"Necessary and Useful for Public or Private Purposes."- As used in the Pennsylvania Lateral Railroad act of 1832, 1, in the clause, "necessary and useful for public or private purposes," it refers not to an absolute but a reasonable necessity. Hays v. Briggs, 3 Pittsb. (Pa.) 504. "Necessary Land for Making a Railway."--An exception, in a contract for sale of an estate, of "necessary land for making a railway," renders the contract void for uncertainty. Pearce v. Watts, 44 L. J. Ch. 492; L. R., 20 Eq. 492. Where the right exists to get the minerals under land, and for that purpose has been granted the right to construct "necessary" or "convenient" ways, the test of the proper exercise of such right is "whether the direction chosen has been such as a person of reasonable and ordinary skill and experience would have selected beforehand, and whether the mode adopted has been such as a prudent and rational person would have adopted if he had been making the road upon his own land and not upon the land of another." Abson v. Fenton, B. & C. 196; 15 Morr. Min. Rep. 215. "Necessary outgoings,"deductible from the annual value of a succession (§ 22, 16 & 17 V., ch. 51), mean "permanent charges made on the occupier of the property-such as repairs, poor rates, highway, sewer and county rates, drainage rates and the like;" but income tax or commission to agent is not included. Re Elwes, 28 L. J. Ex. 46; 3 H. & N. 719; Re Cowley, L. R., 1 Ex. 288. Necessary Disbursements.-Means actual expenses. Wolf v. McGavock, 24 Wis. 54. See also De Witt v. Swift, 3 How. Pr. (N. Y.) 282. "Necessary and proper," occurring in art. 1, § 8, ch. 8, of U. S. Constitution, empowering congress to make laws "necessary and proper" for carrying its express provisions into effect, are thus construed by C. J. MARSHALL: "It would be incorrect, and would lead to endless difficulties, if the opinion should be maintained that no law was authorized which was not indispensably necessary to give effect to a specified power. Where various systems might be adopted for that purpose, it might be said, with respect to each, that it was not necessary, because the end might be attained by other means. Congress must possess the choice of means, and must be empowered to use any means which are, in fact, conducive to the exercise of a power granted by the constitution." United States v. Fisher, 2 Cranch (U. S.) 358; McCulloch v. Maryland, 4 Wheat. (U. S.) 413; Martin v. Hunter, i Wheat. (U. S.) 304; Juilliard v. Greenman, 110 U. S. 440; Thayer v. Hedges, 23 Ind. 146; Wayman v. Southard, 10 Wheat. (U.S.) 1; Harris Am. Const. Law 106. And see Legal Tender Case, 12 Wall. (U. S.) 457; Harris Am. Const. Law 103-108. "It must be taken then as finally settled, so far as judicial decisions can settle anything, that the words 'all laws necessary and proper for carrying into execution' powers expressly granted or vested, have, in the constitution, a sense equivalent to that of the words, laws, not absolutely necessary, indeed, but appropriate, plainly adopted to constitutional and legitimate ends; laws not prohibited, but consistent with the letter and spirit of the constitution; laws really calculated to effect objects entrusted to the government. CHASE, CH. J., in Hepburn v. Guswold, 8 Wall. (U.S.) 603. See also CONSTITUTIONAL LAW, 3 Ăm. & Eng. Encyc. of Law 701. "Works Necessary and Convenient for Traffic."-By "works necessary and convenient for traffic," in a deed, is meant, not those without which the passenger and goods traffic cannot be carried on, but those which are reasonably neces sary for passenger and goods traffic as carried on on a railway of the kind of the grantee, and as from time to time required. Harris v. London etc. R. Co., 60 L. T., N. S. 392. rate "Necessary Expense to Command Rent."