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Information; knowledge of certain facts or of a particular state of affairs. The formal receipt of papers that provide specific information.
There are various types of notice, each of which has different results. In general, notice deals with information that a party knows or should have known. In this context notice is an essential element of due process. Notice can also refer to commonly known facts that a court or Administrative Agency may take into evidence.
Actual notice is information given to the party directly. The two kinds of actual notice are express notice and implied notice. An individual is deemed to have been given express notice when he or she actually hears it or reads it. Implied notice is deduced or inferred from the circumstances rather than from direct or explicit words. Courts will treat such information as though actual notice had been given.
Constructive notice is information that a court deems that an individual should have known. According to a Rule of Law that applies in such cases, the court will presume that a person knows the information because she could have been informed if proper diligence had been exercised. Constructive notice can be based on a legal relationship as well. For example, in the law governing partnerships, each partner is deemed to have knowledge of all the partnership business. If one partner engages in dishonest transactions, the other partners are presumed to know, regardless of whether they had actual knowledge of the transaction. The term legal notice is sometimes used interchangeably with constructive notice.
In certain cases involving the purchase of real property, an individual is charged with inquiry notice. When an individual wishes to purchase land, he ordinarily has the duty under the recording acts to check the title to the property to determine that the land is not subject to any encumbrances, which are claims, liens, mortgages, leases, easements or right of ways, or unpaid taxes that have been lodged against the real property. In some situations, however, the individual must make a reasonable investigation outside of the records, such as in cases involving recorded but defective documents. This type of notice is known as inquiry notice.
Some states have notice recording statutes that govern the Recording of Land Titles. Whereas inquiry notice deals with looking closely at documents that have been recorded, notice recording statutes state that an unrecorded conveyance of property is invalid against the title bought by a subsequent bona fide purchaser for value and without notice. This means that if John purchases a piece of land on a contract for deed from Tom and does not record the contract for deed, and if Tom resells the land to Jill, who has no notice of the prior sale, then Jill as a bona fide purchaser will prevail, and John's conveyance will be invalid.
The concept of notice is critical to the integrity of legal proceedings. Due process requires that legal action cannot be taken against anyone unless the requirements of notice and an opportunity to be heard are observed.
Legal proceedings are initiated by providing notice to the individual affected. If an individual is accused of a crime, he has a right to be notified of the charges. In addition, formal papers must be prepared to give the accused notice of the charges. An individual who is being sued in a civil action must be provided with notice of the nature of the suit. State statutes prescribe the method of providing this type of notice. Courts are usually strict in requiring compliance with these laws, and ordinarily a plaintiff must put this information into a complaint that must be served upon the defendant in some legally adequate manner. The plaintiff may personally serve the complaint to the defendant. When that is not practical, the papers may be served through the mail. In some cases a court may allow, or require, service by posting or attaching the papers to the defendant's last known address or to a public place where the defendant is likely to see them. Typically, however, notice is given by publication of the papers in a local newspaper. When the defendant is not personally served, or is formally served in another state, the method of service is called substituted service.
Notice is also critical when suing a state or local government. Many states and municipalities have notice of claim provisions in their statutes and ordinances that state that, before a lawsuit is started, a notice of claim must be filed within a reasonable time, usually three to six months after the injury occurs. The notice must contain the date of injury, how it occurred, and other facts that establish that the prospective plaintiff has a viable Cause of Action against the government. Failure to file a notice of claim within the prescribed time period prevents a plaintiff from filing a lawsuit unless exceptions to this requirement are provided by statute or ordinance.
Notice is also an important requirement in ending legal relationships. For example, a notice to quit is a written notification given either by the tenant to the landlord, or vice versa, indicating that either the tenant intends to surrender possession of the premises on a certain day or that the landlord intends to regain possession of the premises on a certain day. Many kinds of contracts require that similar notice be given to either renew or end the contractual relationship.
Notice may also refer to commonly known facts that a court or administrative agency may take into evidence during a trial or hearing. Judicial Notice is a doctrine of evidence that allows a court to recognize and accept the existence of a commonly known fact without the need to establish its existence by the admission of evidence. Courts take judicial notice of historical events, federal, state, and international laws, business customs, and other facts that are not subject to reasonable dispute.
