cution unsatisfied, and alleging the unjust withholding of the property or effects of the defendant from the payment of his debts, is all the complaint that is necessary; and so where it is sought to compel both a discovery and an application of the property and effects of the defendant, to the payment of his debts, simply making the necessary additional averments required by the statute. Indeed, an affidavit is all that the statute in terms requires, and it cannot be doubted that this was all the complaint contemplated; but where the proceeding is resorted to for the purpose of subjecting choses in action, held by the execution defendant against third parties, or held by some person for his use against third parties, it becomes necessary to have the debtor of the execution defendant, or the debtor and the trustee, where the evidence of debt is in the hands of a third party, as well as the execution debtor, before the court. And in such a case there must be a complaint, in legal effect, whatever it may be called. So that the safest and best method of proceeding in all the cases is, by a verified complaint by the creditor making the proper parties, and containing the necessary allegations to bring the case within the particular section contemplated, and to entitle the creditor to the relief sought.

$42. Of the order to be issued against the defendant or his debtor, and the lien thereof. The order contemplated by the statute should recite the filing of the verified complaint or affidavit, and if the court is in session it should command the defendant, or the creditor, as the case may be, to appear forthwith before the court to respond to the complaint. If the court is not in session, it should require the party summoned to appear at a time and place mentioned, before the judge. If the order is against the defendant for a discovery, or for a discovery and application of effects, it should command him to appear and answer concerning his property. If it be against his debtor, it should command him to answer concerning his indebtedness, or concerning property or effects of the debtor in his hands, and in this case a separate summons should issue in the usual form to the execution defendant, notifying him of the hearing. The proceeding operates as a lien upon the chose in action or other effects from the time of the issuance of the order.1

1 Butler v. Jaffrey, 12 Ind. 504.

$43. Of the pleadings, the hearing and judgment, and its enforcement. Although in form, and in some sense in legal effect, there should be a complaint filed, yet no demurrer need be filed to test its sufficiency, and though the defendant may answer in writing, under oath, yet this may be waived, and ordinarily in practice, the hearing consists of an examination before the judge, without a jury, as to the matters alleged in the complaint or affidavit. The defendant and other witnesses may be examined in a summary way, both for and against the alleged claim for relief. And, upon such hearing, the court will either dismiss the proceeding or grant such relief, as the evidence shows the creditor entitled to. If the proceeding is brought to procure the application of money or property, unjustly withheld, and the evidence sustain the claim, the order is made directing the payment of the money, if money is the subject to be paid, into court, and if property is found in his hands, the order is to deliver the same to the sheriff; and where the proceeding is against the debtor of the defendant and there is money due from him to the debtor, he is ordered to pay it into court for the satisfaction of the debt. If there is money not yet due, the court keeps the proceeding pending, and forbids the transfer by the debtor, and, when it matures, makes the order for payment into court.1 Where the proceeding is brought to reach debts due to the execution debtor, and it appears that such liability exists, and whether the evidence of debt be held by the debtor or some one for him, unless the debtor of the execution defendant voluntarily pay the money into court, the court should appoint a receiver, and compel the delivery to him of the security held by the debtor, and direct him to collect in the usual way; for, although the statute seems to authorize the court in such a case to compel the payment of money into court by attachment,2 clearly it is not competent, by this summary process, to deprive the debtor of the defendant of his day in court. The court may make all orders necessary for the full enforcement of the rights of the parties, forbid transfers, make orders for the delivery of property, and for the payment of money by the defendant, and enforce

3

Edgarton v. Wilcox, 11 Ohio St. 323, adopted by our supreme court.

them by attachment;' and although, as already stated, this remedy was crude and very obscure in its inception, it is now developed into a very convenient agency in compelling fraudulent debtors to apply their effects to the payment of their debts.

6. What acts constitute a constructive contempt.

7. The proceeding in case of direct contempt.

8. Proceedings in constructive contempts.

9. Answer of the defendant to the charge of constructive contempt. Constructive criminal contempt.

10. Constructive contempts where the acts consist in failure or refusal to comply with some order of court, involving the enforcement of a civil remedy. 11. Appeal to the supreme court in proceedings in contempt.

FORECLOSURE OF MORTGAGES.

12. Action, when brought.

13.

Parties to an action for foreclosure.

14. The nature and extent of the decree of the court in the foreclosure of a mortgage.

MODE OF EXECUTING DECREE.

15. Some restrictions upon the proceedings.

16. Proceedings when mortgages payable in installments, and part due and part not due.

17. Chattel mortgages, how foreclosed.

PARTITION.

18. The former procedure by writ of partition at the common law, and by bill

in equity.

19. Practice under the code of procedure.

20. Special provisions of the code of procedure.

21. The interlocutory decree.

22. Duties of the commissioners.

23. Excepting to the report, determination thereof and final decree.

24. Sale of property which cannot be divided.

25. General observations upon the subject of partition.

ACTIONS FOR THE POSSESSION OF REAL PROPERTY AND TO DETERMINE CONFLICTING CLAIMS THERETO.

26. General observations.

27. Occupying claimants.

28. Color of title and in good faith, what.

29. Nature and course of proceedings to have compensation for improvements

determined.

$30. Cases where lands have been sold by executors, administrators, sheriff or guardian, and recovered against the purchaser.

ACTION FOR WASTE.

31. A few general observations.

32. The former rule, and the change made by the code.

NUISANCE.

33. General statement of the practice under the code in cases of nuisance.

PROCEEDINGS TO ENFORCE JUDGMENTS AGAINST JOINT DEBTORS

AND THE REAL ESTATE OF DECEASED JUDGMENT DEFENDANTS.

34. General provisions of the code upon the subject indicated in the sub-title. 35. Same subject continued, mode of procedure.

BUILDERS' LIENS AND THEIR ENFORCEMENT.

36. Introductory section.

37. Of the lien- by whom taken, and upon what to operate.

38. Mechanics' lien law extended to railroad bridges, trestle and embankments.

40. Diversion of moneys due to the contractor from the owner to the payment of persons who have worked or furnished materials to the contractor.

41. The action for the enforcement of the lien upon the real estate or upon the money in the hands of the owners due the primary contractor.

LIENS UPON BOATS AND OTHER WATER CRAFTS, AND MODE OF EN-
FORCING THEM.

42. Complaint and affidavit.

43. Attachment service and seizure of vessel.

44. Discharge by giving bond.

45. Effect of recent rulings of supreme court of United States.

OF PRINCIPAL AND SURETY.

46. Remedies of sureties against creditors. General remarks.

47. Remedy against creditors by written notice.

48. Rights of sureties as against principals under the code.

49. Proceedings after the determination of the issues, where it is in favor of

the surety.

50. Miscellaneous provisions of the code.

PROCEEDINGS FOR THE ASSESSMENT OF DAMAGES.

51. The proceeding in substitution of the former writ of ad quod damnum. When it may be had.

52. Proceeding, complaint.

53. Proceedings-issuing the writ, summoning the jury, notice to defendants. 54. Proceedings, continued-impaneling and swearing the jury, their charge, and the duties imposed upon them.

55. Proceedings, continued the general rules governing in the inquisition. Return of the sheriff.

56. Proceedings subsequent to the sheriff's return, and the effect.

57. Remarks relative to the appropriation of lands for railroads and other like public improvements under the provisions of the code.

58. The proceedings under the general railroad law. General observations.