-Under a local act for the embanking and draining a district consisting of several parishes, an annual was imposed on the district, and lands occupied by the respondent were rated at a certain proportion yearly. The rate by the act was expressly made a landlord's tax, and the respondent's landlord had accordingly always paid the amount. The whole rate under the act was necessary for and was spent each year in maintaining the drainage works. Without such drainage works, the land occupied by the respondent would have been under water at certain seasons, and the annual value would have been considerably diminished. Held, that in assessing the respondent to the poor rate, a deduction was to be allowed under 6 & 7 Will. IV, ch. 96, § 1, in respect of the drainage rate, as an expense necessary to main NECESSITY.1--See also EMINENT DOMAIN, 6 Am. & Eng. Encyc. of Law 509; MARITIME LIENS, vol. 14, p. 410; MILITARY LAW, vol. 15, p. 390; PRIVATE WAYS; SUNDAY LAWS; WAYS. NEED.2-See also WANT. NE EXEAT (Writ of). I. History of the Writ, 374. II. Definition of the Modern Writ of Ne Exeat, 375. III. When Granted, 375. 2. For Alimony, 378. IV. The Application for the Writ, 379. 1. The Time at Which the Ap tain the land in a state to command the rent. Reg. v. Gainsborough Union, 7 Q. B. 64. "Necessary Implication."—"Necessary implication," in construing a will, means so strong a probability of intention that an intention contrary to that imputed cannot be supposed. Wilkinson v. Adam, 1 Ves. & B. 466. See also People v. Draper, 15 N. Y. 558; State v. Union Bank, 9 Yerg. (Tenn.) 164. 1. "In Case of Fire or Other Great Necessity."--Where a city is to be furnished with water free of charge in case of "fire or other great necessity," no charge can be made for supplying the city with water for the purposes of flushing sewers, watering the streets, and irrigating the parks, etc. Spring Valley Water Works v. San Francisco, 52 Cal. 111. Dishorning cattle is not a "necessity," So as to avail as a defence upon a charge of cruelty to animals. Ford v. Wiley, L. R., 23 Q. B. D. 210. 2. Most in Need."-A devise to the testator's brothers A and B, to dispose of the same "among our brothers and sisters and their children, as they shall judge to be most in need of the same, is not void for uncertainty. Bull v. Bull, 8 Conn. 47; s. c., 20 Am. Dec. 86. Contra, Fontaine v. Thompson, So Va. 229. Need Not. This phrase does not mean "must not;" and, therefore, though by subd. 2, § 1, M. W. P. act, 1882, a husband "need not" be joined in actions by or against his wife, yet he may be joined, especially so where the wife is a defend plication May be Made, 379. 2. How the Application Is to be Made, 379. 3. The Affidavit, 380. V. Against Whom Issued, 381. VI. Tenor of the Writ, The Bond, etc., 382. VII. How and When the Writ Is Discharged, 383. ant in an action of tort. Seroka v. Kattenburg, 17 Q. B. D. 177; 54 L. T. 649; 34 W. R. 542. See MUST. "Need and Require" in a Will.-Testator gave a fund to his executors in trust for the use and benefit of his daughter for life, the interest to be paid to her as she may "need or require." The daughter was weakminded. Held, that it is as if he had said, "as she may need or her necessities require." Corlies v. Allen, 36 N. J. Eq. 100. Need Such Aid.-A devise to trustees, in trust for such of testators' children or descendants as may need such aid, is invalid, being too remote. Kent v. Dunham, 142 Mass. 216. "Needful" in Statute.-By a Wisconsin statute the school boards are clothed with the power to make needful rules and regulations for the government of the schools, that is, "such as will best advance the pupils in their studies, tend to their education and mental improvement, and promote their interest and welfare." A rule that the pupils shall carry wood for the use of the schoolhouse, not promoting these ends, is not "needful." State v. Board of Education, 63 Wis. 237. Needlessly in statute, forbidding the needless killing or mutilating of any animal. “Needless cannot be reasonably construed as characterizing an act which might, by care, be avoided. It simply means an act done without any useful motive, in a spirit of wanton cruelty for the mere pleasure of destruction. Grise v. State, 37 Ark. 460. "Needlessly Torture or Mutilate."Trapping a trespassing and depredating I. HISTORY OF THE WRIT.