
    Williams v. Henderson.
    Whore a defendant owns a plantation, with a dwelling-house, in a distant parish, and where he has resided for several years, except occasional absence in travelling, and afterwards opens a commission house in New Orleans, with a view to try the commission business, and keeps his family at a boarding house: — held, that it is not such a change of domicil, as will authorize a suit against him within two months afterwards, at his new residence. — 8 L. 213 (II.), and cases there noted.
    Appeal from the court of the first judicial district.
    This is an aotion against the drawer of a hill of exchange, drawn at [558] Warrenton, the 23d December, 1836, on Brander, McKenna & Wright, of Mew Orleans, and hy them accepted; payable to the order of George Henderson, 373 days after date. The hill was duly protested for non-payment at maturity, and on the 1st Movember, 1840, this suit was instituted against Wm. Henderson, the drawer, for the sum of $3600, with costs of protest and interest; for all of which the plaintiff prays judgment.
    The defendant, without admitting any of the allegations in the petition, pleaded a declinatory exception, declining the jurisdiction of the court, on the ground, that his legal domicil and principal establishment are, and for a long time have been, in the parish of Carroll; that he further excepts to the petition, in not setting out the plaintiff’s place of residence.
    Upon these pleadings and issues the case was tried.
    The opinion of the court contains a full and correct statement of the facts and evidence of the case.
    
      There was judgment overruling the exception, and for the plaintiff for the amount of his demand. The defendant appealed.
    
      Th. Slidell, for the plaintiff and appellee,
    insisted, the judgment was correct, and should be affirmed.
    
      Preston & Emerson, for the defendant and appellant,
    contended that judgment should be reversed, and one of nonsuit rendered.
    The defendant’s domicil and principal establishment are in the parish of Oarroll, and not in New Orleans. Oivil Oode, 42; Tanner v. King, 11 La. Kep. 178.
    Defendant must be cited at the place of his domicil. Oode of Practice, 162. And even if he reside alternately in Oarroll and New Orleans, he must be cited, where he appears to have his principal establishment. Id. 166.
    Defendant never declared his intention to ehcrnge his domicil to New Or-[559] leans, and has done no acts in that place, which clearly manifest an intention to make it the place of his domicil. Id. 168.
   Simon, J.

delivered the opinion of the court.

Defendant is appellant from a judgment rendered against him for the amount of a bill of exchange, by him drawn at Warrentown, on the 28d of December, 1836, on the commercial house of Brander, McKenna & Wright, to the order of George Henderson, and subsequently indorsed by the latter.

Our attention is first called to the declinatory exception taken by said defendant, on the ground that his legal domicil and principal establishment are, and have been for a long time, in the parish of Oarroll, and not in the parish and city of New Orleans, in which, he insists, he is not suable.

In support of this declinatory exception, several witnesses have been examined, whose testimony shows, that the defendant has a plantation in the parish of Oarroll, very well stocked with negroes and every thing else necessary for carrying on a plantation; that he is now improving said plantation, and was lately putting up a nice house upon it; that he has no other real estate in any other parish; that he has had a plantation in Oarroll for the last ten years; has resided there since the latter part of 1836, erected a house on the same plantation in the same year, and that with the exception of spending a part of the summer away, he has constantly resided in Oarroll from 1836 up to the present time (January, 1841); that his family reside there, but are now in New Orleans, spending a few months at a boarding house; that defendant’s and family’s principal residence is in the parish of Oarroll; that he is a member of the police jury of said parish, and has been repeatedly home, since he came down to the city. On the other hand, it has been established, that the defendant came to this city in September, 1840, opened a cotton commission house, and published a notice to that effect in the papers; that he has a sign over his door as a commission merchant, and is here for the purpose of receiving any favorable consignment which [660] may be made to him: that he has rented an office for some time, and rented a part of it out; one of the witnesses testified, that he saw a circular of the defendant’s stating that he intended coming here to locate and establish himself, soliciting the patronage of planters and others; that his consignments are small, few and far between, and that he does not receive much cotton. Some of the witnesses stated that the defendant said that if he could make certain arrangements he would quit the commission business and return to his plantation; that he would not accept any drafts, unless he had the cotton in his hands; that he had come down here to try the business, and that, being a member of the police jury, he frequently said that he would be back in time for the meeting'in June.

