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

Persons legitimately made parties to suits in equity may belong to three classes: First, proper parties; second, necessary parties; and, third, indispensable parties. The phrases "proper parties," "necessary parties," and "indispensable parties," in their technical sense, are distinguishable from one another; each denoting a separate and independent class. But in a broader sense the first is the most, and the last the least, comprehensive class, for "proper parties" may or may not be either necessary or indispensable, and "necessary parties" may or may not be indispensable. In the same broad sense an indispensable party is both a necessary and a proper party, and, though a necessary party may or may not be indispensable, he is nevertheless a proper party. The distinction between a necessary and an indispensable party, while doing violence to the English language in its usual acceptation, has been recognized for the purpose of determining the question whether some of those who, under the well-established rules of equity pleading and practice, were deemed necessary parties may not, under existing rules governing pleading and practice in equity, be dispensed with as parties in order that equitable relief in a given case may not wholly fail. Mathieson v. Craven, 164 Fed. 471, 475.

Of corporation

The power given to a railway company to do all acts incidental to the maintenance of the road includes the right to lay conduits in its right of way to conduct water to its buildings, whether the right of way traverses private property or a city street, being a reasonably "necessary" incident to the maintenance of the road. Mayor, etc., of City of Canton v. Canton Cotton Warehouse Co., 36 South. 266, 272, 84 Miss. 268, 65 L. R. A. 561, 105 Am. St. Rep. 428. NECESSARY PURPOSES

Furnishing light and water for public purposes is a "necessary purpose," and the cost thereof is a "necessary expense" of municipalities furnishing the same. Wadsworth v. City of Concord, 45 S. E. 948, 950, 133 N. C. 587.

NECESSARY REPAIRS

A covenant by a tenant to make "necessary repairs" means only such repairs as the tenant finds necessary for his use of the premises, and does not require him to put the premises in better condition than they were at the beginning of the tenancy. Tinsley v. Smith, 101 N. Y. Supp. 382, 385, 115 App. Div. 708 (citing and construing White v. Albany Ry. [N. Y.] 17 Hun, 98).

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 parties or not; but where they are only "proper parties," the right to complain that they were not made parties may be waived by delay. Biggs v. Miller (Tex.) 147 S. W. 632, 637.

NECESSARY POLICE ORDINANCES

City and Village Act (Hurd's Rev. St. 1903, p. 291) art. 5, § 1, subds. 4, 9, 15, 20, 41, 66, 78, 96, empowering cities to regulate traffic on the streets and sidewalks, to license, tax, regulate, suppress, and prohibit peddlers, to make all regulations which may be necessary for the promotion of health, and to pass all ordinances and make all regulations necessary to carry into effect the powers granted to such cities, etc. Held, that by the word "necessary" indispensable was not intended, but power was conferred on the city to pass all ordinances which would be conducive to the promotion of the health, safety, and welfare of its inhabitants, which power may reasonably be held to include the power to pass an ordinance regulating in a reasonable manner the handling of oils in tank wagons, or other wagons or vehicles

the making of necessary repairs to roads, legally designated for expenditure of money in their repair, means emergency repairs or such repairs on roads as were necessary to make travel safe, so that the duty of the county to travelers upon its highways might still be discharged. Webster v. Douglas Co., 77 N. W. 885, 888, 102 Wis. 181, 72 Am. St. Rep. 870.

A party wall agreement, providing that each party shall contribute equally if it shall become "necessary" to repair and rebuild, cannot be defeated by either party saying it is not necessary to repair or rebuild. Maupai v. Jackson, 118 N. Y. Supp. 513, 517, 64 Misc. Rep. 407.

To vessel

Although the master of a ship in a foreign port has authority to procure all supplies and repairs "necessary" for the safety of the ship and the due performance of the voyage, on the credit of the owner, he must be restricted to such repairs and supplies as are in a just sense necessary for the ship under the actual circumstances of the voyage, 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. NECESSARY RISK

Laws 1902, p. 1750, c. 600, § 3, providing that an employé, by entering on or continuing in the employer's service, shall be presumed to have assented to the necessary risks of the employment, such risks including those inherent in the nature of the business, after the employer has exercised due care for the safety of employés, and complied with laws regulating such business, distinguishes between "necessary risk" and "obvious risk," which latter may be due to the master's failure to perform his duty. Hurley v. Olcott, 119 N. Y. Supp. 430, 435, 134 App. Div. 631. The New York statute defining "necessary risks" as those "inherent in the nature of the business, which remain after the employer has exercised due care in providing for the safety of his employés," is but declaratory of the common law. Logerto v. Central Bldg. Co., 108 N. Y. Supp. 604, 607, 123 App. Div. 840 (citing Benzing v. Steinway, 5 N. E. 449, 101 N. Y. 547). See, also, O'Neil v. Karr, 97 N. Y. Supp. 148, 150, 110 App. Div. 571; Wynkoop v. Ludlow Valve Mfg. Co., 98 N. Y. Supp. 1076, 1077, 112 App. Div. 729.

