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Bouvier's Law Dictionary, Revised 6th Edition (1856)

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
Journ. 119.
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.