"Festin is Hamburg and not Colombo . . . . A number of cases have been cited to me by the Procurator and counsel for the claimants in support of their respective contentions with regard to the point of trade domiciles .... and no doubt these cases are of some assistance in arriving at the principles on which to base a décision. But on reading through them it becomes more and more clear that each case has to be decided on its own merits. And as Lord Stowell says in his judgment in The Harmony, it ,,is in itself a question of considerable difficulty depending on a great variety of circumstances, hardly capable of being defined by any general precise rules . . . ." " Après avoir cité, entre autres, d'une décision de 1874: „that the approved definition of domicüe is „a résidence at a particular place accompanied with positive or presumptive proof of continuingit for an unümited time," " et plus tard:
„To constitute the new domicüe two things are indispensable : Fust, résidence in the new locahty ; and second, the intention to remain there. Mere absence from a fixed home, howèver long continued, cannot work the change. There must be the animus to change the prior domicüe for another. Untü the new one is acquired the old one remains,"
et après avoir observe que, dans 1'espèce, les mdications usueües de changement de domicüe, comme p.ex. le déplacement de la familie et du ménage, font défaut, la cour continue :
„Is there positive or presumptive proof before me that this man shewed any intention of throwing off his enemy character and becoming a resident merchant of Ceylon ? . . . .
What does the evidence before me amount to? Merely that Karl Festin came to Colombo some time about October 1909, stayed at the Bristol Hotel there, and started to trade with his trade house in Hamburg; that he left Colombo for Australia in December, 1910, and did not return to Colombo tül March, 1911 ; that he again left Colombo in December 1912, for Germany, and did not return tül Aprü, 1913. It is suggested that his return to Germany was for the sake of his health, but, ü that were so, it only goes to shew that Ceylon was not the place for him to take up his permanent résidence. It is true that he did rent a house at Colombo, but a merchant who knew that it might take some httle time to establish his new branch of business might, for the sake of comfort, take a house rather than stay at an hotel, without any intention of remaining permanently or for an unlimited period. — Can it be said that this evidence is sufficiënt to convince me that this born German, who has resided most of his life in Germany and carried on his trade at Hamburg, has now abandoned his country and native home at Hamburg, and has changed from a German merchant into a Ceylon one ? I am of opinion that I should be stretching the doctrine of trade domicüe to breaking point if I considered such evidence sufficiënt
Derfflinger, n°. 3 (192): dénégation de domicüe commercial