Whipple v. McGinn , 18 R.I. 55 ( 1892 )

This is an action of ejectment. The question raised by the defendant's exceptions is the sufficiency of the count contained in the plaintiffs 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. R.I. cap. 80, § 4, annuls the title of a tenant who uses the tenement for the illegal purposes set forth in the count, but the defendant is not liable to be sued in ejectment unless he has 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.

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