The risk of injury to a servant who, at the suggestion of his foreman, thrust his hand into a wooden box, in which a screw with sharp blades was rapidly revolving, in order to loosen cement in a chute leading into the box, knowing the cement was liable to fall in such quantities as to drive his arm against the screw, was not a "necessary risk" of the business, which are the only risks that an employé is conclusively presumed not to assume, as provided by Employers' Liability Act (Laws 1902, p. 1750, c. 600, § 3). Vaughn v. Glens Falls Portland Cement Co., 93 N. Y. Supp. 979, 980, 105 App. Div. 136.

NECESSARY ROAD

The term "necessary plantation roads," as used in Code 1906, § 4058, requiring their construction and maintenance by railroads, means roads necessary to the plantation to which they are annexed, and, while an occasional and isolated use of the crossing by others would not relieve the company from liability to maintain it, the company is not

bound to maintain the crossing in good condition and make repairs necessitated by constant heavy driving, done by others than the owner with his consent. Illinois Cent. R. Co. v. McGowan, 46 South. 55, 56, 92 Miss. 603; Bentley v. Cavallier, 46 South. 55, 56, 92

Miss. 603.

Board of Railroad Com'rs of State of New
York, 108 N. Y. Supp. 288, 289, 124 App. Div.
47.

NECESSARY SELF-DEFENSE
See Self-Defense.

NECESSARY SUPPLIES

Food supplies ordered by the master of a fishing schooner, who was also managing owner, for the use of the crew on a fishing voyage, under the usual lay contracts, in the absence of any showing of bad faith on his part, will be presumed to be supplies "necessary" for the employment of the vessel, within the meaning of the Maine statute giving a lien for such supplies, and the court will not undertake to determine that certain of the articles were "luxuries" for which the

vessel is not liable. The term "luxuries" is

an entirely relative term. The Mary F. Chisholm, 133 Fed. 598, 600.

Ky. St. § 4426a, subd. 9, provides that the board of education shall lay before the fiscal court the educational needs of the county, and the county shall levy a tax for school purposes, not exceeding 20 cents on each $100, and the proceeds of the tax shall be turned over to the county superintendent, and the county board shall expend the money for certain designated purposes, including the purchase of "necessary supplies" and the "extension of the school term" in the subdistricts; and that upon petition of 10 voters of a subdistrict the board of education shall submit to a vote the question whether an additional tax shall be levied, and when levied it shall be the duty of the sheriff to collect it and hold it, subject to the order of the county board, for the benefit of the subdistrict voting such tax. Held, that such additional tax was to be expended, under the

order of the board of education, for the sole use of the subdistrict levying it, and for the purposes enumerated in the statute, and the board had no power to use an additional tax

levy for the purpose of transporting children to and from school; such purpose not being mentioned in the statute and not coming within the terms "necessary supplies" or "extension of school term." Shanklin v. Boyd, 142 S. W. 1041, 1042, 1043, 146 Ky. 460, 38 L. R. A. (N. S.) 710.

NECESSARY TO HOLD MINING CLAIM

Comp. Laws, § 231, provides that certificates of location and of labor and improvements necessary to hold claims need not be sworn to, but must truly state the required 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.2d Ser.-35

prior to the issuance of patent. Ford Campbell, 92 Pac. 206, 209, 29 Nev. 578. NECESSARY TRAVELING EXPENSE

v. house and City Hall Com'rs of City of Min-
neapolis and County of Hennepin v. Cooley, 58
N. W. 153, 56 Minn. 551).

The use of automobiles by commissioners of appraisal in condemnation proceedings is not a "necessary expense" or "necessary trayeling expense," which under Laws 1905, c. 725, § 5, and chapter 724, § 32, is to be allowed them, there being railroads, on which many trains run, going very near all parts of the lands, and livery teams being accessible; the statute contemplating the ordinary method of travel. In re Bensel, 124 N. Y. Supp.

