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etc., he shall be punished. Defendant and construction of deeds. By these is not meant
his wife separated, the wife going to her a physical necessity, but a logical necessity.
father's house, taking with her one child of Where a clause is enlarged in its effect be
the marriage, and another was born at the yond the import of the words used on the
house of the wife's father, and both the chil- theory of an intent established by an impli-
dren were there supplied with all necessary cation, it must be necessary to so enlarge it
food, etc. Defendant after the separation in order to give effect to the plain and ex-
contri ted nothing to their support. Held, press provisions of other clauses, or the prob-
that “necessary” food, clothing, and lodging, ability of intent must be so strong that the
as used in the statute, is food, etc., which the contrary thereof cannot be supposed. Grif-
infant actually needed at the time; and that fin v. Fairmont Coal Co., 53 S. E. 24, 65, 59
as the infant children were receiving neces- W. Va. 480, 2 L. R. A. (N. S.) 1115.
sary food, etc., defendant was not guilty.

State v. Thornton, 134 S. W. 519, 520, 232
Mo. 298, 32 L. R. A. (N. S.) 841.

The word "necessary," as used in the

Constitution and laws of Montana, providNECESSARY FOR THE JOURNEY ing for the extension of the constitutional See Money Necessary for the Journey.

limit of municipal indebtedness when such

increase is "necessary” to construct a sewerNECESSARY FURNITURE

age system or procure a supply of water, on The words “necessary furniture," as used ratification by a vote of the taxpayers, dein Illinois Administration Act, $ 74 (Starr & fines the condition of affairs which requires

The condition C. Ann. St. 1896, c. 3, par. 74), allowing the the additional indebtedness. widow certain articles of property, such as must be such as to create the necessity. If bedsteads, bedding, and household and kitch- a municipality is not indebted in any amount en furniture, necessary for herself and fam- at all, or if it has the necessary funds in its ily, must be construed with reference to the treasury, no additional indebtedness can be circumstances and mode of life of the par- incurred; nor can it be said that any neties, and mean the ordinary and appropriate cessity has arisen demanding it. A city could furniture for such homesteads. Gillett v. only avail itself of the privilege of extension Gillett, 69 N. E. 942, 945, 207 Ill. 136 (quot- when the financial condition of the city reing Strawn v. Strawn, 53 I. 263).

quired a resort to it, and could not arbitra

rily declare a debt to be in the extended limNECESSARY IMPLICATION

it when the city was not indebted to the conPlain implication synonymous, see Plain

stitutional limit. Butler v. Andrus, 90 Pac. Implication.

785, 786, 35 Mont. 575. By "necessary implication" as used in NECESSARY INJURY the rule that it is possible for a testator to "The 'necessary injury' resulting to a dispose of property by necessary implication parent from the negligent killing of his minor from his will, taken as a whole, is meant so child, within the meaning of the damage act strong a probability of intention that an in- (Rev. St. 1899, $ 2866), consists in the loss tention contrary to that which is imputed to of services of the deceased during minority, the testator cannot be supposed. Coberly v. the cost of nursing, surgical and medical atEarle, 54 S. E. 336, 339, 60 W. Va. 295 (cit- tendance, and appropriate funeral expenses." ing Bartlett v. Patton, 10 S. E, 21, 33 W. Va. Coleman v. Himmelberger-Harrison Land & 71, 5 L. R. A. 523; Graham v. Graham, 23 Lumber Co., 79 S. W. 981, 987, 105 Mo. App. W. Va. 36, 48 Am. Rep. 364; Beard v. Beard, 254 (quoting and adopting definition in Rains 22 W. Va. 130; Irwin v. Zane, 15 W. Va. v. St. Louis, I. M. & S. Ry. Co., 71 Mo. 164, 646).

