Whipple v. McGinn

Supreme Court of Rhode Island

Whipple v. McGinn

25 A. 652, 18 R.I. 55, 1892 R.I. LEXIS 8

DecidedNovember 12, 1892

StatusPublished

This text of 25 A. 652 (Whipple v. McGinn) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Whipple v. McGinn, 25 A. 652, 18 R.I. 55, 1892 R.I. LEXIS 8 (R.I. 1892).

Pincite

Opinion

Per Curiam.

This is an action of ejectment. The question raised by the defendant’s exceptions is the sufficiency of the count contained in the plaintiff’s amendment to his declaration. The count sets forth that the defendant had on divers days and prior to the commencement of the action used the tenement as a resort for illegal gaming and as a place where intemperate, idle, dissolute, noisy and disorderly persons were in the habit of resorting, but contains no allegation of a wrongful detainer by the defendant.

We think the count is insufficient. Pub. Stat. B. I. cap. 80, § 4, annuls the title of a tenant' who uses the tenement for the illegal purposes set forth in the count, hut the de *56 fendant is not liable to be sued in ejectment unless be lias wrongfully detained the tenement from the plaintiff on his demand therefor; and it is, therefore, necessary that a wrongful detainer should be averred. Doubtless it would have been sufficient if the declaration had, averred generally a wrongful detainer as applicable to all the counts, the original as well as that contained in the amendment. The declaration, however, contains no such general allegation. The wrongful detainers alleged form the conclusions of the three counts in the original declaration and are applicable only to the causes of action set forth in those counts.

Benjamin M. Bosworth, for plaintiff. Edward D. Bassett & Thomas J. McParlin, for defendant.

Exceptions sustained and case remitted to the Special Court of Common Pleas for a new trial.

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Per Curiam.

This is an action of ejectment. The question raised by the defendant’s exceptions is the sufficiency of the count contained in the plaintiff’s amendment to his declaration. The count sets forth that the defendant had on divers days and prior to the commencement of the action used the tenement as a resort for illegal gaming and as a place where intemperate, idle, dissolute, noisy and disorderly persons were in the habit of resorting, but contains no allegation of a wrongful detainer by the defendant.

We think the count is insufficient. Pub. Stat. B. I. cap. 80, § 4, annuls the title of a tenant' who uses the tenement for the illegal purposes set forth in the count, hut the de *56 fendant is not liable to be sued in ejectment unless be lias wrongfully detained the tenement from the plaintiff on his demand therefor; and it is, therefore, necessary that a wrongful detainer should be averred. Doubtless it would have been sufficient if the declaration had, averred generally a wrongful detainer as applicable to all the counts, the original as well as that contained in the amendment. The declaration, however, contains no such general allegation. The wrongful detainers alleged form the conclusions of the three counts in the original declaration and are applicable only to the causes of action set forth in those counts.

Benjamin M. Bosworth, for plaintiff. Edward D. Bassett & Thomas J. McParlin, for defendant.

Exceptions sustained and case remitted to the Special Court of Common Pleas for a new trial.

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Bluebook (online)

25 A. 652, 18 R.I. 55, 1892 R.I. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whipple-v-mcginn-ri-1892.