[FULL BENCH.]

Present : Bertram C.J., De Sampayo, Porter, Schneider, and
Garvin JJ.

In re GOONEWARDENE.

120-D. C. (Inty.) Galle, 493.

Appeals-Insolvency proceedings-Security for costs Civil Procedure Code, s. 756.

Per FULL COURT-In appeals in insolvency proceedings the appellant need not give security for costs of appeal.

The insolvent was a resident of Galle. In November, 1921, he established a business at Matara as a boutique-keeper. He closed this business in March, 1922, and continued to live in the Galle house thereafter. The District Judge annulled the adjudication of insolvency, AS during the six preceding months the appellant resided within the jurisdiction of the District Court.

Held (per DE SAMPAYO and GARVIN JJ.) that in the circumstances the insolvent did not cease to be a resident of Galle daring the time he was carrying on business at Matara.

A man's residence is not dependent altogether on his physical occupation of any house.

THE appellant was adjudged an insolvent on May 9, 1922, the Court exercising jurisdiction on this behalf on facts urged in an application by a petitioning creditor.

The respondent to this appeal made an application to annul the adjudication on the ground that the Court had no jurisdiction, in that the insolvent had not resided. within the jurisdiction of this Court for six months prior to the adjudication. The District Judge on July 24, 1922, allowed the application of the respondent annulling the adjudication and condemning the petitioning creditor to pay the costs of the applicant.

The insolvent appealed. As no security for costs of the respondent was given by the appellant, the District Judge ordered the appeal to abate. The insolvent moved the Supreme Court to call for the case. The Supreme Court directed the District Judge to send up the appeal, and ordered that it be listed for argument subject to the objection to be taken at the argument.

The order of the District Judge (T. B. Russell, Esq.) annulling the adjudication was as follows: -

The question is whether the insolvent was residing in Galle for the previous six months as he says, or whether from last November to March of this year he was living and trading in Matara. That he was trading is admitted, and the applicant has adduced ample evidence that during

this period he was not only recognized by them as a man of (R 1 and R 3), but also that he described himself as such (see R 9 which is written entirely in his handwriting). Insolvent admits that it was quite correct to describe him as of Matara." because he had his business there, but he has called a number of witnesses and put to ft number of documents to prove that all the time he was living in Galle. As Mr. de Vos, for the applicant, has pointed out, of the documents I 1 to I 6 relied on by the insolvent, only I 1, the latest poll-tax receipt, is relevant. All the others were written prior to the period when insolvent was trading in Matara. This is so, but I 1 proves that on March 8, 1922, he pail his poll-tax in Galle. Poll-tax, however, is not always paid in the actual place where a person resides. Insolvent may have simply followed the custom of the previous years It is not denied, furthermore, that he is keeping a mistress in Galle, and has done so for several years past, and the Peace Officer and the Vidane Arachchi both say that, they always regarded him as a resident of Galle. But the rent of the present house where the mistress is, and where she has been since January last, is being paid by her, and not by the insolvent, and the insolvent's last witness, Kudahetty, says that the insolvent mostly lived in Matara, and that he only occasionally came to Galle to see his mistress. This is almost certainly the truth. The business in Matara was, on the insolvent's own showing, not a large one. It is no a business he would have been able to leave in charge of employees whilst he remained