county of Nash, and state of North Carolina, for the use of John H. Tick, guardian of Louisa C. Tick and Josiah Vick, orphans, under the age of twenty-one years, by and under the authority and appointment of the probate court of Octib-beha county, and state of Mississippi, by attorney, complains, &c.”
    The declaration proceeded to assign breaches similar to those in the first declaration : and in the last breach assigned, referred to the transcript of the record of the proceedings against Whitfield in the court of pleas and quarter session, duly authenticated and then brought into court.
    The defendant again filed ten special causes of demurrer to the declaration. The demurrer was overruled, and leave granted him to plead. He plead non est factum by his intestate. On the trial the plaintiff offered the bond sued on in'these words, viz. :
    “State of North Carolina:
    “Know all men by these presents, that we Arthur Whitfield, Green W. Drake, James Walker, and William W. Algood, are held and firmly bound unto the state of North Carolina in the just and full sum of six three hundred --pounds, current money of the said state, to which payment, well and truly to be made, we bind ourselves and every of us, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents, sealed with our seals and dated this the 11th day of August, A. D. 1835.
    “Whereas the above bounden Arthur Whitfield hath been this day by the worshipful court of Nash county appointed guardian to Louisa C. Tick, and Josiah Tick, orphans of Josiah Tick, deceased;
    
      “ Now the condition of the above obligation is such, that if the said Arthur Whitfield, guardian, as aforesaid, shall well and truly discharge his guardianship by taking care of and improving all the estate belonging to the said orphans, and shall also settle his guardianship accounts with the court of said county, as required by law, and that he will deliver up to said orphans as aforesaid, when they shall attain lawful age, all such estate as they ought of right to be possessed of, or sooner if required, agreeably to the true intent and meaning of the act of the general assembly, in such case made and provided, then this obligation to be void, otherwise to remain in full force and virtue.
    A. Whitfield. [Seal.]
    W. W. Algood. [Seal.]
    G. W. DRAKE. [Seal.]
    [Seal.] ”
    The plaintiff proved, by two witnesses acquainted with the handwriting of Drake, that the signature to the bond of his name was in his bandwriting and the bond was admitted in. evidence. The defendant excepted; the bill of exceptions did not state that no other evidence of the execution of the bond was offered but that of the two witnesses who proved the signature.
    The plaintiff then offered to read the transcript of the record of proceedings in the court of pleas and quarter sessions, the substance of which was as follows, viz.: “ On the 13th of November, 1843, that court appointed three commissioners to audit and settle the accounts of Arthur Whitfield, who was guardian of Louisa C. Yick and Josiah Yick, infant orphans of Josiah Yick, deceased, from the 11th day of August, 1835 to the 14th day of February, 1838, when John H. Yick was appointed guardian of said orphans.” The commissioners were further required to report what was due by him as guardian. On the 15th of November, 1S43, they made their report that he was in debt by reason of his guardianship to his Wards in the sum of five hundred and sixty-one dollars and sixty-six cents.
    The record proceeds as follows, viz.: “ Which said report being seen and considered by the court, is confirmed in all respects; and it appears to the court that Arthur Whitfield left this state in the early part of the year 1838, insolvent, and that William W. Algood .... is insolvent; and that the other security, Green W. Drake, removed to the state of Mississippi, and is dead, leaving property; it is ordered by the court that the present guardian of said orphans, put the bond of said Whitfield, Algood and Drake in suit, and that he institute a suit in the name of the State, of North Carolina against the estate of the said Drake, in the circuit court of the county of Octibbeha, state of Mississippi. And it is ordered by the court that the original bond of Arthur Whitfield and his securities be delivered by the clerk of the court to the present guardian, John H. Yick, for the purpose of suit, the clerk taking and retaining a copy of the same. And it appearing to the court that said Whitfield had been grossly negligent in discharging his duties as guardian, it is declared by the court and so ordered that said Whitfield is entitled to no commissions for or on account of his guardianship.” This was the whole record.
    
      The clerk of the court certified, under seal of the court, that the transcript was a faithful one “of the proceedings made at November term of our said court, at its session, November 13, 1843.”
    Jesse H. Drake, “chairman of the court of pleas and quarter sessions, and presiding magistrate for the county of Nash,” certified to the official character, &c. of the clerk.
    The defendant objected to the admissibility of this record; the objection was overruled and he filed a second bill of exceptions.
    The plaintiff then offered to prove, by Moses Westbrook and Belfield Starke, the value and nature of North Carolina currency, mentioned in the declaration, and the value of the three hundred pounds. The record states that these “ witnesses stated that they did not know what the law of North Carolina was upon the subject, or any general custom existing throughout said state, fixing or regulating the value or nature of such currency as pounds, but that in the neighborhood and in the county in which they lived, and in several adjoining counties, so far as they had any knowledge, such currency was calculated at ten shillings to the dollar, or two dollars to the pound.” The defendant objected to this evidence, which was all that was offered by the plaintiff as to the value of the “pound” inNorth Carolina currency. The objection was overruled, and he took his third bill of exceptions.
    The jury found a verdict for the plaintiff, and assessed his damages at $488.49, and the defendant sued out this writ of error.
    
