notice

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

Information, whether actual or presumptive, and whether direct or indirect, respecting a matter of fact. Notice is either (1) actual, consisting of information actually received, or (2) constructive, consisting of facts which, by implication of law, constitute notice without regard to whether they actually impart information. Actual notice is either (a) express, consisting of direct positive knowledge of the fact in question, or (b) implied, consisting of information sufficient to put one on inquiry as to the fact in question. "Notice" is a broader term than "knowledge," which includes only express actual notice. 81 Ala. 140; 79 Me. 195.

The information given of some act done, or the interpellation by which some act is required to be done. Knowledge. A statutory notice is not binding unless given as the law directs or allows; Allen v. Strickland, 100 N. C. 225, 6 S. E. 780; O’Fallon v. It. Co., 45 111. App. 572. Act ml notice exists when knowledge Is actually brought home to the party to be affected by it. This statement is criticised, as being too narrow, in Wade, Notice 4. This writer divides actual knowledge into two classes, express and implied; the former includes all knowledge of a degree above that which depends upon collateral inference, or which imposes upon the party the further duty of inquiry; the latter imputes knowledge to the party because he is shown to be conscious of having the means of knowledge, though he docs not use them, choosing to remain ignorant of the fact, or is grossly negligent in not following up the inquiry which the known facts suggest; Wade, Notice 5. In Appeal of Craft, 42 Conn. 146, there is a division into “particular or explicit*’ and “general or implied” notice. Information which a prudent man believes to be true, and which if followed by inquiry must lead to knowledge, is equivalent to knowledge; Tucker v. Constable, 16 Or. 407, 19 Pac. 13. Where the direct issue of fraud is involved, knowledge may be imputed to one wilfully closing his eyes to information within his reach; Wecker v. Enameling Co., 204 U. S. 176, 27 Sup. Ct 184, 51 L. Ed. 430, 9 Ann. Cas. 757. Notice of any fact which is sufficient to put a purchaser of land on inquiry, is adequate notice; Rorer Iron Co. v. Trout, 83 Ya. 397, 2 S. H. 713, 5 Am. St. Rep. 285; and of everything to which such inquiry may lead; Shauer v. Alterton, 151 U. S. 607, 14 Sup. Ct. 442, 38 L. Ed. 286. Constructive notice exists when the party, by any circumstance whatever, is put upon inquiry (which is the same as implied notice, supra), or when certain acts have been done which the party interested is presumed to have knowledge of on grounds of 397, 17 Am. Dec. 431; Scott v. Gallagher, 14 S. & R. (Pa.) 333, 16 Am. Dec. 508. The recording a deed; Wise v. Wimer, 23 Mo. 237; Magoffin v. Mandaville, 28 Miss. 354; 4 Kent 182, n.; an advertisement in a newspaper, when authorized by statute as a part of the process, public acts of government, and lis pendens (but see Lis Pendens), constitute constructive notice. Judge Story defines the term as “knowledge” imputed by the court on presumption, too strong to be rebutted, that the information must have been communicated; Story, Eq. Jur. § 399. “Constructive notice is a legal inference of notice, of so high a nature, as to be conclusive, unless disproved, and is in most cases insusceptible of explanation or rebuttal by evidence that the purchaser had no actual notice, and believed the vendor’s title to be good 2 Lead. Cas. Eq. 77. Constructive notice is sometimes called notice in law; Sterry v. Arden, 1 Johns. Ch. (N. Y.) 261. Proof of notoriety of the fact in the neighborhood of the party to be affected is competent to prove notice; Wright v. Stewart, 130 Fed., 905. To establish notice by telephone, the party relying upon such notice has the burden of proving the identity of the person receiving the communication and that it reached the party sought to be charged; Second Pool Coal Co. v. Coal Co., 188 Fed. 892, 110 C. C. A. 52G. Proof that an envelope was mailed and received is not conclusive evidence that the notice was enclosed, and if its receipt is denied, it is for the jury; Empire State Surety Co. v. Lumber Co., 200 Fed. 224, 118 C. C. A. 410. The constructive notice given by the record of a deed is sometimes called record notice. Where an instrument affecting the title to real estate is properly recorded, the record thereof is notice to subsequent purchasers, etc., from the same grantor; Wade, Notice, 2d ed. § 97; Vaughan v. Greer, 38 Tex. 530; Mayo v. Cartwright, 30 Ark. 407; Randolph v..K. Co., 28 N. J. Eq. 49. The