-The writ of ne exeat regno was, in early times, in England, a high prerogative writ, issuing, for political purposes only, to forbid, as its name implies, the departure of a subject from the realm. The date of its introduction is very obscure.2 The common law, as evidenced by Magna Charta, allows untrammelled liberty of locomotion to the subject, permitting him to depart from the kingdom for business or for pleasure without any licence from the crown.3 Relying upon this, some writers contend that the writ was introduced between the reigns of John and Edward I. However, the opinions of Lord Coke, Fitzherbert and Justice Story, that the writ was a part of the prerogative at common law, seem to be the better. While it was undoubtedly true that every man might leave the kingdom at his pleasure without permission of the crown, the king, being entitled to his military services, might forbid his departure without infringement of this general right. The exact date at which the writ was first applied as an aid to chancery in the administration of remedial justice is also unknown; but the first application seems to have occurred in the reign of Queen Elizabeth. And in the reign of James I, this use of the writ had become so common as to be the subject of one of Lord Chancellor Bacon's ordinances.6 In several of the United States the writ has been abolished, either in direct terms or by judicial construction, being considered as contrary to the spirit of American governments.7 In the States where it is still in use it is dog is not "needlessly torturing or mutilating," within a statute against cruelty to animals. Hodge v. State, 11 Lea (Tenn.) 528; s. c., 47 Am. Rep. 307. In a Will. "As she may need" was held to be equivalent of "as she may desire" where the bequest was "the interest to be drawn and used by her as she may need." Gillen v. Kimball, 34 Ohio St. 363. 1. Jackson v. Petrie, 10 Ves. 164; Beames on Ne Exeat 1; 1 Bl. Com. 162, 319; Story Eq. Jur., § 1467; Flack v. Holm, Jacob & Walk. 403; Ex parte Brunker, 3 P. Wms. 312. 2. Story Eq. Jur., § 1465. 3. Beames on Ne Exeat 1, 3. 4. 2 Fitz. Nat. Brev. 85; Beames on Ne Exeat 85; Co. Ins. 54; Com. Dig. Chan. 4 b; Story Eq. Jur., § 1466. 5. Beames on Ne Exeat 16; Story Eq. Jur., § 1467. 6. Writs of ne exeat regno are properly to be granted according to the suggestion of the writ, in respect of attempts prejudicial to the King and State, in which case the Lord Chancellor will grant them, upon prayer of any of the principal secretaries, without cause showing, or upon such information as his lordship shall think of weight; but, otherwise also, there may be according to the practice of long time used, in case of interlopers in trade, great bankrupts in whose estates many subjects are interested, or other cases that concern multitudes of the king's subjects; also in case of duels and divers others. Beames Ord. in Chan., p. 39, ord. 40, 89; Beames on Ne Exeat 16, 17. 7. In Vermont, Pennsylvania, Mississippi, Kentucky and Louisiana, any restraint on emigration is forbidden by the constitution. In Arkansas the writ is abolished. In Cable v. Alvord, 27 Ohio St. 654, the court concludes that the writ is abolished in all civil actions. In Ex parte Harker, 49 Cal. 465, the court declares that the writ is not included among the proceedings by which a person can be arrested in a civil action. While in New York the act to abolish imprisonment for debt was held not to have deprived the court of chancery of the power to issue a writ of ne exeat in cases of equitable cognizance where such writ would have been allowed previous treated as a writ of right, and is governed by the same principles in general that apply to the writ as used in England.2 й. DEFINITION OF THE MODERN WRIT OF NE EXEAT.