716, 723.

NECESSARY VEGETABLES

The term "necessary," as used in Code Civ. Proc. § 1390, providing that all "necessary vegetables" actually provided for family use should be exempt from levy, is a word of qualification, and qualifies the extent of the exemption. McCarthy v. McCabe, 115 N. Y. Supp. 829, 832, 131 App. Div. 396.

NECESSARY WAY

See Way of Necessity.

NECESSITIES

For conduct of business and transac-
tion of affairs by corporation

"When it comes to determining what is
'necessary' for the conduct of the business
and transaction of the affairs for which
a corporation has been chartered, it must,
of course, be understood that what is meant
is a due and profitable prosecution of its
lawful purposes; that the 'necessity' contem-
plated is a relative one, having reference
to economy, convenience, efficiency, and suc-
cess; and that some latitude is to be allowed
to the discretion of the corporation itself
in deciding what, from time to time, is or is
not, in that sense, 'necessary.'
Folk v.
State Capital Savings & Loan Ass'n, 63 Atl.
1013, 1016, 214 Pa. 529.

For easement to enjoy property

Under the rule that all continuous and apparent quasi easements as are reasonably necessary to the enjoyment of the property granted pass to the grantee, mere inconvenience will not constitute such necessity. The test of such necessity is held to be the question whether the grantee might at a reason

See Actual Necessities; As Their Neces- able expense procure for himself an enjoysities Might Require.

Plumbers' supplies are "necessities" of life and a staple commodity, and a combination controlling such supplies to the extent that it either does, or tends to, prevent or restrain competition may be prohibited. Knight & Jillson Co. v. Miller, 87 N. E. 823, 832, 172 Ind. 27, 18 Ann. Cas. 1146.

NECESSITY

See Inevitable Necessity; Law of Necessity; Paramount Necessity; Public Necessity; Way of Necessity.

ment of a similar easement. Two persons,
owning in common land on which were two
houses, partitioned it by deed, giving each
one of the houses, the boundary line being in
an alley between the houses and providing
that the alley should be kept open for the
use and benefit of the owners of the lots, for-
ever, but making no mention of the drain and
stairway on the dividing line. Held that, it
not being reasonably necessary that either
grantee should have the part of the drain
or stairway on the land of the other main-
tained, no easement was to be implied. Gay-
nor v. Bauer, 39 South. 749-751, 144 Ala.
448, 3 L. R. A. (N. S.) 1082 (citing Tied. Real
Prop. § 609; Walker v. Clifford, 29 South.
588, 128 Ala. 74, 86 Am. St. Rep. 74; Washb.
Easem. [4th Ed.] 107).

For forwarding shipment by any car-
rier

The word "necessity," in common use, connotes different degrees of necessity. It sometimes means indispensable; at others, needful, requisite, incidental, or conducive. In its primary sense, it signifies a thing or act without which some other thing or act Plaintiff shipped two cars of phosphate cannot be done or exist. The word "necesrock from a point on defendant's railroad sary," as applied to the determination of an 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 signified by the words, "appropriate," "suitable," or "expedient." St. Louis Gunning Advertising Co. v. Wanamaker & Brown, 90 S. W. 737, 743, 115 Mo. App. 270.

connecting carriers. The bills of lading, however, contained a provision that the carrier should have the right "in case of necessity" to forward by any carrier, and that in such case plaintiff should bear the additional risk and cost. Defendant delivered the cars at 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

For class legislation

1

receive the cars and their retention by defendant would have brought about a congestion and blockade of its own line did not create a "necessity" within the meaning of the bills of lading which authorized defendant to subject plaintiff to the increased cost, being due to insufficiency of equipment on its own part and that of its connecting carrier. Dickerson v. Louisville & N. R. Co., 187 Fed. 874, 879.

For private way

The word "necessity" in Rev. St. 1899, § 2240, prohibiting labor on Sunday, excepting works of necessity, should be construed reasonably and neither too literally nor too liberally. State v. Chicago, B. & Q. R. Co., 143 S. W. 785, 787, 239 Mo. 196.

The word "necessity," in Kirby's Dig. § 2030, making it unlawful to work on Sunday except to perform "customary household duties of daily necessity, comfort, or charity," does not mean an absolute unavoidable physical necessity, but rather an economic and moral necessity. Barefield v. State, 107 S. W. 393, 85 Ark. 134.