possession of land is notice to all the world of the possessor’s rights thereunder; Li pj) v. Land Syndicate, 24 Neb. 692, 40 N. W. 129; Buck v. Holt, 74 la. 294, 37 N. W. 377; Brooke v. Bordner, 125 Pa. 470, 17 Atl. 467; Daniel v. Hester, 29 S. C. 147, 7 S, E. 65; Simmons Creek Coal Co. v. Doran, 142 U. S. 417, 12 Sup. Ct. 239, 35 L. Ed. 1063. Notice to an agent in the same transaction is, in general, notice to the principal; Farmers & C. Bk. v. Payne, 25 Conn. 444, 68 Am. Dec. 362; Pritchett v. Sessions, 10 Rich (S. C.) 293; Baker v. Bliss, 39 N. Y. 70; Armstrong v. Abbott, 11 Colo. 223, 17 Pac. 517. A principal imposing confidence in an agent, and therefore neglecting some source of knowledge which he might have sought, is not chargeable with what he might suspicion; Kilbourn v. Sunderland, 130 U. S. 505, 9 Sup. Ct. 594, 32 L. Ed. 1005. Notice to the trustees is notice to the beneficiaries in a deed of trust; Peters v. Bain, 133 U. S. 670, 10 Sup. Ct. 354, 33 L. Ed. 696; Cruralish v. R. Co., 32 W. Va. 244, 9 S. E. 180. A principal is not bound by his agent’s knowledge where it is not the duty of the agent to communicate it; Hummel v. Bank, 75 Ta. 689, 37 N. W. 954. Notice to an agent.must be on the very business on hand; Alger v. Keith, 105 Fed. 105, 44 C. C. A. 371. So of knowledge incidentally acquired by a corporate officer when not acting in his official capacity; Caffee v. Berkley, 141 la. 344, 118 N. W. 267. If the agent is acting adversely to the principal his knowledge is not imputed to the principal; Central C. & C. Co. v. Good & Co., 120 Fed. 793, 57 C. C. A. 1G1; Gunster v. Power Co., 181 Pa. 327, 37 Atl. 550, 59 Am. St. Rep. 650. Where it is in the private interest of the officer of a bank to conceal knowledge from his bank, the law does not, by a fiction, charge the bank with such knowledge; American N. Bk. v. Miller, 229 U. S. 517, 33 Sup. Ct. 883, 57 L. Ed. 1310. Notice to the president and some directors of a corporation is sufficient to bind it; Paul S. S. Co. v. Paul, 129 Fed. 757; but where the president, acting in his private capacity, acquires knowledge of a particular fact, it does not affect the corporation in a later transaction unless he participated therein; Smith v. Carmack (Tenn.) 64 S. W. 372; Teagarden v. Lumber Co., 105 Tex. 61(5, 154 S. W. 973. Notice to one who acts as local representative, advisor, secretary and treasurer, is notice to his association; Dennis v. Loan Ass’n, 136 Fed. 539, 69 C. C. A. 315; but where one is secretary of two companies, it must be shown that when notice was given to him, it was his duty to communicate it to the proper company, even though he was acting at the time for the other company; [1902] 1 Ch. 507. The giving notice in certain cases is in the nature of a condition precedent to the right to call on the other party for the performance of his engagement, whether his contract were express or implied. Thus, in the familiar instance of bills of exchange and promissory notes, the implied contract of an indorser is that he will pay the bill or note, provided it be not paid, on presentment at maturity, by the acceptor or maker (being the party primarily liable), and provided that he (the Indorser) has due notice of the dishonor, and without which he is discharged from all liability: consequently, it is essential for the holder to be prepared to prove affirmatively that such notice was given, or some facts dispensing with such notice; 1 Chitty, Pr. 496; 1 Pars. Notes & B. Whenever the defendant’s liability to perform an act depends on another occurrence which is best known to the plaintiff, and of which the defendant is not legally bound to take notice, the plaintiff must prove that due nolice was in fact given. So, in cases of insurances on ships, a notice of abandonment is frequently necessary to enable the assured plaintiff to proceed as for a total loss v hen something remains to be saved, in relation to which, upon notice, the insurers might themselves take their own measures. Notice may be written or oral, in many cases, at the option of the party required to give it; but written notice is generally preferable, both as avoiding doubt and ambiguity in its terms, and as admitting more easy and exact proof of delivery; 2 Dan. Neg. Inst. 972. Immediate notice of a fire means reasonable notice; Solomon v. Ins. Co., 100 N. Y. 595, 55 N. E. 279, 40 L. R. A. 682, 73 Am. St. Rep. 707. Acknowledging service of notice does not preclude showing it was too late; Shenrouse v. Morgan, 111 Ga. 858, 36 S. E. 927. Personal service does not include sendee at the last known residence; Dalton v. It. Co., 113 Mo. App. 71, 87 8. W. 010. See Knowledge; Record.

