And the court say, on pages 434 and 435 of the opinion: "The plaintiffs in error contend that 'the right of action' of the plaintiff below first accrued to him at his majority, at which time he undoubtedly had a right to compel his guardian, by judicial process to perform his duty, to-wit, to make final settlement and payment. We hold, that the 'right of action' meant by the statute is the right to prosecute a suit on the cause of action therein stated, and, as applied in this case, means a suit on the guardian's bond. The right to sue on the bond, and the right to compel the guardian to render a final account are very different rights. The latter can be enforced only in the probate court, while that court has no jurisdiction over the former. Section 2 of the probate act (S. & C., 1212) gives to the probate court exclusive jurisdiction: "To appoint and remove guardians, to direct and control their conduct, and to settle their accounts; and by Section 1, Clause 4, of the act of March 26, 1872 (69 Ohio L., 50), it is made the duty of every guardian, 'at the expiration of his trust, fully to account for, and pay over to the proper person, all the estate of his ward remaining in his hands.' That the settlement of this final account is within the exclusive jurisdiction of the probate court is not disputed, but the claim of the plaintiff in error is, that the failure to make the account, and pay over the estate remaining in his hands, at the expiration of the trust, is a breach of the bond, for which a right of action immediately accrues to the ward. And in support of this claim, State v. Humphries, 7 Ohio (pt. 1), 223, is relied on, in which it was held that a previous settlement of the accounts of a guardian was not necessary to an action on his bond. In that case, however, it was admitted that it had been settled by adjudication, * * * that an action on an executor's or administrator's bond would not lie until after settlement of accounts, in the absence of a statute on the subject, yet, as the Legislature had subsequently adopted the rule as to executor's and administrator's bond, without including guardians, it was therefore held that an action on a guardian's bond might be maintained without a previous settlement of his accounts, in accordance with a practice which had obtained in respect to other official bonds; namely, in respect to an insolvent's bond and a clerk's bond (3 Ohio, 508; 6 Ohio, 150), cases in which no accounting was required by statute. But Bartlett v. Humphries is of little or no weight on the question now under consideration, for, as we have shown by reference to the act of March 26, 1872, every guardian is now required at the expiration of his trust to file a final account in the probate court, 'fully to account for and pay over;' that is, to account first, so

that the amount in his hands may be judicially ascertained, and then pay over, etc.

"The settlement made in the probate court of the accounts of the guardian shall be final between him and his ward, unless an appeal be taken to the court of common pleas, or the same be set aside for fraud or manifest mistake. Section 31 of Guardian's Act (S. & C., 677), and Section 33 of the same act provides: 'When any guardian has died, or may hereafter die, before the settlement in court of his or her guardianship account, it shall be the duty of the executor or administrator of such guardian to settle up said account in the same manner as such guardian ought to have done.

"If an accounting can not be obtained from the guardian in the exercise of the power and jurisdiction of the probate court, we do not deny that an action on the bond against the makers may be prosecuted in a court of equity for an account and other relief; otherwise, such final accounting being a duty enjoined by law, and the enforcement of it being entirely within the jurisdiction of the probate court, a jurisdiction declared by statute to be exclusive, and that court performing a judicial function in finding the balance due upon such accounting under the power conferred upon it by statute, no action will lie against the guardian and his sureties on his bond for a breach thereof, for any balance due from the guardian to his late ward in a court of law, until such balance shall have been fixed by final settlement in the probate court.

"That an accounting must precede judgment is clear from the fact that the amount of the judgment can not otherwise be ascertained. Exclusive jurisdiction in the settlement of the account is given to the probate court. The probate court has no jurisdiction in an action on the bond."

This case and one or two other cases seem to decide clearly and finally that unless the jurisdiction of the probate court has been ousted in some way, or it is impossible to settle the matter' within the jurisdiction of the probate court, an action can not. be maintained upon the guardian's bond until there has been a settlement and adjudication of the amount due in the probate

court.

Gorman v. Taylor, 43 Ohio St., 86, paragraph three of the syllabus is as follows:

"A suit in equity on a guardian's bond, to compel an account can not be maintained without a showing that the powers and

jurisdiction of the probate court are ineffectual to secure such accounting."

And it is held in Braiden v. Mercer, 44 Ohio St., 339, that the settlement in the probate court is conclusive and final against the sureties. The syllabus is:

"In an action upon a guardian's bond for the recovery of the amount found due the ward upon a final settlement of the guardian's accounts in the probate, court, the sureties are concluded by the settlement, and will not be heard, in the absence of fraud and collusion, to question its correctness or to demand a rehearing of the accounts.'

