John Egan ". Lumsden & McGovern. and Milwaukee, claiming, meanwhile, that Cincinnati was his permanent residence. Third. At the time the order of attachment was issued, he occupied a store in this city, where he was daily engaged in his vocation, returning each night to the city of Covington, Kentucky, where he had taken temporary boarding in the family of his sister. Fourth. That several of his acquaintances understood him to make his home in Milwaukee, while those who were most intimate with him, were not so advised. Fifth. That he has always resided in Cincinnati, during the whole period he has been engaged in business here. Sixth. That he was in Cincinnati when the sheriff levied the order of attachment on his property, and was regularly served with the process of subpena, which always issues under the code when the action is commenced by filing a petition. With this evidence before us, we can not arrive at any other conclusion than that the defendant was a resident of Ohio within the meaning of the statute, at the time the order of attachment issued; and there was no ground then existing, upon which the plaintiff could rely to sustain the course he has pursued. It has ever been the policy of our court to require the party who pursues an extraordinary remedy, whether by attachment or injunction, to make out a clear case, to authorize judicial interference. So far, indeed, has this idea been carried, that in the case of Hartshorn v. Wilson, 2 Ohio, 28, decided more than thirty years ago, it was held, "the residence of the defendant could be inquired into, on certiorari from a justice of the peace, to ascertain whether that officer had jurisdiction." Indeed, there is a wise jealousy to be exercised where a creditor invokes, before judgment, the power to interrupt the ordinary business of his debtor, to close his doors, and thus publish him to the community as a bankrupt. Too much rigor can not be used in scrutinizing the conduct and deter John Egan v. Lumsden & McGovern. mining the motive when such a case is presented for our action. While it is true, the injured debtor may protect himself in some degree, by a resort to his creditor's bond, any measure of damages, however large, may yet not compensate for mercantile credit suspected, much more when it is charged to be forfeited by a refusal to pay an honest debt. The law of domicil as applicable to the remedy by attachment against a non-resident debtor, is very carefully examined by Mr. Drake in his work on Attachments, ch. 3, sec. 80 to sec. 87, where the cases are cited from the reports of the several States. The result of the doctrine, undoubtedly, is that absence from one's home, for years, when the party left with the intention to return, if, in the meanwhile, that intention to return is not destroyed by some unequivocal act, signifying a purpose to change the domicil, does not defeat this right to claim his former residence, as if it had never been interrupted by his absence. On no other principle would it be secured to officers in the army and navy on duty, public officials abroad, and travelers in foreign parts, to enjoy on their return the privilege of voting where they had always resided, or claim the protection of their property from unlawful seizure in their absence. Another question is raised, as to the sufficiency of the jurat to the affidavit. We need not now decide it, as it is not necessary to the disposition of this cause. We must be permitted to say, however, it is an anomalous proceeding, where one defendant appears practically as the plaintiff, though the action is in the name of another; for he assumes the responsibility of the action, and can alone be liable criminally, should the affidavit be false. The order of attachment will be dissolved. Motion granted. Goodman & Corwin, Trustees, v. Cincinnati and Chicago Railroad Co. CHAS. GOODMAN & THOS. CORWIN, Trustees, etc., v. THE CINCINNATI AND CHICAGO RAILROAD COMPANY. (No. 6,607.) 1. A deed of trust to secure the payment of the principal and interest of certain bonds, provided that "in case the railroad company should fail to pay the principal, or any part thereof, or any interest on said bonds, at the time when the same may become due and payable, after sixty days, etc., the trustees may enter and take possession of the premises and have, use and employ the same; and apply the proceeds to the principal and interest unpaid; or may cause the premises, or so much thereof as may be necessary to pay and discharge the principal and interest unpaid, to be sold, and appropriate the proceeds to the bonds due, principal and interest," etc. Held, on a petition filed by the trustees, that so much of the premises as were necessary would be ordered to be sold, to pay arrearages of interest, though no part of the principal of the bonds had as yet become due. 2. Whenever a debt is payable by installments, the failure to pay any one of them, will authorize a foreclosure and sale. SPECIAL TERM.