Knowledge; information; the result of observation, whether by the senses or the mind; knowledge of the existence of a fact or state of affairs; the means of knowledge. Used in this sense in such phrases as "A. had notice of the conversion," "a purchaser without notice of fraud," etc. Notice is either
(1) statutory, i. e., made so by legislative enactment;
(2) actual, which brings the knowledge of a fact directly home to the party; or
(3) constructive or implied, which is no more than evidence of facts which raise such a strong presumption of notice that equity will not allow the presumption to be rebutted. Constructive notice may be subdivided into: (a) Where there exists acinal notice of matter, to whffch equity has added constructive notice of facts, which an inquiry after such matter would have elicited ; and (b) where there has been a designed abstinence from inquiry for the very purpose of escaping notice. Wharton.

In another sense, "nofice" means ihfor-mation of an act to be done or required to be done; as of a motion to be made, a trial to be had, a plea or answer to be put in, costs to be taxed, etc.

In this sense, "notice" means an advice, or written warning, in more or less formal shape, intended to apprise a person of some proceeding in which his interests are involved, or informing him of seme fact which it is his right to know and the duty of the notifying party to communicate. Classification. Notice is actual or constructive. Actual notice is notice expressly and actually given, and brought home to the party directly, in distinction from notice inferred or imputed by the law on acount of the existence of means of knowledge. Jordan v. Pollock, 14 Ga. 145; Johnson v. Dooly, 72 Ga. 297; Morey v. Milliken, 86 Me. 464, 30 Atl. 102; McCray v. Clar, 82 Pa. 457; Briokman v. Jones, 44 Wis. 498; White v. Fisher, 77 Ind. 65, 40 Am. Rep. 287; Clark v. Lambert, 55 W. Va. 512, 47 S. E. 312. Constructive notice is information or knowledge of a fact imputed by law to a person, (although he may not actually have it,) because he could have discovered the fact by proper diligence, and his situation was such as to cast upon him the duty of inquiring into it. Baltimore v. Whittington, 78 Md. 231, 27 Atl. 984; Wells v. Sheerer, 78 Ala. 142; Jordan v. Pollock, 14 Ga. 145; Jackson v. Waldstein (Tex. Civ. App.) 27 S. W. 26; Acer v. Westcott, 46 N. Y. 384, 7 Am. Rep. 355. Further as to the distinction between actual and constructive notice, see Baltimore v. Whittington, 78 Md. 23l, 27 Ali. 984; Thomas v. Flint, 123 Mich. 10, 81 N. W. 936, 47 L. R. A. 499; Vaughn v. Tracy, 22 Mo. 420. Notice is also further classified as empress or implied. Express notice embraces not only knowledge, but alao that which is communicated by direct information, either written or oral, from those who are cognizant of the fact communicated. Baltimore v. Whittington, 78 Md. 231, 27 Atl. 984. Implied notice is one of the varieties of actual notice (not constructive) and is distinguished from "express" actual notice. It is notice inferred or imputed to a party by reason of his knowledge of facts or circumstances collateral to the main fact, of such a character as to put him upon inquiry, and which, if the inquiry were followed up with due diligence, would lead him definitely to the knowledge of the main fact Rhodes v. Outcalt, 48 Mo. 370; Baltimore v. Whittington, 78 Md. 231, 27 Atl. 984; Wells v. Sheerer, 78 Ala. 147. Or as otherwise defined, implied nolice may be said to exist where the fact in question lies open to the knowledge of the party, so that the exercise of reasonable observation and watcbfulnss would not fail to apprise him of it, although no one has told him of it in so many words. See Philadelphia v. Smith (Pa.) 16 Atl. 493. Other compound and descriptive terms.