It is sought to avoid these decisions of the Supreme Court and the law as therein established by the allegations in the amended petition that Baumbach kept no books or memoranda of accounts whereby it could be ascertained how much was due from him to his ward, and therefore it was impossible to compel any account or have any settlement of Bumbach's account; and the further allegation, "that an account can not be obtained from or with said guardian in the exercise of the power and jurisdiction of the probate court with respect to said estate, and such jurisdiction is ineffectual for that purpose." This last averment is purely a conclusion of law. It is not an allegation of fact to allege that the probate court is without jurisdiction or that an accounting can not be had within the exercise of the power and jurisdiction of that court, or that such jurisdiction would be ineffectual; it is necessary to plead facts to show that that is the

case.

We are of the opinion that the first cause of action in this petition does not state facts sufficient to constitute a cause of action; and if the first cause of action falls, the second must fall, for it is based upon it. And there is in fact but one cause of action. That is the claim which plaintiff has against the bondsmen and their representatives. The fact that Baumbach kept no books or accounts and left no memoranda behind him did not oust the jurisdiction of the probate court. It might make it more difficult to ascertain in what amount if any he was indebted to his ward, but it would not affect the jurisdiction of the court or render the jurisdiction of the court ineffectual, and it would

be no more difficult to ascertain in the probate court in what amount he was indebted to his ward than it would be in the court of common pleas or in this court. It would be a matter of accounting, a matter to be determined by the court from such evidence as could be offered, such papers and memoranda as could be found; and the adjudication of the probate court upon this question, as decided by the Supreme Court, would be final as against the surety in the absence of fraud or mistake or collusion.

We are unable to see how these allegations in the petition to which reference has been made take the case out of the rule established by these decisions of the Supreme Court, or afford any substantial reason or ground why an accounting should not be had in the probate court and this matter determined there. It is not necessary to state or discuss the rules of law or evidence that would apply in a hearing of that kind. The whole matter is within the exclusive jurisdiction of the probate court. There has been no settlement or finding or adjudication of that court fixing the amount due from Baumbach to his ward, and the court of common pleas had no jurisdiction to require an accounting and settlement or make a finding thereon.

Being of this opinion as to this branch of the case, it is not necessary to discuss the second claim of the plaintiff that the life insurance in a certain amount should be applied to plaintiff's claim. If plaintiff can not maintain her action against Baumbach's bondsmen, for the breach of the guardian's bond, she of course is not entitled to an accounting against the children and the widow of the bondsman Hanner for the excess of life in

surance.

We are of the opinion that the court of common pleas was right in sustaining the demurrer. Holding as we do, that the petition does not state facts sufficient to constitute a cause of action, it is not necessary for us to discuss the other grounds set up in the demurrer.

For the reasons stated, the judgment of the court of common pleas is affirmed.

George A. Bassett, for plaintiff in error.

Kinney & Newton, for Louis Hanner et al.

Criminal Law-Intent a Substantive Part of the Offense, When-Reviewing Court will Consider Quantum of Proof-As to Compelling a Defendant to Be a Witness against Himself—By Exhibiting Himself to the Prosecuting Witness.

1. The intent in a trial under an indictment charging assault to rob and assault to rape in two counts, is a substantive part of the offense, and must be established beyond a reasonable doubt.

2. Where a woman is struck from behind with a piece of gas pipe, the intent to wound is manifest, but it does not follow that no other purpose existed; and where she carried a gold watch and chain, which could be plainly seen in her belt, and there was no ill feeling between herself and her assailant, and the blow was struck in a dark place away from the street lights, a reviewing court in considering the quantum of proof necessary to convict will uphold a verdict of guilty of intent to rob.

3. It is not a violation of the constitutional provision, that no person shall be compelled in a criminal case to be a witness against himself, for the trial judge to require him, over the objection of his counsel, to stand up for better identification by the prosecuting witness.

Cook, J.; BURROWS, J., and LAUBIE, J., concur.

Heard on error.

Two questions are made in this case by counsel for plaintiff in error:

First. That the verdict is not sustained by the evidence. Second. That the action of the court upon the trial, by which the accused was compelled to stand up for the better inspection of his person by the prosecuting witness, was a prejudicial violation of his constitutional privilege and rights.

Upon the first proposition the special complaint of counsel is that the evidence was not sufficient to show the intent.

The accused was charged in the indictment with assault with intent to rape and with assault with intent to rob. The jury convicted of assault with intent to rob. In determining the