Administrative proceedings use the term official notice to describe a doctrine similar to judicial notice. A presiding administrative officer recognizes as evidence, without proof, certain kinds of facts that are not subject to reasonable dispute. Administrative agencies, unlike courts, have an explicit legislative function as well as an adjudicative function: they make rules. In rule making, agencies have wider discretion in taking official notice of law and policy, labeled legislative facts.
n. 1) information, usually in writing in all legal proceedings, of all documents filed, decisions, requests, motions, petitions, and up-coming dates. Notice is a vital principle of fairness and due process in legal procedure, and must be given to both parties, to all those affected by a lawsuit or legal proceeding, to the opposing attorney, and to the court. In short, neither a party nor the court can operate in secret, make private overtures or conceal actions. Notice of a lawsuit or petition for a court order begins with personal service on the defendants (delivery of notice to the person) of the complaint or petition, together with a summons or order to appear (or file an answer) in court. Thereafter, if a party is represented by an attorney, notice can usually be given to the attorney by mail. If there is a so-called ex parte hearing (an emergency session with a judge with only the requesting party or his/her attorney present) the party wanting the hearing must make a diligent attempt to give notice to the other party. A court may allow "constructive" notice by publication in an approved legal newspaper of a summons in a lawsuit. Examples: in a divorce action, publication gives constructive notice to a spouse known to have left the state or hiding to avoid service; in a quiet title action, notice by publication is given to alert unknown descendants of a dead person who may have had an interest in the real property which is the subject of a lawsuit. Recordation of deeds, mortgages, deeds of trust, easements, leases and other documents affecting real property title give constructive notice to the general public, and thus "constructive" notice to anyone interested in the property, without delivering notice to individuals. 2) a writing informing a party to a contract, promissory note, lease, rental agreement or other legal relationship of a delinquency in payment, default, intent to foreclose, notice to pay rent or quit (leave), or other notice required by the agreement, mortgage, deed of trust or statute. 3) information. 4) being informed of a fact, or should have known based on the circumstances, as "he had notice that the roof was not water-tight." (See: constructive notice, notice to quit, three-day notice)
NOTICE. The information given of some act done, or the interpellation by
which some act is required to be done. It also signifies, simply, knowledge;
as A had notice that B was a slave. 5 How. S. C. Rep. 216; 7 Penn. Law
2. Notices should always be in writing; they should state, in precise terms, their object, and be signed by the proper person, or his authorized agent, be dated, and addressed to the person to be affected by them.
3. Notices are actual, as when they are directly given to the party to be affected by them; or constructive, as when the party by any circumstance whatever, is put upon inquiry, which amounts in judgment of law to notice, provided the, inquiry becomes a duty. Vide 2 Pow. Mortg. 561 to 662; 2 Stark. Ev. 987; 1 Phil. Ev. Index, b. t.; 1 Vern. 364, n.; 4 Kent, Com. 172; 16 Vin. Ab. 2; 2 Supp. to Ves. jr. 250; Grah. Pr. Index, h.t.; Chit. PI. Index, h.t.; 2 Mason, 531; 14 Pick. 224; 4 N. H. ]Rep. 397; 14 S. & R. 333; Bouv. Inst. Index, h.t.
4. With respect to the necessity for giving notice, says Mr. Chitty, 1 Pr. 496, the rules of law are most evidently founded on good sense and so as to accord with the intention of the parties. The giving notice in certain cases obviously 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 be 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 be 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.
5. 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 notice, 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 lose when something remains to be saved, in relation to which, upon notice, the insurers might themselves take their own measures.
6. To avoid doubt or ambiguity in the terms of the notice, it may be advisable to give it in writing, and to preserve evidence of its delivery, as in the case of notices of the dishonor of a bill.
7. The form of the notice may be as subscribed, but it must necessarily vary in its terms according to the circumstances of each case. So, in order to entitle a party to insist upon a strict and exact performance of a contract on the fixed day for completing it, and a fortiori to retain a deposit as forfeited, a reasonable notice must be given of the intention to insist on a precise performance, or be will be considered as having waived such strict right. So if a lessee or a purchaser be sued for the recovery of the estate, and he have a remedy over against a third person, upon a covenant for quiet enjoyment, it is expedient (although not absolutely necessary) referring to such covenant.