From this evidence it does not appear to us clear that the acts of the defendant are such as to show on his part a manifest intention of re noving from the parish of Carroll to New Orleans, and to make the city the place of his domicil. The 42d article of the La. Oode says, that “ the domicil of each citizen is in the parish wherein Ms principal establishment is selected; and that the principal establishment is that in which he makes Ms habitual residence,.” The art. 43 provides, that “ a change of domicil is produced by the act of residing in another parish, combined with the intention of making one’s principal establishment there.” The art. 44 indicates an express deala/ration made before the judges of the parishes, from which and to which he intends to remove, as being a sufficient proof of intention; and by the art. 45, if no such declaration has been made, the proof of the intention must depend upon circumstances. According to the art. 166, of the Code of Practice, “if a defendant reside alternately in different parishes, he must be cited in that in which he appears to have his principal establishment, or Ms habitual residence;” and “if his residence in each appear to be nearly of the same nature, in such a case he may be cited in either, at the choice of the plaintiff, unless he has declared, pursuant to the provision of the law, in which of these parishes he intended to have his domicil.” By the art. 167, “if the de- [561] fendant change his domicil, he must be cited in the parish where he has resided within the last yeai', or within that where he has deolared, in the manner prescribed by law, that he intended to have his domicil." And in tho words of the art. 168, “if the defendant has not made such a declaration, he may, nevertheless, be cited in the parish where he lives, though he has not resided one whole year in it, if he has done in that parish acts which manifest sufficiently that he intended to malee it the place of his domicil.'1'1

In this case the defendant has made no declaration, has not resided one year in the city, and our inquiry must consequently be limited to the question, whether from the circumstances shown by the evidence, he has done such acts as evince a manifest intention of making New Orleans the place of his domicil?

As this court has said in the case of Waller v. Lea, 8 La. Rep. 215, “ the intention alone, however formally expressed, would not suffice; it must be complied with by the act of residing in the new parish.” In the case of Hennen v. Hennen, 12 La. Rep. 195, this court held that “the act of residing must be combined with the intention ; ” and in the language of this court, in the case of Turner v. King, 11 La. Rep. 178, “ a man’s domicil is his home, where he establishes his household, and surrounds himself with the apparatus and comforts of life.”

Under a correct application of these principles of law and jurisprudence, can it be said that the defendant has lost or abandoned the domicil which he had in the parish of Oarroll, and that he has acquired a new domicil in the city of New Orleans? Or can it be contended that his residence in each place appears to be nearly of the same nature, and makes him suable in either ? What are his acts ? after having resided for a number of years in Oarroll, where all his property is situated, where his household is established, where his family resides, and where he has surrounded himself with the apparatus and comforts of life, he thinks proper and convenient to come [562] down to New Orleans, in September, 1840-(two months before the institution of this suit), to tr.y the business, to open a cotton commission house, and to offer his services to planters and others as a commission merchant; he does not bring his family with him, except to spend a few months at a boa/rding house. The consignments which he receives are small, few and far between; he goes home repeatedly during the business season; is a member of the police jury of the parish of Oarroll, where he expresses his intention to return in time for the meeting in June; and far from manifesting any determination on a change of domicil, he seems disposed to make such arrangements as to quit the commission business and to return to his plantation.

We cannot agree with the judge a quo in the conclusions which he has drawn from the acts of the defendant. They show nothing but an intention on his part to make an experiment, and to try if he could successfully undertake the commission business in New Orleans during the winter; so far he must be considered only as a sojourner; his motives are sufficiently explained by the circumstances, and it does not appear to us that he ever had any intention of remaining in the city longer than it was necessary to try the success of his experiment; his ulterior determination was, perhaps, to depend upon the result of his commercial pursuits, but in the mean time his domicil and principal establishment continued to be in the parish of Oarroll. We are therefore of opinion that the intention of the defendant being not combined with actual residence, the purposes of the law are not satisfied, and that the district judge erred in overruling his declinatory exception.

Tor the same reasons, we do not think that the defendant’s short and momentary residence in this city is nearly of the same nature with his residence in the parish of Oarroll, so as to be sued in either; he' may, perhaps, acquire it hereafter, by subsequent acts; but as the case stands at present, we feel no hesitation in saying that he was not suable in any other parish but in that of Oarroll.

[563] It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed; that the defendant’s declinatory exception be sustained, and that this suit be dismissed, the plaintiff and appellee paying costs in both courts.  