#### MASON, COMM. OF INSOLVENTS, FOR THE USE OF M. *v.*MONTGOMERY AND WHITE.

Insolvent bond — pleading—condition—aver.ment—the declaration of use by an insolvent commissioner — trustee—distribution—sealing and delivery of a bond.

The party making title to sue under general laws, need not set them out, the court will apply their provisions to the proper state of facts without their recitation.

If the declaration set out the condition of the bond, in which it is recited that the party was arrested and became obligated to apply for a discharge under the insolvent law, and avers the non-application' as a breach, that sufficiently shows the party^applied for relief before the bond was taken.

If the party performed the condition of the bond he should plead it, it is sufficient for the plaintiff to state'in general terms the condition.

The insolvent law authorizes suit on the bond of the insolvent to be brought by the commissioner of insolvents, for *the use of the*creditors, and directs him to disuibutc among them pro rata the amount so collected, this does not require him to *express the use*in the proceedings*, and if he docs express the use for only one creditor, non constat there are any other

The insolvent commissioner acts as trustee for the creditors, and what he recovers, swells the insolvent fund for distiibution, and that is a question with which the security has nothing to do.

A party relying upon new matter, must himself bring it forward affirmatively in pleading, a demurrer will not introduce it on the record.

An insolvent commissioner may be restrained from an improper distribution, and called to account, but not by the security of the insolvent in a suit against him on his bond.

It is the sealing and delivery of a bond that determines its validity, not the signing.

. The declaration is in debt upon a penal bond, conditioned (under the insolvent law, *20 O L*330, 331,) that Montgomery *should*appear at the next Court of Common Pleas, file his *petition,*&c. pay the costs of the application, and comply with the insolvent law; it is averred that H. M. (for whom the suit is brought) is a creditor, and assigned for breach the non-appearance of Montgomery at the court tó file his petition, pay costs, or comply with the law.

The defendants demur specially to the declaration, and set forth the following causes of demurrer: to wit,

1. That the declaration does not show under what statute the bond was taken!.

*7232. That the condition of the bond is not in conformity with the law. ' 1

' 3. It is not shown under what section of the law, the insolvent applied.

4. It is not averred that the insolvent ever applied for relief as an insolvent debtor.

5. The suit should have been brought for the use of *all the creditor s,*and it is not averred that H. M.'is *sole creditor.*

6., It is not alleged that-the bond is signed by the defendants.

*Crowell*and *P.*Hitchcock,

in support of the demurrer, cited 22 O. *L.*329; 29 O. *L.*330-333.

*D. Tod*and *C.*Pease, contra.

Wright, J.

The first and third causes of demurrer depend upon the same principle and may be considered together. Whatever of title depends upon the general law, need not be specially set forth in pleading; the court, ex officio, take notice of the law and apply it to any state of facts, to which it is applicable. Besides, these are matters dehors the bond and should come from the defendants.

The second cause of demurrer will fail, because we do not see wherein the condition of the bond is at variance with the law, and no variance is pointed out to us.

The fourth objection, that it nowhere appears that the defendant, Montgomery, was an applicant for relief under the insolvent laws, is answered by the declaration. The condition of the bond recited, shows that the party was under arrest, and . became obligated to appear at court", apply for a discharge under the insolvent law, &e. and the breach is,, that he did not appear to file his petition &c. Can the defendant set up this very omission to exonerate himself from his bond? If he performed the condition, he should plead it. The general allegation negativing the condition, is sufficient for the plaintiff in declaring. The law expressly provides, (29 *O. L.*333) that the bond shall be forfeited, and suit may be brought.

The fifth point seems to embrace the main objection to the declaration. By ohr law, (29 *O. L.*333, *sec.*10) it is provided, that when the bond is forfeited, suit may be brought in the name of the commissioner, *for the use of the creditors of the*applicant, and the sums collected shall be distributed amongst the creditors pro rata. We do not understand the law as making it necessary *to express the use*in the suit, as a part of the proceedings. The commissioner is a public officer, and as such, is required to perform this duty of suing and collecting. The sum collected, he holds as an officer and trus*724tee for *all*the creditors, and the law directs him how to distribute. The suit is well brought without expressing any use — the sum recovered swell® *the*effects of the insolvent, which the commissioner holds" and is bound to distribute as trustee. But it is urged that a use is expressed for *one*creditor to the exclusion of all others. Not so. True, only one creditor is *named*— but non constat, there are others: if so, that is new matter which should have been pleaded by the defendants. The demurrer does not put it on the record. All these are questions between the commissioner and the creditors, in which the debtor and his sureties have no interest- We doubt not the commissioner would be restrained from an improper distribution, and called to account on proper application; but this is not the time or place, nor is the defendant the person to see to it.

As to the sixth, objection, we need only say, that it is the sealing and delivery of a bond that determines its obligation, not its being signed.

The demurrer is overruled, and the cause must go to a jury *t&*assess what is due in equity..