— Judicial notice. The act by which a court, in conducting a trial, or framing its decision, will, of its own motion, and without the production of evidence, recognize the existence and truth of certain facts, having a bearing on the controversy at bsr, and which, from their nature, are not properly the subject of testimony, or which are universally regarded as established by common notoriety, e. g., the laws of the state, international law, historical evenis, the constitution and course of nature, main geographical features, etc. North Hempstead v. Gregory, 53 App. Div. 350, 65 N. Y. Supp. 867; State v. Main, 69 Conn. 123, 37 Atl. 80, 36 L. R. A. 623, 61 Am. St Rep. 30.

— Legal notice. Such notice as la adequate in point of law; such notice &b the law requires to be given for the specific purpose or in the particular case. See Sanborn v. Piper, 64 N. H. 335, 10 Atl. 680; People's Bank v. Etting, 17 Phila. (Pa.) 235.

— Notice, averment of. In pleading. The allegation in a pleading that notice has been given.

— Notice in lieu of service. In lieu of personally serving a writ of summons (or other legal process,) in English practice, the court occasionally allows the plaintiff (or other party) to give notice in lieu of service, such notice being such as will in nil probability reach the party. This notice is peculiarly appropriate In the case of a foreigner out of the jurisdiction, whom it is desired to serve with a writ of summons. Sweet.

— Notice of action. When it is intended to sue certnin particular individuals, as in the case of actions against justices of the peace, it is necessaiy in some jurisdictions to give them notice of the action some time before.

— Notice of appearance. See Appearance.

— Notice of dishonor. See Dishonor.

— Notice of lis pendens. See Lis Pendens.

— Notice of protest. See Protest.

— Notice of judgment. It is required by statute in several of the slates that the party for whom the verdict in an action has been given shall serve upon the other party or his attorney a written notice of the time when judgment is entered. The time allowed for taking an appeal runs from such notice.

— Notice of motion. A notice in writing, entitled in a cause; stating that, on a certain day designated, a motion will be made to the court for the purpose or object stated. Field V. Park, 20 Johns. (N. Y.) 140.

— Notice of trial. A notice given by one of the parties in an action to the other, after an issue has been reached, that he intends to bring the cause forward for trial at the next term of the court.

— Notice to admit. In the practice of the English high court, either party to an action may call on the other party by notice to admit the existence and execution of any document, in order to save the expense of proving it at the trial; and the party refusing to admit must bear the costs cf proving it unless the judge certifies that the refusal to admit was reasonable. No costs of proving a document will in general be allowed, unless such a notice la given. Rules of Court, xxxii. 2 ; Sweet.

— Notice to plead. This is a notice which, in the practice of some states, is prerequisite to the taking judgment by default. It proceeds from the plaintiff, and warns the defendant that he must plead to the declaration or complaint within a prescribed time.
—-Notice to produce. In practice. A notice in writing, given in an action at law, requiring the opposite party to produce a certain described paper or document at the trial. Chit. Archb. Pr. 230 ; 3 Chit. Gen. Pr. 834.

