Canon v. Ballard

52 A. 352, 63 N.J. Eq. 797, 18 Dickinson 797, 1902 N.J. LEXIS 181

Opinion

Per Curiam.

The bill in this ease was demurred to upon three grounds— first, for want of equity; second, for multifariousness; third, for non-joinder of a necessary party defendant. The demurrer was sustained un the ground of the non-joinder alone, the vice-chancellor considering that the objection to the bill on the ground of want of equity and also that of multifariousness were not well founded. We concur in the opinion of the vice-chancellor upon these points.

Notwithstanding that the demurrer was sustained, the demur-rant was refused costs. To this extent the order appealed from is erroneous. Section 32 of the Chancery act (Gen. Slat. p. 878) provides that when a bill is demurred to, “if the demurrer be allowed, the complainant shall pay costs.” This provision is mandatory; it leaves nothing to the discretion of the court.

The order appealed from, so far as it denies costs to the defendant upon his demurrer, must be reversed.

For reversal—'The Ci-iiee-Justice, Van Syckel, Dixon, Garrison, Collins, Garretson, Hendrickson, Bogert, Adams, Vredenburgh, Vroom—11. For affirmance—None.