-Ne exeat, as now understood, is a writ issuing out of a court of equity, on the petition of a complainant having a clear equitable demand, to prevent the departure of a defendant who has sequestered his property and is about to leave the country.3 It is a writ to obtain equitable bail. It may be questioned whether its functions may not have become practically obsolete in view of the general abolition of imprisonment for debt and the growth of the writ of attachment as allowed under the codes, wherein legal and equitable remedies and procedure are assimilated, and under the enlarged procedure of courts of equity in those jurisdictions where the functions of courts of law and of equity are still distinct. III. WHEN GRANTED. The writ being governed altogether by custom it is almost impossible to lay down fixed principles by which it is governed. This much, however, may be said : 1. Generally. The writ has been granted only in cases of equi table demands,5 to the passage of that act. Brown v. Haff, 5 Paige (N. Y.) 235; s. c., 28 Am. Dec. 425; Ashworth v. Wrigley, 1 Paige (N. Y.) 301. The code of Civil Proc., § 548, abolished the writ and stated that no arrests should be made in civil actions or special proceedings except as prescribed by statute. Boucicault v. Boucicault, 59 How. Pr. (N. Y.) 134; Collins v. Collins, 80 N. Y. 24. Whether the writ was abolished by the old code -quære. Collins v. Collins, So N. Y. 24. 1. Sherman v. Sherman, 3 Bro. (C. C.) 370; Gleason v. Bisby, 1 Clarke (N. Y.) 551; Gilbert v. Colt, 1 Hopk. (N. Y.) 499; Mitchell v. Bunch, 2 Paige (N. Y.) 606; s. c., 22 Am. Dec. 669; Porter v. Spencer, 2 Johns. Ch. (N. Y.) 169; Rice v. Hale, 5 Cush. (Mass.) 242. Though originally a prerogative writ, it is now resorted to merely for the purpose of obtaining equitable bail. Cable v. Alvord, 27 Ohio St. 666; Cox v. Scott, 5 Har. & J. (Md.) 384; 2 Story Eq., § 1469. 2. Rice v. Hale, 5 Cush. (Mass.) 238; Brown v. Haff, 5 Paige (N. Y.) 235; s. c., 28 Am. Dec. 425; Denton v. Denton, 1 Johns. Ch. (N. Y.) 441. 3. Dick v. Swinton, 1 Ves. V. 372; Stewart v. Graham, 19 Ves. V. 312; Grant v. Grant, 3 Russell Ch. 598; Cox v. Scott, 5 Har. & J. (Md.) 384; Mitchell v. Bunch, 2 Paige (N. Y.) 606; s. c., 22 Am. Dec. 669; Smedberg v. Mark, 6 Johns. Ch. (N. Y.) 138; Cable v. Al vord, 27 Ohio St. 666; Adams v. Whitcomb. 46 Vt. 708; Johnson v. Clendenin, 5 Gill & J. (Md.) 463. Ne exeat is a process to hold the custody of the defendant's body until he shall give bail to abide the decree of the court. Cable v. Alvord, 27 Ohio St. 666; Gresham v. Peterson, 25 Ark. 377. A person cannot be prevented from going beyond the State limits by an injunction, but only by a writ of ne exeat. Bleyer v. Blum, 70 Ga. 558. Not Imprisonment for Debt.- Arrest and restraint of liberty upon a writ of ne exeat, held not "imprisonment for debt," within the meaning of a constitutional prohibition on the subject. 1868, Dean v. Smith, 23 Wis. 483; s. c., 99 Am. Dec. 198. 4. Mitchell v. Bunch, 2 Paige (N. Y.) 606; s. c., 22 Am. Dec. 669; Story Eq. Jur., § 1470. The practice of a court of equity, whereby a justice thereof, independent of any statutory authority, may in vacation by a capias arrest a person intending to leave the State in order to evade a decree, or attach his property to secure an enforcement of an anticipated final decree, is analogous in principle and application to that under the writ ne exeat regno, as recognized and administered by the English law. 1870, Samuel v. Wiley. 50 Ñ. H. 353. 