— Notice to quit. A written notice given by a landlord to his tenant, stating that the former desires to repossess himself of the demised premises, and that the latter is required to quit and remove from the same at a time designated, either at the expiration of the term, if the tenant is in under a lease, or immediately, if the tenancy is at will or by sufferance. The term is also sometimes applied to a written notice given by the tenant to the landlord, to the effect that he intends to quit the demised premises and deliver possession of the same on a day named. Gamer v. Hannah, 6 Duer (N. Y.) 270; Oakes v. Munroe, 8 Cash. (Mass.) 287.

— Personal notice. Communication or notice orally or in writing (according to the circumstances) directly to the person affected or to be charged, as distinguished from Constructive or implied notice, and also from notice imputed to him because given to his agent or representative. See Loeb v. Huddleston, 105 Ala. 257, 16 South. 714; Pearson v. Lovejoy, 53 Barb. (N. Y.) 407.

— Presumptive notice. Implied actual notice. The difference between "presumptive" and "constructive" notice is that the former is an inference of fact which is capable of being explained or contradicted, while the latter is a conclusion of law which cannot be contradicted. Brown v. Baldwin, 121 Mo. 106, 25 S. W. 858; Drey v. Doyle, 99 Mo. 459. 12 S. W. 287; Brush v. Ware, 15 Pet 98, 10 It Ed. 672.

— Public notice. Notice given to the public generally, or to the entire community, or to all whom it may concern. See Pennsylvania Training School v. Independent Mut. F. Ins. Co., 127 Pa. 559, 18 Atl. 392.

— Reasonable notice. Snch notice or information of a fact as may fairly and properly be expected or required in the particular circumstances. Sterling Mfg. Co. v. Hough, 49 Neb. 618, 68 N. W. 1019; Mallory v. Leiby, 1 Kan. 102.

Notitia, /. Knowledge, actual, called actual notice, or implied, called implied notice, which latter arises when such an act is done, or such a state of facts exists, as would put a reasonable man upon inquiry, or where some legal form, such as recording, posting or publishing, is complied with; a written or printed notification, dated,

AVERMEMNT OF.

In pleading. The allegation ina pleading that notice has been given. WOTICHE IN LiEU OF SERVICE, In lieu of personally serving a writ of summons (cr other legal process,) in English practice, the court oceasionally allows the plaintiff (or other party) to give notice in licu of service, such notice being such as willin all probability reach the party. This notice is peculiarly appropriatein the case of a foreignar out of the jurisdiction, whom it is desired to serve with a writ of summons, Sweet.

Notitia,;. 1. Knowledge. person has actual knowledge interests. Constructive state of things exists as would quiry, or where a legalized advertisement] is complied the rights of a third party, tice wiU follow. 2. A written against a plaintiff when he cannot abandons it after issue joined and commonly voluntary, and were answering when called to hear the the demandanfs count in a real acof the freehold. between term and term. a privilege, franchise, easement, or persons mi juris and compos mencondition; the law of things, as is known by [his] its companions. be determined by the meaning of guilty: a plea of the general issue causes. Not possessed: a plea of denying that the plaintiff was possessed action brought. Not proven: a cases, having the legal effect of a verthe prisoner under suspicion. memorandum; a preliminary memoranv. Fine. A promissory note: promise, written and signed by the a certain sum of money to some bearer. He is called the payee. officer, before whom many acts are attestation of deeds or writings, the etc. Actual notice: when a third of a fact or transaction affecting his notice: when such an act is done or put a reasonable man on his inform of notice [such as record or with; in both of which cases, as to the legal consequences of actual nonotification, dated, addressed, and

