
    Phillips, Assignee, v. Ross, et al.
    Where a probate judge removes an assignee in trust- for the benefit of creditors, and orders him to deliver to his successor the property and effects in his hands belonging to the trust estate, which order he fails to comply with, an action will lie upon the bond of such assignee, in favor of his successor, to recover the damages resulting from the failure to comply with such order.
    Error to the District Court of Muskingum County.
    In June, 1861, E. E. Henderson, by deed of that date, conveyed and assigned all his property to James P. Ross, in trust for the benefit of his creditors. Ross accepted the trust and executed the bond required by section 1 of the act regulating the mode of administering assignments in trust for the benefit of creditors (1 S. & C. 709), with liis co-defendants, John Bell and J. M. Lane, as Iris sureties.
    On May 29, 1866, Ross filed a statement of bis account in settlement of bis trust in tbe probate court, and upon exceptions thereto, tbe court found a balance of $766.44 in bis bands for distribution among creditors. Failing to account for this sum tbe probate judge subsequently removed him, as assignee, and appointed tbe plaintiff in bis stead, and oi’dered said Ross to pay over to tbe plaintiff tbe said sum of money, and interest thereon, from tbe date of said settlement.
    Upon tbe failure of Ross to comply with sucb order tbe plaintiff brought an action upon said bond to recover said sum and interest. To the petition setting out tbe facts, the defendants Bell and Lane demurred for want of facts sufficient to constitute a cause of action. Tbe court of common pleas sustained tbe demurrer, and dismissed tbe petition, and tbe district court affirmed tbe judgment. To reverse these- judgments is. tbe object of this proceeding in error.
    
      T. J. Taylor, for plaintiff in error, cited: 1 Ohio, 469; 7 Ohio, pt. 1, 268; 20 Ohio, 479; 5 Ohio, 200 ; 3 Ohio, 225 ; 4 Ohio, 101; 5 Ohio, 240.
    
      L. P. Ma/rsh, for defendant in error.
   By the Court.

Section 14 of tbe act regulating tbe mode of administering assignments in trust for tbe benefit of creditors (1 S. & C. 712), authorizes tbe probate judge to remove tbe assignee for good cause, and to appoint another in bis stead, and to make and enforce all orders necessary to cause tbe property and effects belonging to tbe trust estate to be delivered to tbe newly appointed trustee. Section 1 of tbe same act requires tbe trustee to whom tbe debtor’s property was assigned to enter into an undertaking payable to tbe state, in sucb sum and with sucb sureties as shall be approved by tbe probate judge, conditioned for tbe faithful performance, by said trustee, of bis duties according to law, and authorizes an action to be brought on said undertaking against tbe assignee and his sureties, by any person injured by the misconduct, or neglect of duty, of the assignee in regard to said trust. The failure of Ross, the assignee, to pay over to his successor the amount of the trust estate, found to be in his hands, and which the probate judge, on his removal, ordered him to pay over, was a clear neglect of duty, for which he and his sureties were liable on his bond, and liable, we think, to the plaintiff. The plaintiff was the representative of all persons entitled to the fund to be distributed, and, within the meaning of the statute, was a person injured by the failure of Ross to pay over the fund in his hands, belonging to the trust estate.

Judgment of the district court and of the court of common fleas reversed, and cause remamded to the common goleas for fu/rther froceedmgs.  