36 Am. Rep. 459). "Necessary implication" means, not nat

The term “necessary injury," as used in ural necessity, but so strong a probability Rev. St. 1899, $ 2866, relating to damages in of an intention that an intention contrary to death actions, authorizing damages not esthat which is imputed to the testator cannot ceeding $5,000, as may be deemed fair and be imposed. Galloway v. Durham, 81 S. W. just with reference to the "necessary injury" 659, 660, 118 Ky. 544, 111 Am. St. Rep. 300 resulting to the surviving parties, etc., does (quoting 1 Ves. & B. 468).

not include more than pecuniary injury. "Necessary implication,” in cases on the Brunke v. Missouri & K. Telephone Co., 87 construction of instruments, means, not nat. S. W. 84, 85, 112 Mo. App. 623. ural necessity, but so strong a probability of

Under Rev. St. 1899, § 2865, authorizing intention that an intention contrary to that an action for the death of a person caused by which is imputed cannot be supposed. Tut- wrongful act, etc., and section 2866, providing tle v. Woolworth, 77 Atl. 684, 686, 74 N. J. that the jury may give such damages as they Eq. 310.

may deem fair and just with reference "to The phrases “plain implication" and the necessary injuries resulting from” such "necessary implication” have exactly the death, the measure of damages in an action same meaning, when used in reference to the' by a parent for the wrongful death of his

minor son does not include loss of comfort ! on the death of the grantee in a deed sought and society of the son; the words "neces- to be set aside for fraud. Hagan v. McDersary injury" meaning "pecuniary injury,” mott, 115 N. W. 138, 140, 134 Wis. 490. But and confining damages to property loss. not an agent to whom a deed absolute in Marshall v. Consolidated Jack Mines Co., 95 form was executed as security for a debt to S. W. 972, 973, 119 Mo. App. 270.

the principal. In re Russell's Estate, 84

Pac. 155, 156, 148 Cal. 768. NECESSARY LITIGATION

"Necessary parties" are all those who Litigation to determine doubtful questions as to the liability of transferees for the have an interest in the subject and

object of

the action, and all persons against whom inheritance tax, and delays occasioned there

relief must be obtained to accomplish the by, is “necessary litigation or other unavoidable delay," within Laws 1903, p. 69, c. 44, & line Canal & Reservoir Co., 98 Pac. 16, 19,

object of the suit. McLean v. Farmers' High6, providing that in such case the penalty of

44 Colo. 184. 10 per cent. interest for nonpayment of the tax shall not be imposed. State v. Pabst, 121

"Parties in equity are: (1) Formal par

ties. N. W. 351, 361, 139 Wis. 561.

(2) Persons having an interest in the

controversy, and who ought to be made parNECESSARY PARTIES

ties in order that the court may act on that See Not a Necessary Party.

rule which requires it to decide on, and final

ly determine, the entire controversy, and do Persons who not only have an interest complete justice, by adjusting all the rights in the controversy, but an interest of such a involved in it. These persons are commonly nature that a final decree cannot be made termed 'necessary parties”; but if their interwithout affecting that interest, or leaving the ests are separable from those of the parties controversy in such a condition that its final before the court, so that the court can prodetermination may be wholly inconsistent

ceed to a decree, and do complete and final with equity and good conscience, are “nec justice, without affecting other persous not essary parties.” Disbrow v. Creamery Pack- before the court, the latter are not indisage Mfg. Co., 115 N. W. 751, 752, 104 Minn. 17; Perkins v. Hendryx, 149 Fed. 526, 528. pensable parties. (3) Persons who not only

have an interest in the controversy but The words “necessary" and "indispensa- an interest of such a nature that a final ble" have sometimes been considered synony- decree cannot be made without either affectmous, and parties in equity have been classi- ing that interest, or leaving the controversy fied as “necessary parties” and “proper par- in such a condition that its final termination ties." Railroad Commission of Georgia v. may be wholly inconsistent with equity and Palmer Hardware Co., 53 S. E. 193, 195, 124 good conscience.” “The relation of an inGa. 633.

dispensable party to the suit must be such A distinction has been recognized be that no decree can be entered in the case tween necessary and indispensable parties, to which will do justice between the parties acascertain whether some of those, who under tually before the court, without injuriously the established rules of equity pleading and affecting the rights of such absent party.” practice were deemed necessary, may not, United States v. Allen, 179 Fed. 13, 21, 103 under such rules, be dispensed with as par. in Shields v. Barrow, 17 How. [58 U. S.) 130,

C. C. A. 1 (quoting and adopting definition ties, that equitable relief in a given case may 139, 15 L. Ed. 158; Waterman v. Canal-Louisinot wholly fail. Mathieson v. Craven, 164

ana Bank & Trust Co., 30 Sup. Ct. 10, 215 U. Fed. 471, 475.