1. Information; means of knowledge.. A person is said to be chargeable with notice when information of the fact is communicated to him, or when knowledge of sufficient facts is brought home to him to induce a prudent man in like circumstances to make inquiry, or when a public record exists which the person ought, in law, to consult. In this sense of the word, notice is either actual or constructive. It is termed actual when the person to be affected received knowledge; when his mind was cognizant of the fact. It is called constructive, in various cases where the law treats a party as if he had received knowledge of the fact, upon grounds of public policy and general convenience in business, or because of his neglect of some duty of inquiry, or disregard of intimations which, if properly followed, would have procured for him the information. Thus, a principal or an officer is said to have constructive notice of facts made known to his agent or deputy; a purchaser of land has constnictive notice of a prior deed of the land by his grantee, which has been duly acknowledged and recorded. Hence "notice ' does no: of necessity implj actual knowledge; for whatever is sufficient to put a man of ordinary pritdence on an inquiry is constructive notice of every thing to which that inquiry would have led. Notice, in its full legal sense, embraces a knowledge of circumstances that ought to induce suspicion or belief, as well as direct information. Pringle v. Phil Ups, 6 Sandf, 157, 165. strued by its circumstances. Lawrence v. Bowman, 1 Mc All. 419. Notice is actual when it is directly and personally given to the party to be notified; and constructive, when the party, by circumstances, is put upon inquiry, and must be presumed to have had notice, or, by judgment of law, is held to have had notice. Jordan v. Pollock, 14 Ga. 146. Notice, in an act requiring that corporations should have same notice as natural persons of proceedings to sell an equity of redemption, was held not to apply to service of process. Vicksburg, &c. R. R. Co. V. Mc Cutchen, 52 Miss. 645. 2. A notice is a letter or memorandum containing information, apprising a person of a proceeding in which he has an interest, or otherwise giving knowledge of matters of fact, communicated in some pi-oper way, by advertisement, posting, personal service, &c. Notice, in a statute requiring notice to be given, means notice in writing. Pearson v. Lovejoy, 53 Barb. 407. The word imports something written, and given to the party for the purpose of apprising him. Fry v. Bennett, 7 Abb. Pr. 352, 355. Where a statute requires service of a notice upon an individual, personal service is meant, unless some other mode is specified. Ruthbun v. Acker, 18 Barb. 393. Notice, in a penal statute, was construed to mean personal notice, in St. Louis v, Goebel, 32 Mo. 295. Notices known by various names, in great number and variety, are known in legal proceedings. We mention some of the more common ones: Notice of action. When it is intended to sue certain particular individuals, as in the case of actions against justices of the peace, it is necessary in some juiisdictions to give them notice of the action some time before. Notice to admit. This is a notice given by either party to a writ, calling on the other to give an admission of the genuineness of a document; and if the party notified refuses, and the document is proved, he is liable to be charged •with any special expenses of making the proof, irrespective of the result upon the whole issue. Notice of appearance. A notice given by defendant to a plaintiff that he will come forward and defend the suit. See Appearance. Notice of dishonor, or protest. A setting forth that the person primarily liable has failed to make payment, and that the holder looks to the person notified. Strictly, protest is necessary only as to foreign bills of exchange; and the expression notice of protest is therefore scarcely applicable to checks, promissory notes, and inland bills; but it is often used as applicable to either. Notice of lis pendens. A notice that a suit is pending, allowed to be filed as matter of public record, to the end that no person shall deal with defendant, in respect to the subjectmatter of the suit, without opportunity to learn the plaintiff's claim. See Lis Pendens. Notice of motion. A notice given by either party in a suit, to the other, stating that, on a certain day designated, an application will be made to the court for the order or relief designated. Notice to plead. A notice which plaintiff, under some systems of practice, must give to a defendant that the latter is required to plead to the declaration or biU; and until this notice has been served, and has expired, no proceeding in the nature of default can take place. Notice to produce papers. A notice by one party in an action to the other to produce, at the trial, certain documents in his possession. With exceptions as to documents on which the action is founded, counterparts of originals, notices, &c., the general rule is that this notice to produce must have been given a reasonable time before the trial, or the party cannot introduce secondary evidence of the contents of the paper. Notice to quit A notice often required to be given by landlord to tenant, or by tenant to landlord, before the tenancy can be terminated.. Notice of trial. A notice given by plaintiff, or by defendant where he is allowed to be actor, apprising the other party that he intends to bring the cause to trial at the next term of the court.