5. Cox v. Raber, 6 Ves. Jr. 783; Crosby v. Marriott, 2 Dock. 609; Hannahan v. Nicholis, 17 Ga. 77; 2 Story Generally. where the equity was clear, the demands certain and not contingent, actually payable and not future,3 of a pecuniary nature and not in the form of unliquidated damages, and the party was about to leave the country to avoid payment.5 The Eq. Jur., 1470; Smedberg v. Mark, 6 Johns. Ch. (N. Y.) 138; Porter v. Spencer, 2 Johns. Ch. (N. Y.) 169; Brown v. Haff, 5 Paige (N. Y.) 235; s. c., 28 Am. Dec. 425; Cox v. Scott, 5 Har. & J. (Md.) 384; Palmer v. Van Doren, 2 Edw. Ch. (N. Y.) 425; Rhodes v. Cousins, 6 Rand. (Va.) 188; s. c., 18 Am. Dec. 715; Lucas v. Hickman, 2 Stew. (Ala.) 11; s. c., 19 Am. Dec. 44; Rice v. Hale, 5 Cush. (Mass.) 241; Graham Stucken, 4 Blatchf. (U. S.) 50. v. As in case of a capias ad respondendum, a ne exeat should not issue unless the petition sets forth facts raising a strong presumption of fraud. Malcolm v. Andrews, 68 Ill. 101. 1. Woodward v. Schatzell, 3 Johns. Ch. (N. Y.) 412; 1 N. Y. Ch. L. To sustain the writ sufficient equity must appear on the face of the bill; mere apprehension that the defendant will misapply funds in his hands or abuse his trust is not sufficient. 2. Sherman v. Sherman, 3 Bro. (C. C.) 370; Turn. & Russ. 322; Rico v. Guatree, 3 Atk. 500; Whitehouse v. Partrage, 3 Swanst. 377, 378; Morris v. McNeal, 2 Russ. 604; Porter v. Spencer, 2 Johns. Ch. (N. Y.) 169; Graham v. Stucken, 4 Blatchf. (U. S.) 50; Mattocks v. Tremaine, 3 Johns. Ch. (N. Y.) 75; MacDonough v. Gaynor, 18 N. J. Eq. 249. The court will not grant a ne exeat in behalf of a surety, to enable him to hold his principal to bail, in order to compel payment of a forfeiture or penalty under the law of a foreign state, before it is legally ascertained that either principal or surety will be compelled to pay such penalty. Gibbs v. Mennard, 6 Paige (N. Y.) 258; Gibbs v. Mermaud, 2 Edw. Ch. (N. Y.) 482. 3. Seymour v. Hazard, 1 Johns. Ch. (N. Y.) 1. The debt for which this writ will issue must be certain in its nature, and actually payable and not contingent. 2 Story Eq. Jur., § 1474; Whitehouse v. Partridge, 3 Swanst. 365-377; Sherman v. Sherman, 3 Bro. (C. C.) 370; Gibbs v. Mermaud, 2 Edw. Ch. (N. Y.) 482. There must be a debt existing at the time and so far mature that present payment or performance can rightfully be demanded. Gleason v. Bisby, I Clarke (N. Y.) 551; Rhodes v. Cousins, 6 Rand. (Va.) 188; s. c., 18 Am. Dec. 715; Cox v. Scott, 5 Har. & J. (Md.) 384; De Rivafinoli v. Corsetti, 4 Paige (N. Y.) 264; s. c., 25 Am. Dec. 532; Cable v. Alvord, 27 Ohio St. 666; Rico v. Guatree, 3 Atk. 500; WhiteMorris v. McNeil, 2 Russ. 604; Porter house v. Partridge, 3 Swanst. 377, 378; v. Spencer, 2 Johns. Ch. (N. Y.) 169; Malcolm v. Andrews, 68 Ill. 101; Forc., 5 How. Pr. (N. Y.) 125; Hunter v. rest v. Forrest, 10 Barb. (N. Y.) 46; s. Nelson, 5 Blackf. (Ind.) 263; Mac Donough v. Gaynor, 18 N. J. Eq. 249; Palner v. Van Doren, 2 Edw. Ch. (N. Y.) (N. Car.) 359; Samuel v. Wiley, 50 N. 425; Edwards v. Massey, I Hawks H. 353 211; Gibbs v. Mermaud, 2 Edw. Ch. 4. Blaydes v. Calvert, 2 Jac. & Walk. (N. Y.) 482; Cowdin_v. Cram, 3 Edw. Ch. (N. Y.) 231; De Rivafinoli v. CorDec. 532; Etches v. Lance, 7 Bes. 417; setti, 4 Paige (N. Y.) 264; s. c., 25 Am. Cox v. Ravie, 6 Ves. 283; Graham v. Stucken, Blatchf. (U. S.) 50; Beames Mark, 6 Johns. Ch. (N. Y.) 138; Story on Ne Exeat, 36-57, 53-55; Smedberg v. Eq. Jur., § 1475. (U. S.) 50; Mattocks v. Tremaine, 3 5. Graham v. Stucken, 4 Blatchf. Johns. Ch. (N. Y.) 75; Mitchell v. Bunch, 2 Paige (N. Y.) 606; s. c., 22 Am. Dec. 669. Proof that the maker of a note is about to leave the State and take away although the surety is solvent and achis property is ground for a ne exeat, cessible. Under 2 Ind. Rev. Stat., p. exeat a party must show that the de- A ne exeat was held properly issued |