(After stating the foregoing facts.) We are of the opinion that the court properly overruled the demurrers of the defendant Armstrong and of the surety upon his bond, the United States Fidelity and Guaranty Company. We do not think it is necessary, where a bond like that in the present case was. given by a receiver, and there is a breach of the bond, as alleged in this petition (a breach is admitted by the demurrer), for the party to whom the bond is made payable to first institute proceedings against the principal in the bond, to ascertain what amount of funds he has in his hands which he should pay over, after his removal as receiver, to the new receiver appointed as his successor, and, when these proceedings have terminated in the ascertainment of that amount, that the suit should be brought upon the bond. Cases ruling that summary proceedings against the receiver are available for those having an interest in the fund, and that the receiver having funds in his hands which he has been ordered to pay over, and which he fails and neglects to pay over to his successor in accordance with an order of the court, is subject to rule for contempt, are beside the question. It does not follow that because Crane, who was appointed receiver in this case of all the moneys and other assets of the Citizens Trust Company, might have made demand upon Armstrong for a delivery to him of the assets of the Citizens Trust Company, and in case of a failure of Armstrong to turn over and deliver to his successor such assets he would have been subject to a rule for contempt, the new receiver was bound to apply to the court for such an order or to resort to the summary proceedings. There is no reason why he should not in the first instance sue upon the bond, or have the payee in the bond sue for his use, as was done in this ease. The court correctly overruled the demurrers.
Judgment affirmed in doth cases.
All the Justices concur.