-On demurrer to petition. Proceeding to foreclose a mortgage to pay interest due on railroad bonds. The plaintiffs are the trustees of a corporation, formerly known by the name of the Western Railroad Company, and now known as the Cincinnati and Chicago R. R. Co., the former corporate name having been changed in the mode required by law. On the 1st of July, 1853, the Western Railroad Company conveyed to the plaintiffs, in trust for the purposes declared in the deed, certain real estate, situated in Cincinnati, and valued at $80,000, to secure the payment of fifty bonds, of even date, therewith issued by the company, and made payable to Charles W. Rockwell, or bearer, for one thousand dollars each, ten years after their date, with interest thereon, at eight per cent., payable semi-annually, at the Ohio Life Insurance and Trust Co., New York. The deed contains the usual clauses, vesting the title to the land in the trustees, to hold the same for the purposes designed; that is, Goodman & Corwin, Trustees, v. Cincinnati and Chicago Railroad Co. "in case the railroad company should fail to pay the principal, or any part thereof, or any interest on said bonds, at any time when the same may become due and payable according to the tenor thereof, when demanded, then, after sixty days after such default, in case said principai or interest shall then remain unpaid, upon the request of any of the holders of the said bonds, the trustees may enter and take possession of all, or any part of the premises conveyed, and have, use and employ the same, making all needful repairs; after deducting the expenses of such use and repairs, to apply the proceeds to the principal, and interest unpaid; or the trustees, at their discretion may, or on the written request of the holders of at least one-half the bonds then unpaid, and unconverted into stock, shall cause the premises, or so much thereof as shall be necessary to pay and discharge the principal and interest of all such bonds as may then be unpaid, or unconverted into stock, as aforesaid, to be sold at public auction, after thirty days notice, with full power to execute to the purchaser a valid conveyance of the title, and appropriate the proceeds to the principal and interest due and unpaid, as well as the expenses of the trust; and retain the residue, to pay any interest or principal afterward to become due and payable on any of said bonds." It was also stipulated “that until default shall be made, in the payment of interest on the bonds, as the same shall become due and payable, or of the principal, when the same shall become due, the railroad company shall retain the possession of the property, use and enjoy the same, and apply to their own benefit the rents and revenues, of all descriptions, arising from the same." The bonds were all of the same tenor, with coupons attached for the semi-annual payments of interest at the rate stipulated. The petition sets forth that there is an arrear of interest now due of $11,108.85, which the defendants are unable to pay; and the additional sum of $2,000 will soon become due, and that the holders of the bonds have demanded of the trustees that they should proceed to sell the property conveyed in trust, as aforesaid, as well for the payment of the Goodman & Corwin, Trustees, v. Cincinnati and Chicago Railroad Co. principal of the bonds as the interest due. It is further alleged that the taxes on the property have not been paid, and the same has been sold therefor. The amount of taxes, penalty, and interest thereon, and the taxes since paid by the purchaser, will make up nearly the sum of $900, which is a charge upon the estate conveyed, and must be relieved before the security given by the deed of trust can be available to the creditors of the railroad company. There is a prayer for a foreclosure and a sale, stating that doubts have been suggested by the defendants as to the right to subject the property conveyed in trust, until the time for the payment of the bonds has expired. Corwin & Probasco, for plaintiffs. STORER, J. It is denied by the defendants that we have any power to order a sale of the property. They say, as interest only is due, and the principal will not become due until 1863, no decree can be rendered to charge the property. They refer to the clause in the deed which confines the remedy, as they insist, for the non-payment of interest, to the rents and income of the estate conveyed, and that no sale can be made until, as it is claimed, under another clause, the principal becomes due. To this, it is replied, that such can not be the proper construction of the deed of trust; its object was to secure not only the principal, but the interest, as it became due, and no rule should be, therefore, applied that would defeat the intention of the original parties. An examination of the clauses, it seems to us, will readily produce the conviction that they are to be taken together. They are separated only by a conjunction, and, when viewed as parts of a general power, may, very fairly, be regarded as providing a double remedy for the non-performance of the obligation by the defendants. First, if the interest or any |