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Present: Mr. Justice Middleton.
PERIS v. MUNASINGHE et al.' -1—
P. G., Balapitiya, 28,961.
Authority of Government Agent to renter—Delegation by renter to a . thirdparty—Obstruction—Delegatusnon potestdelegare—PenalCode,
s. 183—Criminal Procedure Code, s. 147.
The Government Agent had delegated to an arrack renterauthority to place locks on the doors of the storehouse of anylicensed distillerinthe GalleDistrictunder section23 of Ordi-nance No. 10of 1844. Therenterdelegated hisauthority in
writing to the complainant, who is manager of the arrack farm.
The accused, having obstructed the manager in the performanceof his work, was charged under section 183 of the Penal Code.
Held, the accused was entitled to – be acquitted, as the renter hadno power to delegate his authority to the manager, and Ore lattercould not therefore be said to have acted under the lawful ordersof the Government Agent.
Middleton • J.—The maxim delegatus non potest delegare must bestrictly applied, wherever the agency involves a trust or discretionin the agent for the exercise of which he is personally selected.
rp HE facts and arguments sufficiently appear in the judgment.
A. St. V. Jayewardene, for the accused, appellants.
Sampayo, K.G., for the complainant, respondent.
Gur. adv. vult.
26th September, 1906. Middleton J.—
The accused were convicted under section 183 of the Penal Code,and appealed' on the ground that the person whom it was allegedthey had obstructed was not a person acting under the lawful ordersof a public servant.
The Government Agent had delegated to an arrack renter autho-rity to place locks on the doors of the storehouse of any licenseddistiller in the Galle District under section 22 of Ordinance No. 10of 1844.,.
The renter delegated his authority in writing to the complainant,who is manager of the arrack farm, Wellaboda pattu.
The complainant, it appears, showed accused the authority givenby the Government Agent to the renter,^and asked permission toput on the locks, but was refused under circumstances which cer-tainly amounted to obstruction, and this is- admitted by counsel forthe appellants.
( 324 )
The maxim delegate poteatas non- potest delegari was relied on, andBrodhurst v. Hendrick Sinno (1) was quoted as analogous to this.
For the respondent it was contended that this case^was distin-guishable and that here complainant was not acting under delegatedauthority, but was carrying out the orders of the renter Ss if be hadbeen present, and was acting under lawful orders-
The maxim in English Law has been held to apply strictly where-ever the agency involves a trust or discretion in the agent_for theexercise of which he is personally selected [Ess. v. Truscott (2),valuation by broker’s clerk; Bell v. Balls (3), signature of contractfor sale of real estate by auctioneer’s clerk]. If the agency involvesno' exercise of discretion, and it is immaterial if it is done by oneperson or another, then it may in general be delegated: Leake onContracts, p. 320, 4th edition; Johnson v. Osenton (4); Brown v.Tombs (5).
From the document B produced by the complainant it is clearhe was acting under delegation from the renter.
I am of opinion that this is an agency which involves an exerciseof discretion in the doing of the arbitrary acts which are put withinthe power of the Government Agent to do or cause to be done, andto avoid breaches of the peace should only be delegated to personswho would act discreetly and clearly under the direct authorityof the Government Agent.
This, I think, was the intention of the Government Agent ingiving authority to the renter, and I would hold that the maximapplies to this case, and that the renter could not lawfully delegatehis authority to another.
Under these circumstances I think the complainant was notacting under the lawful orders of the Government Agent, and thatthis appeal must be allowed.
I understand from appellant’s counsel that neither the sanction' of the Attorney-General has been obtained nor was a complaintmade by the Government Agent under section 147 of the CriminalProcedure Code previously to the institution of this case.
I set aside the conviction and acquit the accused.
(1) (1896) 4 N. L. B. 213.'2) 2 M. and W. 385.
(1897) 1 Ch. 663.
L. B. 4 Ex. 107.B. 253.
PERIS v. MUNASINGHE et al