William P. Dawson & Co. v. Marriott

3 Balt. C. Rep. 461

• Court: Baltimore City Court
• Decided: October 10, 1916
• Status: Published

Opinion

BOND, J.—

Under the authorities these pleas are clearly inconsistent as they stand, although their meaning is clear and the intended defense is legitimate. The pleas would, therefore, as was said at the hearing, be held bad upon demurrer. But I am reminded that the step actually taken by the plaintiff is that of a motion ne recipiatur. This action has been taken more than once in these cases; but I cannot see the slightest reason for such an extension of the meaning and purpose of the motion. The objection has always been one pressed by means of a demurrer, the motion ne recipiatur was never designed for such use. And as I consider that one who resorts to such an exercise in common law pleading should be kept strictly to the rules he plays with, I shall hold this motion inappropriate and overrule it.

The appropriate actions would be, I think, demurrer and motion to enter judgment for want of sufficient pleas under the Rule Day Act. I think that motion would have to be granted and judgment entered; but, as I said to the plaintiff at the hearing, I consider that justice would require that the judgment should be stricken out at once, and I should so order upon a motion presented by the defendant.