S. 33, 49, 54 L. Ed. 80). “ 'Necessary parties, when the term is

The use of the word "indispensable," as accurately used, are those without whom no

distinguished from "proper” or “necessary," decree at all can be effectively made determining the principal issues in the cause.” parties is stated in the citation of a case

holding that an indispensable party is one Leonard v. Pierce, 75 N. E. 313, 315, 182 N: whose interest in the subject-matter of the Y. 431, 1 L. R. A. (N. S.) 161 (quoting and controversy is such that a final decree cannot adopting definition in Pomeroy's Remedies & be rendered between the other parties to the Remedial Rights, 8 329).

suit without radically and injuriously affectAll persons who are interested in the ing his interest, or without leaving the consubject-matter of a suit, and who will be troversy in such a situation that its final affected by the results thereof, are “necessa- determination may be inconsistent with equiry parties." Sweeney v. Foster, 71 S. E. ty and good conscience. Defendants who 548, 550, 112 Va. 499. Such as beneficiaries were joined in a suit in a state court to and trustees. Mitau v. Roddan, 84 Pac. 145, recover .an interest in lands only as trustees 147, 149 Cal. 1, 6 L. R. A. (N. S.) 275; Benton holding the paramount title in trust, and v. Benton, 115 Pac, 535, 536, 84 Kan. 691. Or whose title as such was not disputed, held the owners in proceedings to condemn land. not indispensable parties, whose citizenship Kansas City Interurban Ry. Co. v. Davis, 95 and residence in the same state as comS. W. 881, 884, 197 Mo. 669, 114 Am. St. Rep. plainant would prevent a removal of the 790. Or the persons in whom the title vested cause by the other defendants, who were the

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real parties in interest. Lawrence v. South-, on the streets of the city. Spiegler v. City ern Pac. Co., 165 Fed. 241, 243 (citing Rogers of Chicago, 74 N. E. 718-721, 216 Ill. 114. v. Penobscot Min. Co., 154 Fed. 606, 83 C. C. A. 380).

NECESSARY POWERS Proper parties distinguished

Of corporation Persons legitimately made parties to The power given to a railway company suits in equity may belong to three classes: to do all acts incidental to the maintenance First, proper parties; second, necessary par- of the road includes the right to lay conties; and, third, indispensable parties. The duits in its right of way to conduct water phrases “proper parties," “necessary parties," to its buildings, whether the right of way and "indispensable parties,” in their techni- traverses private property or a city street, cal sense, are distinguishable from one an- being a reasonably “necessary” incident to other; each denoting a separate and inde- the maintenance of the road. Mayor, etc., pendent class. But in a broader sense the of City of Canton v. Canton Cotton Warefirst is the most, and the last the least, com- house Co., 36 South. 266, 272, 84 Miss. 268, 65 prehensive class, for “proper parties" may L. R. A. 561, 105 Am. St. Rep. 428. or may not be either necessary or indispensa

NECESSARY PURPOSES ble, and “necessary parties" may or may not be indispensable. In the same broad sense Furnishing light and water for public an indispensable party is both a necessary purposes is a "necessary purpose," and the and a proper party, and, though a necessary cost thereof is a “necessary expense" of muparty may or may not be indispensable, he nicipalities furnishing the same. Wadsworth is nevertheless' a proper party. The dis- v. City of Concord, 45 S. E. 948, 950, 133 N. tinction between a necessary and an in- C. 587. dispensable party, while doing violence to the English language in its usual accepta

NECESSARY REPAIRS tion, has been recognized for the purpose of A covenant by a tenant to make "necesdetermining the question whether some of sary repairs" means only such repairs as those who, under the well-established rules the tenant finds necessary for his use of the of equity pleading and practice, were deem- premises, and does not require him to put ed necessary parties may not, under existing the premises in better condition than they rules governing pleading and practice in were at the beginning of the tenancy. Tinsequity, be dispensed with as parties in order ley v. Smith, 101 N. Y. Supp. 382, 385, 115 that equitable relief in a given case may not App. Div. 708 (citing and construing White wholly fail. Mathieson v. Craven, 164 Fed. v. Albany Ry. [N. Y.) 17 Hun, 98). 471, 475.

