
    William J. Taylor v. John M. Bach.
    If a defendant reside alternately iu different parishes, he must he cited in that in which he appears to have his principal establishment or his habitual residence. If his residence in each appear to be nearly of the same nature, in such case, he maybe cited in either, at tho choice of the plaintiff, unless he has declared, pursuant to the provision of the law, in which of those parishes he intended to have his domicil. This intention is proved by an express declaration of it before the judges of tho parishes from which, and to which, ho shall intend to remove. If this declaration is not math's this intention shall depend on circumstances,
    from the Third Judicial District Court of Jefferson, Burthe, J.
    
      T. Gilmore for defendant and appellant.
    
      A. G. Semmes for plaintiff.
    
    The defendant offered in evidence his declaration of change of domicil from the parish of Jefferson to the parish of St. Helena.
    If this was & judicial declaration of the change of domicil, it could not avail the defendant under the evidence in this case; because the declaration must be combined with or followed by an act of residence in the parish of St. Helena. O. C. 43. Now, there is not a scintilla of proof that defendant ever resided in that parish. Even where the proof shows that a person resides alternately in different parishes, the declaration only governs “ where the residence appears to be nearly the same. (Judson'r. Lathrop, 1 An. 79); otherwise, he must be cited in that parish where he appears to have his principal establishment or his habitual residence. C. P. 166; C. C. 43.
    But this is not a judicial declaration. On the 1st of June, 1855, defendant writes a note to the clerk of the court for the parish of St. Helena, declaring his change of domicil; p. 9. In January, 1857, he has a certified copy of this declaration recorded by the clerk of the court for the parish of Jefferson; p. 8.
    The laws require an 11 express declaration to be made before both of the judges of the parishes from and to which, the person intends to remove. ” 12 La. 195; 8 La. 315.
    The defendant also offered as evidence the record in a suit in the Fifth District Court of New Orleans, and two deeds executed by himself, wherein it is stated he was domiciled in the parish of St. Helena. These being mere declarations on the part of the defendant, were overruled by the court, because, I presume, they were res inter alios acta, and therefore not evidence. 4 N. S. 52. I am not satisfied that the ruling of the court in this particular was correct. Admitting the court was wrong, the case should not be sent back for a new trial where the ends of justice have been attained (1 B. 192; 3 A. 163; 9 La. 350); and where the same' judgment must of necessity be rendered. Giving the defendant the full benefit of these ex parte declarations, they could not alter or affect the judgment; for, “ where a party’s declarations in relation to his domicil are inconsistent with his acts, thby go for nothing. ” 10 An. 94.
    “Where evidence improperly excluded is in the record, the case will. not be remanded.” 1 Hen. Dig. (new ed.) p. 99 (37); 13 An. 448; 14 An. 61-64; 6 An. 647.
   Jones, J.

This suit turns upon a plea of domicil, made on the part of John M. Bach, defendant.

The record discloses the following facts : That the defendant had his domicil at the same time in the parishes of Jefferson and St. Helena. R. T. Taylor, on behalf of defendant, says that defendant owns a good deal of property in the parish of St. Helena, and that, for three or four years, he has claimed his domicil in the parish of St. Helena.

But, on cross-examination, the same witness testifies that Mr. Bach resides in the parish of Jefferson; that he is constantly backward and forward, but most of the time in Jefferson; that his residence during the winter is in Jefferson, and that his family is in Jefferson.

P. G. Lecorgne, witness for plaintiff, states he has known Mr. Bach for twenty years; that Bach now resides in Jefferson, and has resided there ever since witness knew him, with.ihe exception of some time when he lived on Washington street, in New Orleans; that defendant, during these twenty years, has lived more in Jefferson parish than any other, and that Mr. Bach’s family has always lived most of the time in Jefferson.

In addition to his evidence, the defendant introduced a declaration of his change of domicil from the parish of Jefferson to the parish of St. Helena ; and further sought to introduce his declarations in the record of a suit, and two deeds executed by him, wherein it is stated that the defendant was ' domiciliated in the parish of St. Helena ; which declarations and evidence, upon objection being made by plaintiff, were rejected by the court. The evidence so rejected, as well as the other evidence, being before us, we proceed to examine the same:

Now, regarding the evidence rejected by the court as admissible (upon which we pass no opinion), it does not materially strengthen the defendant’s plea.

We are satisfied, from the proof, that John M. Bach had, at the same time, two domicils : the one in the parish of 3 efferson, and the other in the parish of St. Helena. The law relative to plea of domicil is clear. Article 166 C. P. declares that, if a defendant reside alternately in different' parishes, he must be cited in that in which ho appears to have his principal establishment or his habitual residence. If his residence in each appear to be nearly 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 those parishes he intended to have his domicil.

To the same effect is Article 42 of the C. C. 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. C. C. Art. 43. This intention is proved by an express declaration of it before the judges of the parishes from which and to which he shall intend to remove. C. 0. Art. 44. In case this declaration is not made, the proof of this intention shall depend on circumstances. 0. C. 45.

Upon the law and the facts thus presented, we are of the opinion that defendant, John M. Bach, had his principal establishment, at the institution of this suit, in the parish of Jefferson ; and, as he resided alternately in the said parishes of Jefferson and St. Helena, and did not declare his intention, as prescribed by law, to change his domicE from Jefferson to St. Helena parish, he was properly sued in the parish of Jefferson.

Therefore, for these reasons, it is ordered, adjudged and decreed, that the judgment below be affirmed, with costs.  