      Harris and Harrison, for plaintiff in error.
    1. The demurrer to the amended declaration was improperly overruled. Corporation of Washington v. Young, 10 Wheat. 406 ; 3 Yerg. 479 ; 5 Mass. R. 191; 13 Ibid. 260 ; 2 Day, 559 ; 2 Amer. C. L. Rep. 430; Pickering v. Fisk, 6 Term. 102; 5 Ham. 218; 1 U. S. Dig. 437, § 100.
    2. The court erred in permitting the instrument purporting to be a bond to be read in evidence. The execution of it was in issue, and the only proof as to the genuineness of it was evidence of the hand-writing of one of the parties. There was no proof of a sealing or delivery, or that the bond,was ever in the possession of the state. 6 Peters, 124; 1 Stewart, 136 ; 4 J. J. Marsh. 572.
    No local law was adduced giving to the letters “L. S. ” the force of a seal in North Carolina. The statute of this state upon the subject does not reach beyond our own territory. Bank of Rochester v. Gray, 2 Hill’s N. Y. R. 228.
    3. The bond offered in evidence was void for uncertainty. 1 How. 198.
    4. It was variant from the one declared on in several particulars. That sued on was for three hundred pounds ; that offered in evidence was for six three hundred; that sued on is alleged to have been executed in the county of Nash, in the state of North Carolina; the one produced does not purport to have been executed in said county; the declaration uses the words, the “ court of pleas and quarter sessions,” &c.; the bond only the “ worshipful court of Nash.”
    5. No suit can be maintained against the security upon the bond. Frazier v. Frazier's-Executors, 2 Leigh, 642; 2 Wash. 160 ; 1 Tucker’s Com. 278 ; 5 Cond. R. 727 ; Pet. C. C. R. 46; 15 Peters, 187.
    6. The transcript of the proceedings at the November term, 1843, of the “ worshipful court of Nash,” was improperly admitted. The whole proceedings were irregular, without notice, without the jurisdiction of the court, and void. They also vary from the case alleged.
    7. The evidence in relation to the “North Carolina currency ” should have been rejected.
    
      G F. Miller, for defendant in error.
    1. The declaration alleges Tick to be guardian appointed by the probate court of Octibbeha; this the statute allows, (H. & H. 340, § 18); and he was instructed to sue by the court of pleas and quarter sessions ; this is sufficient authority.
    2. Whitfield had fled the state of North Carolina; it was impossible to proceed farther against him in that state than the court there did proceed ; the record fully sustained the allegations of the declaration on that subject.
    3. As to the alleged variance between the bond and declaration, see 7 How. (Mi.) R. 176, 243; 3 S. & M. 64; 4 Ibid. 649; 1 Stark. Ev. 494 ; 2 Ibid. 479; 1 Chit. Pi. 305; Hoi. Tenn. Dig. 73; 5 John. R. 84; 8 Ibid. 392, 410.
    4. The only plea was non est factum; performance is not in issue under that plea. Tidd’s Prac. 196, 511. Under the pleadings the bond being proved, the case was on writ of inquiry as to the rest, and the exceptions therefore taken on the trial of the'plea were not warranted by the pleadings.
    5. It is said an administrator may give any matter in evidence under the general issue ; that is true, but non est factum is not the general issue to an action on a bond, with breaches assigned.
   Mr. Justice ThacheR

delivered the opinion of the court.

An action of debt was instituted by the state of North Carolina for the use of Tick, guardian, against Hines, administrator of Drake, surety of Whitfield, a former guardian. The action was founded upon the guardianship bond of Whitfield.

A demurrer filed to the declaration was overruled in the circuit court. Of the specified causes of demurrer, but one seems to be relied upon in this court in the brief of counsel for the plaintiff in error. This specification is, that the declaration shows no sufficient legal authority for the institution of t.he suit.

The state of North Carolina is entitled, as a corporation, to institute actions in this state. The suit, also, was instituted for the use of Tick, guardian, who, having authority under our statutes, by filing his foreign letters of guardianship in this state and taking out letters here, and being in possession of the bond, could cause suit to be instituted upon it. The allegation that the suit was instituted “by order and direction of the court of pleas and quarter sessions for the county of Nash, and state of North Carolina,” may be regarded as surplusage, since our statute provides an authority to such a guardian to pursue the remedy here sought to be applied. H. & H. 340, § 18.

The bond upon which tile action was founded, being offered in evidence, was objected to by the defendant. The plea was non est factum. The signature of the defendant’s intestate was established by two witnesses. As the bill of exceptions sets it out, the bond has the word “seal” against the name of the defendant’s intestate signed thereto, and the body of the instrument declares it to have been executed as a specialty. There is nothing in the bill of exceptions that manifests that the bond was not executed with an actual seal, or that shows that any substitute for a seal was employed. It is only from the brief of counsel that we learn that the letters “L. S.” were substituted for a seal, from whence it is insisted that some local law of North Carolina should have been exhibited authorizing a substitution for an actual seal. So far, therefore, as this court is informed by the record, the instrument was executed by actual sealing. This bill of exceptions, it may likewise be remarked, •is imperfect in setting forth all the testimony as to the proof of the execution of the instrument, and the court having admitted it in evidence, we are required to consider that all necessary preliminary proof was duly adduced.

The foregoing points are all which, upon examination, seem to call for observation. Some of the others are not legitimately raised in the state of the pleadings.

Judgment affirmed.  