The words “necessary repairs," in an or "Necessary parties” to a suit are parties der enjoining county officers from doing road who are so vitally interested in the subject- work or spending money under a certain matter that a valid decree could not be ren- resolution, and from expending money after dered without their presence, whether there an annual levy was exhausted, excepting for was an objection to a failure to make them the making of necessary repairs to roads, parties or not; but where they are only legally designated for expenditure of money “proper parties,” the right to complain that in their repair, means emergency repairs or they were not made parties may be waived such repairs on roads as were necessary to by delay. Biggs v. Miller (Tex.) 147 $. W. make travel safe, so that the duty of the 632, 637.

county to travelers upon its highways might

still be discharged. Webster v. Douglas Co., NECESSARY POLICE ORDINANCES

77 N. W. 885, 888, 102 Wis. 181, 72 Am. St. City and Village Act (Hurd's Rev. St. Rep. 870. 1903, p. 291) art. 5, § 1, subds. 4, 9, 15, 20, 41, 66, 78, 96, empowering cities to regulate each party shall contribute equally if it shall

A party wall agreement, providing that traffic on the streets and sidewalks, to li- become "necessary" to repair and rebuild, cense, tax, regulate, suppress, and prohibit cannot be defeated by either party saying peddlers, to make all regulations which may it is not necessary to repair or rebuild. Maube necessary for the promotion of health, and pai v. Jackson, 118 N. Y. Supp. 513, 517, 64 to pass all ordinances and make all regula- Misc. Rep. 407. tions necessary to carry into effect the powers granted to such cities, etc. Held, that by

To vessel the word "necessary" indispensable was not Although the master of a ship in a forintended, but power was conferred on the eign port has authority to procure all supcity to pass all ordinances which would be plies and repairs “necessary" for the safety conducive to the promotion of the health, of the ship and the due performance of the safety, and welfare of its inhabitants, which voyage, on the credit of the owner, he must power may reasonably be held to include be restricted to such repairs and supplies as the power to pass an ordinance regulating are in a just sense necessary for the ship in a reasonable manner the handling of oils under the actual circumstances of the voyage, in tank wagons, or other wagons or vehicles and a suit against the owner for their value

cannot be maintained without proof that such, ers that it was “necessary and convenient" repairs and supplies were necessary. Whit- was erroneous. People ex rel. Potter v. ten v. Tisdale, 43 Me. 451, 452.

Board of Railroad Com’rs of State of New

York, 108 N. Y. Supp. 288, 289, 124 App. Div. NECESSARY RISK

47. Laws 1902, p. 1750, C. 600, § 3, providing that an employé, by entering on or contin- NECESSARY SELF-DEFENSE uing in the employer's service, shall be pre- See Self-Defense. sumed to have assented to the necessary risks of the employment, such risks including those

NECESSARY SUPPLIES inherent in the nature of the business, after Food supplies ordered by the master of the employer has exercised due care for the a fishing schooner, who was also managing safety of employés, and complied with laws owner, for the use of the crew on a fishing regulating such business, distinguishes be- voyage, under the usual lay contracts, in the tween “necessary risk” and “obvious risk,” | absence of any showing of bad faith on his which latter may be due to the master's fail part, will be presumed to be supplies “necesure to perform his duty. Hurley v. Olcott, sary” for the employment of the vessel, with119 N. Y. Supp. 430, 435, 134 App. Div. 631. in the meaning of the Maine statute giving

