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Present: The Hon. Mr. A. G. Lascelles, Acting Chief Justiceand Mr. Justice Middleton.
THE MUNICIPAL COUNCIL, GALLE v. CASSIM.
P. C., Oalle, 28,822.
“Broker'’—Person working for one employer—Licence—Ordinance No.16 of 1869, tt. 13, 16.
A person who works as broker for one' employer only and doesnot offer his services, as snch, to the public is exempt from theoperation of section 18 of Ordinance No. 16 of 1889.
PPEAL from a conviction under section 18 of Ordinance No. 15of 1889.
The facts appear in the judgments.
Domhorst, K.C., for the accused-appellant.
Bawa for the Council.
Cur. adv. vulf.
26th March, 1906. Lascelles A.C.J.—
This is an appeal from a decision of the Police Magistrate of Galleconvicting the appellant under section 18 of Ordinance No. 15 of1889, of carrying on trade or business as a broker without, the licencerequired by the Ordinance. The appellant had previously beenacquitted of this offence; but on appeal this Court set aside theacquittal in order to enable the Municipal Council of Galle to-establish such facts as would elicit from this Court a decision whichwould be binding on them in future cases. The case, came on beforeanother Magistrate, who took a different view of the Ordinance andconvicted the appellant. It was proved that the appellant wasemployed by Messrs. Clarke, Spence & Co. in the purchase of goods,principally coir yam. The course of business was for the appellantto find and introduce to the firm dealers who were willing to sell. -By way of remuneration the appellant received a commission of^ per cent, on purchases. He gave security to the firm for theadvances made to dealers. He also.acted as an interpreter to thefirm. He was prohibited by the terms of his engagement from actingfor any other firm or person. Many authorities have been cited tous to show what should be understood by the terms “ broker ” and“ carrying on business,” but I think the safest guide is to be foundwithin the four comers of the Ordinance. The object of the Ordi-nance as declared in the preamble is to provide for the registration
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and licensing of surveyors, and to prevent unlicensed persons fromcarrying on business as auctioneers or brokers. These three profes-sions are obviously placed under control, because it was consideredthat the interests of the public require that they should only bepractised by persons for whose fidelity and competence there shouldbe some guarantee. The Ordinance is clearly one for the protectionof the public. Section 13 provides that a licence is necessary for“ carrying on trade or business of a broker " and the penal section—section 18—provides for the punishment of “ every person who
shall carry on or attempt or profess to carry on trade or
business as an auctioneer or broker without a lioence. ” Beadingthese sections by the light of the preamble, I have no difficulty inarriving at the conclusion that the Ordinance is aimed at personswho offer their services as brokers to the public, and that it doesnot affect a person, such as the appellant, who works only for oneemployer, even though his duties are in some respects of the samecharacter as those of brokers whose services are st the disposal of thepublic. I would set aside the conviction, and I think the appellantshould be allowed costs.
Defendant was convicted, under section 18 of Ordinance No. 15 of1889, of carrying on the business of a broker, without havingobtained a licence and sentenced to pay a fine of five rupees andin default seven days’ imprisonment. The facts of the case werethat the accused was in the sole employment of Messrs. Clarke,Spence & Co. at Galle, and his business was to negotiate the pur-chase of goods for the firm, to act as interpreter between the firmand the vendors, for which services he received a commission onthe purchase money. The accused was also held responsible foradvances, if paid direct to the dealers. It was contended on behalf ofthe respondent Municipality that in so doing the accused carried onbusiness as a broker so as to render it obligatory on him to obtain•a licence. It was argued that although the accused might only beacting in the exclusive employ of Messrs. Clarke, Spence & Co., yethis doing so involved the carrying on business as a broker withinthe meaning of the Ordinance, and respondent’s counsel relied uponSmith v. Anderson (1). The object of the Ordinance appears to meto be to guard the public from impositions on the 'part of irrespon-sible persons purporting to carry on the business of brokers,surveyors, and auctioneers within municipal limits, and not to obtaina revenue for the Municipal Council. According to Lord Blackburn
a) (1880) IS Ch. D. 258.
( no )in his book on the Oontraet of Sale, page 81, quoted by Lor^ Hannenin Moliet v. Robinson (1), and referred to by Mr. Dornhorst, a brokerfor sale is “a person making it .a trade to find purchasers for thosewho wish to sell, and vendors for those who wish to buy, and tonegotiate and superintend the making of the bargain betweenthem.” In the present case the accused is simply and solelyemployed by Messrs. Clarke, Spence & Co. to find sellers to them ofgoods. He carries on no independent trade ” to find purchasers forthose who wish to sell and vendors for those who wish to buy,” butsimply acts as a buyer and intermediary in the exclusive employ-ment of one person. My view in such action does not ambunt tothe carrying on of the business of a broker within the contempla-tion of the Ordinance, and—applying the definition of LordBlackburn—I am inclined to hold that he is not, in fact, a broker.In my opinion, therefore, the conviction should be quashed and theaccused acquitted. The appellant to have his costs.
THE MUNICIPAL COUNCIL GALLE v. CASSIM