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1905.

KENT

V.

FITTALL.

position towards the occupiers of the other flats would be in law just the same as here.

[LORD ALVERSTONE, L.C.J. Is not the real distinotion that here the landlord lives in the house, whereas in the case of flats he only lives in one of those separate tenements?

A house with floors divided off into flats is still the house. But the residence of the landlord in the house is not the infallible test. The language of Bradley ▾. Baylis (a) shows that, and that the real test is: Has he got in fact any control? There is no evidence here of any of the ordinary incidents of control which one associates with lodgings, and as to general control of the house the finding is: "The landlord's use of and right of control over the parts of the premises so used in common is identical with that of his tenants, and he does not reserve to himself or exercise any right of general control."

[LORD ALVERSTONE, L.C.J. How, upon that view, do you distinguish Morfee v. Novis? (a)]

One distinction is that the claimant there had only the exclusive "use," not exclusive "occupation," of the In the course of the argument in that case:—

room.

"[Brett, L.J. How do you distinguish this case from that of Bradley v. Baylis ?]

"The claimant here had the exclusive occupation of his rooms.

(a) Colt. 163; 8 Q. B. D. 195.

"[Brett, L.J. No, that is not so found; the case states only that he had the exclusive use of his rooms.]"

[LORD ALVERSTONE, L.C.J. That is obiter, and not quite consistent with the ground on which he puts his judgment. See on page 235: "If the owner of the house reserves to himself a control over it (which he does if he resides in part of it, and where there is only the use of the passages and staircases given to the inmates to whom he lets the rest; or if he does not reside in it, yet if he, by his servants, performs any duties in the house or undertakes a certain control), any person who occupies only a part of that house as his tenant may be properly said to be a lodger with him."]

The true construction of that is not that the man who resides necessarily retains the control, but that he may retain control even if he does not reside, if by his servant he performs any duties or undertakes control.

[DARLING, J. In all this great number of cases, can we take it that the landlord resides for any other purpose than to have control and see how the premises are conducted?]

The Revising Barrister has found the contrary, whatever the fact may be. In Toms v. Luckett (a), which has been relied upon by the other side, the qualifying words are, If he reside, retaining his quality of master and reserving to himself general superintendence and control." Those words would be unnecessary and superfluous if the appellant's contention is right, and "resides" means in law all the rest.

(a) 2 Lutw. 19; 5 C. B. 23.

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FITTALL.

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M'Laughlin v. Chambers (a) is directly in point: "I consider that, upon the evidence before the Revising Barrister, it was competent for him to have determined in either of two ways. He could have determined that the amount of control exercised by Mrs. Kennedy was different from that exexcised by her tenants, and that it was a control not capable of being attributed to her as being in the same position as her tenants. If he had so determined, I should not have touched his decision, because, when there is actual control exercised, it may be that it is part of the control of the landlord reserved, and not the same control as that of the tenant merely. But, on the other hand, it was open to him to draw the conclusion that the amount of control exercised by Mrs. Kennedy was exactly the same as that of the other inmates, and not the paramount control of master. He has drawn this conclusion as a matter of fact, and we cannot reverse this part of his decision” (b). So here, in paragraph 8, the Revising Barrister has drawn the same conclusion with a view to finding it as a fact, as M'Laughlin v. Chambers has expressly stated it is open to him to find. If this is not so, a great difficulty must arise in the case of ordinary flats. The same argument, namely, that the mere residence of the landlord involves such legal control of passages, staircase, &c., whether he exercises it or not, as to make the occupants lodgers, would apply entirely to such flats. It is difficult to find any distinction. The true conclusion from the cases has been drawn in M'Laughlin v. Chambers (a), and it is this: that there may be cases in which the landlord lives on the premises, and yet the

(a) Appendix, p. ii; (1896) 2 Ir. R. 497.

(b) Per Palles, C. B., (1896) 2 Ir. R. at p. 511.

tenant is not a lodger, but an occupier. That is the point. It is submitted the Revising Barrister has so found in fact here. If he has so found, the finding is conclusive. If not, the case ought to go back to ascertain what he did in fact mean to find as to control. The question is not whether the finding is or is not right.

[LORD ALVERSTONE, L.C.J. Why, if the distinction is not between residence and non-residence, did the Court rely so much on non-residence in Kirby v. Biffen? (a)]

Because, if the landlord does not reside and has no servant, then he cannot exercise control.

With regard to the Registration Order, 1895, the Instruction No. 16 in Form A. does not mean to exclude the right of the tenants to claim as occupiers. It is conceded that primâ facie where a landlord resides on the premises the occupants of rooms are taken to be lodgers. That is the first fact to look at in deciding whether lodger or inhabitant occupier. Therefore they are not to be returned as a matter of course as inhabitant occupiers. That is all the order and instructions mean. In the similar Irish order the words are "need not return," and the Irish Court of Appeal, in Hogan v. Sterrett (b), said they meant the same thing as the instruction in the English order.

Dickens, in reply. It is submitted Morfee v. Novis (a) is conclusive. In that case there was no finding of any actual control nor of any control except such as residence in the rest of the house involved, upon which the

(a) Colt. 163; 8 Q. B. D. 195.

(b) 20 L. R. Ir. 344.

1905.

KENT

V.

FITTALL.

1905.

KENT

V.

FITTALL

Revising Barrister was of opinion that though the claimant had the exclusive use of the two rooms, yet the landlord retained to himself such an occupation of the entire house as would constitute him the proper person to bring trespass, and that therefore the claimant was a lodger only.

With regard to the comparison between flats and houses of this character, the distinction drawn in the course of the argument was also actually drawn by the Irish Court of Appeal in Hogan v. Sterrett (a), where the very question was raised, and they said that flats were a series of houses one on the top of another.

It is submitted that where, although there is no affirmative evidence of a right of control, there is a right of control shown by other facts, of which the possession of the rest of the house is one, that is enough, and it is a case of lodgings. In this case it is a question of law on the facts which have been stated, and not a question of fact, and the Revising Barrister's conclusion was wrong.

LORD ALVERSTONE, L.C.J. I am of opinion that this appeal must be allowed. Of course, if Mr. Foote is right in his contention that this case is based upon a finding of fact, that the landlord has no control over the house, and that he has so severed his position as occupier from that of landlord, that his residence there has nothing to do with any control over any part of the house as such, I think that perhaps he has made out a special case which possibly might not fall within the clear rule which I think is laid down by the cases in the Court of Appeal. But I cannot think that the Revising Bar

(a) 20 L. R. Ir. 344.

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