NOTICE, AVERMENT OF, in pleading. This is frequently necessary, particularly
in special actions of assumpsit.
2. When the matter alleged in the pleading is to be considered as lying more properly in the knowledge of the plaintiff, than of the defendant, then the declaration ought to state that the defendant had notice thereof; as when the defendant promised to give the plaintiff as much for a commodity as another person had given, or should give for the like.
3. But where the matter does not lie more properly in the knowledge of the plaintiff, than of the defendant, notice need not be averred. 1 Saund. 117, n. 2; 2 Saund. 62 a, n. 4; Freeman, R. 285. Therefore, if the defendant contrasted to do a thing, on the performance of an act by a stranger, notice need not be averred, for it lies in the defendant's knowledge as much as the plaintiff's, and he ought to take notice of it at his peril. Com. Dig. Pleader, C 75. See Com. Dig. Id. o 73, 74, 75; Vin. Abr. Notice; Hardr. R. 42; 5 T. R. 621.
4. The omission of an averment of notice, when necessary, will be fatal on demurrer or judgment by default; Cro. Jac. 432; but may be aided by verdict; 1 Str. 214; 1 Saund. 228, a; unless in an action against the drawer of a bill, when the omission of the averment of notice of non-payment by the acceptor is fatal, even after verdict. Doug. R. 679.
NOTICE, TO PRODUCE PAPERS, practice, evidence. When it is intended to give
secondary evidence of a written instrument or paper, which is in: the
possession of the opposite party, it is, in general, requisite to give him
notice to produce the same on the trial of the cause, before such secondary
evidence can be admitted.
2. To this general rule there are some exceptions: 1st. In cases where, from the nature of the proceedings, the party in possession of the instrument has notice that he is charged with the possession of it, as in the case of trover for a bond. 14 East, R. 274; 4 Taunt. R. 865; 6 S. & R. 154; 4 Wend. 626; 1 Camp. 143. 2d. When the party in possession has obtained the instrument by fraud. 4 Esp. R. 256. Vide 1 Phil. Ev. 425; 1 Stark. Ev. 862; Rosc. Civ. Ev. 4.
3. It will be proper to consider the form of the notice; to whom it should be given; when it must be served; and its effects.
4.-1. In general, a notice to produce papers ought to be given in writing, and state the title of the cause in which it is proposed to use the papers or instruments required. 2 Stark. R. 19; S. C. 3 E. C. L. R. 222. It seems, however, that the notice may be by parol. 1 Campb. R. 440. It must describe with sufficient certainty the papers or instruments called! for, and must not be too general, and by that means be uncertain. R. & M. 341; McCl. & Y. 139.
5.-2. The notice may be given to the party himself, or to his attorney. 3 T. R. 806; 2 T. It. 203, n.; R. & M. 827; 1 M. & M. 96.
6.-3. The notice must be served a reasonable time before trial, so as to afford an opportunity to the party to search for and produce the instrument or paper in question. 1 Stark. R. 283; S. C. 2 E. C. L. R. 391; R. & M. 47, 827; 1 M. & M. 96, 335, n.
7.-4. When a notice to produce an instrument or paper in the cause has been proved, and it is also proved that such paper or instrument was, at the time of the notice, in the hands of the party or his privy, and, upon request in court, he refuses or neglects to produce it, the party having given such notice, and made such proof, will he entitled to give secondary evidence of such paper or instrument thus withheld.
8. The 15th section of the, judiciary act of the United States provides, "that all the courts of the United: States shall have power, in the trial of actions at law, on motion, and due notice there of being given, to require the parties to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery; and if a plaintiff shall fail to comply with such order to produce books or writings, it shall be lawful for the courts, respectively, on motion, to give the like judgment for the defendant, as in cases of nonsuit; and if the defendant fail to comply with such order to produce books or writings, it shall be lawful for the courts, respectively, on motion as aforesaid, to give judgment against him or her by default."
9. The proper course to pursue under this act, is to move the court for an order on the opposite party to produce such books or papers. See, as to the rules in courts of equity to compel the production of books and papers, 1 Baldw. Rep. 388, 9; 1 Vern. 408, 425; 1 Sch. & Lef. 222; 1 P. Wins. 731, 732; 2 P. Wms. 749; 3 Atk. 360. See Evidence, secondary.