The sending of a telegram by a husband to his wife, notifying her that he would not return as expected, is a "work of necessity," within Burns' Ann. St. 1908, § 2364, prohibit

Cases of necessity, contemplated in that provision of the Constitution which declares that 'in cases of necessity' private ways may be granted upon just compensation first being paid, do not arise except where the way sought to be laid out is absolutely indispensable to the applicant as a means of reaching his property. If there is in existing any work on Sunday, save that of charence a way suitable for all the purposes for ity and necessity. Western Union Telegraph which the property is to be used, a "case of Co. v. Fulling, 96 N. E. 967, 49 Ind. App. 172. necessity" does not arise, even though such The fact that in gathering a crop it is way may be less convenient than the one pro- somewhat less expensive and more convenposed. Charleston & W. C. Ry. Co. v. Flem-ient to work seven days in the week, rather ing, 45 S. E. 664, 666, 118 Ga. 699 (quoting and adopting Chattanooga, R. & S. R. Co. v. Philpot, 37 S. E. 181, 112 Ga. 153).

For suit by administrator

Where an administrator, being an attorney, finds it necessary to institute a suit in behalf of the estate and associates another attorney with him, and he and the other attorney jointly render professional services to the estate, the administrator is entitled to a credit on the settlement of the administration in the probate court to the extent of the reasonable value of such services. Tyson, J., in a dissenting opinion, said: "The 'necessity' spoken of in our cases, authorizing an allowance for compensation upon proof of it for professional services rendered by an administrator in a case like this, is one arising out of the duty of the administrator to enforce the collection of the claim by suit, and not out of any contract he may make with counsel to render him assistance in its collection." John v. Sharpe, 41 South. 635, 638, 148 Ala. 665.

NECESSITY (Sunday Labor)

The term "necessity," as employed in the Sunday statutes, is not an absolute, unavoidable, physical necessity, but rather an economic and moral necessity, and the necessity may grow out of or be incident to a particular trade or calling. Lane v. State (Tex.) 150 S. W. 637, 638 (quoting 5 Words and Phrases, p. 4729).

By the word "necessity," as it relates to the exemption of work of necessity on a day when work is forbidden, we are not to understand a physical and absolute necessity, but a moral fitness or propriety of the work done, under the circumstances of each particular case. State v. Lewis, 72 Pac. 121, 123, 31 Wash. 515.

than six, does not make such gathering a "work of necessity," within St. 1904, p. 477, c. 460, 2, making it a criminal offense to do any manner of labor, business, or work, except works of necessity and charity, on Sunday. Commonwealth v. White, 77 N. E. 636, 637, 190 Mass. 578, 5 L. R. A. (N. S.)

320.

Gen. St. 1902, § 1369, prohibits any secular business or labor except works of necessity or mercy, or engaging in any sport between midnight of Saturday and midnight of Sunday. Section 1370 makes it a penal offense to be present at any concert of music, dancing, or other public diversion on Sunday. Held, that the act of selling tickets on Sunday to a moving picture show to be held in an opera house on that day, and thereby promoting attendance at a place of public diversion, where it was unlawful for any one to be present, was not a "work of necessity or mercy." State v. Ryan, 69 Atl. 536, 537, 80 Conn. 582.

Pen. Code 1895, § 420, has made it legal to operate passenger and mail trains on Sunday. Therefore any work necessary to the running of such trains is a "work of necessity," within Pen. Code 1895, § 422, prohibiting the pursuing of business or work on the Lord's day. Kellam v. State, 67 S. E. 683, 7 Ga. App. 575.

Pen. Code 1895, § 420, making it a misdemeanor to run freight or excursion trains on Sunday, but allowing regular trains carrying mail or passengers to run on that day, is an expression of public policy as to the legality of running the excepted trains on Sunday, and a legislative construction that the running of mail and passenger trains is within the exception to section 422, making it a misdemeanor to pursue one's business on Sunday, if not a "work of necessity or char

ity." Southern Ry. Co. v. Wallis, 66 S. E. I calling, and is not a "work of necessity," per370, 372, 133 Ga. 553, 30 L. R. A. (N. S.) 401, mitted by Pen. Code 1895, § 422, to be done 18 Ann. Cas. 67. on the Lord's day. McCain v. State, 58 S. E. 550, 551, 2 Ga. App. 389 (citing State v. Frederick, 45 Ark. 347, 55 Am. Rep. 555).