The New York statute defining “neces- a lien for such supplies, and the court will sary risks” as those "inherent in the nature not undertake to determine that certain of of the business, which remain after the em- the articles were "luxuries” for which the

vessel is not liable. The term "luxuries" is ployer has exercised due care in providing for the safety of his employés," is but dec- an entirely relative term. The Mary F. Chislaratory of the common law. Logerto v. Cen- holm, 133 Fed. 598, 600. tral Bldg. Co., 108 N. Y. Supp. 604, 607, 123 Ky. St. § 4426a, subd. 9, provides that App. Div. 840 (citing Benzing v. Steinway, the board of education shall lay before the 5 N. E. 449, 101 N. Y. 547). See, also, O'Neil fiscal court the educational needs of the v. Karr, 97 N. Y. Supp. 148, 150, 110 App. Div. county, and the county shall levy a tax for 571; Wynkoop v. Ludlow Valve Mfg. Co., 98 school purposes, not exceeding 20 cents on N. Y. Supp. 1076, 1077, 112 App. Div. 729.

each $100, and the proceeds of the tax shall The risk of injury to a servant who, at be turned over to the county superintendent, the suggestion of his foreman, thrust his and the county board shall expend the money

for certain designated purposes, including hand into a wooden box, in which a screw with sharp blades was rapidly revolving, in "extension of the school term” in the sub

the purchase of “necessary supplies" and the order to loosen cement in a chute leading districts; and that upon petition of 10 voters into the box, knowing the cement was liable of a subdistrict the board of education shall to fall in such quantities as to drive his arm submit to a vote the question whether an adagainst the screw, was not a “necessary risk” ditional tax shall be levied, and when levied of the business, which are the only risks that it shall be the duty of the sheriff to collect an employé is conclusively presumed not to it and hold it, subject to the order of the assume, as provided by Employers' Liability county board, for the benefit of the subdisAct (Laws 1902, p. 1750, c. 600, $ 3). Vaughn trict voting such tax. Falls Portland Cement Co., 93 N. Y. ditional tax was to be expended, under the

Held, that such adSupp. 979, 980, 105 App. Div. 136.

order of the board of education, for the sole NECESSARY ROAD

use of the subdistrict levying it, and for the The term "necessary plantation roads,” purposes enumerated in the statute, and the as used in Code 1906, § 4058, requiring their board had no power to use an additional tax construction and maintenance by railroads,

levy for the purpose of transporting children

to and from school; such purpose not being means roads necessary to the plantation to which they are annexed, and, while an occa- within the terms “necessary supplies” or “ex

mentioned in the statute and not coming sional and isolated use of the crossing by others would not relieve the company from tension of school term.” Shanklin v. Boyd, liability to maintain it, the company is not 142, S. W. 1041, 1042, 1043, 146 Ky. 460, 38

L. R. A. (N. S.) 710. bound to maintain the crossing in good condition and make repairs necessitated by con. NECESSARY TO HOLD MINING CLAIM stant heavy driving, done by others than the

Comp. Laws, $ 231, provides that certifowner with his consent. Illinois Cent. R. Co. icates of location and of labor and improve. v. McGowan, 46 South. 55, 56, 92 Miss. 603; ments necessary to hold claims need not be Bentley v. Cavallier, 46 South. 55, 56, 92 sworn to, but must truly state the required Miss. 603.

facts. Held, that the words "necessary to Where a proposed railroad, only 12 miles hold claims" did not refer to "certificates of in length, to be built as an independent road, location," but only to the words “labor and would serve only a small locality, would improvements," which referred to the proviprobably not earn running expenses, and sions of the federal statutes requiring the would be financially disabled from the start, expenditure of $100 annually in labor or ima finding by the board of railroad commission-'provements in order to hold a mining claim

3 WDS. & P.20 SER.-35


prior to the issuance of patent. Ford v. house and City Hall Com'rs of City of MinCampbell, 92 Pac. 206, 209, 29 Nev. 578. neapolis and County of Hennepin v. Cooley, 58


For conduct of business and transacThe use of automobiles by commissioners

tion of affairs by corporation of appraisal in condemnation proceedings is not a “necessary expense" or "necessary trav

"When it comes to determining what is eling expense,” which under Laws 1905, C.

'necessary' for the conduct of the business 725, § 5, and chapter 724, 32, is to be allow- and transaction of the affairs for which ed them, there being railroads, on which a corporation has been chartered, it must, many trains run, going very near all parts of of course, be understood that what is meant the lands, and livery teams being accessible; is a due and profitable prosecution of its the statute contemplating the ordinary meth- lawful purposes ; that the 'necessity' contemod of travel. In re Bensel, 124 N. Y. Supp. plated is a relative one, having reference 716, 723.

to economy, convenience, efficiency, and suc

cess; and that some latitude is to be allowed NECESSARY VEGETABLES

to the discretion of the corporation itself The term “necessary,” as used in Code in deciding what, from time to time, is or is Civ. Proc. $ 1390, providing that all “neces- not, in that sense, 'necessary.'” Folk v. sary vegetables" actually provided for family State Capital Savings & Loan Ass'n, 63 Atl. use should be exempt from levy, is a word 1013, 1016, 214 Pa. 529. of qualification, and qualifies the extent of

For easement to enjoy property the exemption. McCarthy v. McCabe, 115

Under the rule that all continuous and N. Y. Supp. 829, 832, 131 App. Div. 396.

apparent quasi easements as are reasonably NECESSARY WAY

necessary to the enjoyment of the property See Way of Necessity.

granted pass to the grantee, mere inconvenience will not constitute such necessity. The

test of such necessity is held to be the quesNECESSITIES

tion whether the grantee might at a reasonSee Actual Necessities; As Their Neces

able expense procure for himself an enjoy. sities Might Require.

ment of a similar easement. Two persons,

owning in common land on which were two Plumbers' supplies are “necessities” of houses, partitioned it by deed, giving each life and a staple commodity, and a combina- one of the houses, the boundary line being in tion controlling such supplies to the extent an alley between the houses and providing that it either does, or tends to, prevent or that the alley should be kept open for the restrain competition may be prohibited.

use and benefit of the owners of the lots, forKnight & Jillson Co. v. Miller, 87 N. E. 823, ever, but making no mention of the drain and, 832, 172 Ind. 27, 18 Ann. Cas. 1146.

stairway on the dividing line. Held that, it

not being reasonably necessary that either NECESSITY

grantee should have the part of the drain

or stairway on the land of the other mainSee Inevitable Necessity; Law of Neces- tained, no easement was to be implied. Gay.

sity; Paramount Necessity; Public nor v. Bauer, 39 South. 749–751, 144 Ala. Necessity; Way of Necessity.

448, 3 L. R. A. (N. S.) 1082 (citing Tied. Real The word "necessity," in common use, Prop. § 609; Walker v. Clifford, 29 South. connotes different degrees of necessity. It | 588, 128 Ala. 74, 86 Am. St. Rep. 74; Washb. sometimes means indispensable; at others, Easem. [4th Ed.] 107). needful, requisite, incidental, or conducive.

For forwarding shipment by any carIn its primary sense, it signifies a thing

rier or act without which some other thing or act cannot be done or exist. The word “neces

Plaintiff shipped two cars of phosphate sary,” as applied to the determination of an rock from a point on defendant's railroad agent's power to do an incidental act, should to a point in another state, the rate stated be held to mean an act or measure requisite in the bills of lading being that fixed by a to enable him to discharge his main duty

joint schedule filed by defendant and other something more urgently required than is connecting carriers. The bills of lading, howsignified by the words, “appropriate," "suit- ever, contained a provision that the carrier able," or "expedient.” St. Louis Gunning Ad- should have the right "in case of necessity" vertising Co. v. Wanamaker & Brown, 90 to forward by any carrier, and that in such S. W. 737, 743, 115 Mo. App. 270.

case plaintiff should bear the additional risk

and cost. Defendant delivered the cars at For class legislation

Cincinnati to a railroad which was not a By “necessity,” which permits legisla-party to the through schedule, and plaintiff tion on a subject to be divided into classes, is was required to pay a substantially higher meant practical, and not absolute, necessity. rate. Held, that the fact that there was a Pepin Tp. v. Sage, 129 Fed. 657, 665, 64 c. congestion of traffic at Cincinnati because C. A. 169 (citing State ex rel. Board of Court- of which the connecting carrier refused to

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