A c A o CO o c: ^ 33 35 O 8 O z 5 3> 3 ^ OD g 3 3J -< 3 -n o 6 I— 3 6 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY NOTICE Modem American Law Lecture Blackstone Institute, Chicago NOTICE BY GEORGE FITCH WELLS, A.B., LL.D. One of a Series of Lectures Especially Prepared for the Blacksto7ie Institute BLACKSTONE INSTITUTE CHICAGO Copyright, 1916, by Blackstone Institute Copyright, 1921, by Blackstone Institute T GEORGE FITCH WELLS GEORGE FITCH WELLS Mr. Wells is a native of Iowa. He is a graduate of the Law School of the University of Michigan. Previous to studying law there he had pursued studies at Carleton College at Northfield, Minne- sota, and at Oberlin College, Oberlin, Ohio. On his admission to the Bar in Ohio in 1895, he entered at once upon the general practice of law in the city of Toledo and so continued until the fall of 1912. In 1898 he was appointed lecturer upon the subject of Medical Jurisprudence in the Toledo Medical College, and continued his services in that connection for about fourteen years. In the sum- mer of 1908 Mr. Wells was instrumental in organ- izing a law department in connection with St. John's College in Toledo, and for four years was closely identified therewith, both as a teacher and in an administrative capacity. In September, 1912, Mr. Wells gave up the active practice of the law and removed from To- ledo to Morgantowu, West Virginia, where he accepted a professorship in the College of Law of West Virginia University. Two years later he was invited to the deausliip of the Law School of the University of North Dakota, which posi- tion he accepted and now holds. Mr. Wells is the author of "Medical Jurispru- dence" and "Extra-Hazardous Occupations" in Modern American Law. NOTICE By Geo. p. Wells, A.B., LL.D. The word "Notice," as used in legal terminology, has a technical meaning — in fact, it has two distinct technical meanings. In the equity branch we have what is known as the *' Doctrine of Notice," but more often spoken of simply as "Notice." This is a part of the substantive law of Equity Jurispru- dence — the rules laid down for the guidance of men in their daily conduct of business and social affairs one with another. The adjective side of the law, including equity, also makes use of the term "Notice." By "adjective law," or "the adjective side of the law," we mean the rules which govern procedure in the trial of causes ; and sometimes, too, we mean the more or less formal dealings between individuals respecting their various rights. It will be well, perhaps, to consider Notice first as an equit- able doctrine, and later as a more formal part of the law having to do mth procedure. THE EQUITABLE DOCTRINE OF NOTICE : WHAT IS IT? The doctrine concerns itself with conflicting claims to property; or perhaps it would be better to say, with rights in and to property. We often meet the 5 6 MODERN AMERICAN LAW LECTURE statement that various equitable rights and remedies are not available against one who is a bona fide purchaser without notice ; or that they are enforce- able against one who purchased with notice. Now, what does that mean ? Does it mean that if A buys a piece of land from B, against which land C has some claim — ^a mortgage, for instance — the existence of which is unknoAvn to A, then C cannot enforce his mortgage lien as against A's interest? Well, it may mean just that, and it may, on the other hand, mean just the opposite, depending upon some further details. If, for instance, C's mortgage had been filed for record with the proper official of the county within which the land is situated, he may have his remedy of foreclosure and sale because A is consid- ered to have had notice of the mortgage from the mere fact of its having been recorded, or filed for record, even though he had no knotvledge whatever of its existence. The reason for such a rule is that courts and legislatures have deemed it more equit- able to all concerned to require an intending pur- chaser to make careful examination of the books of records for anything which might adversely affect his title to the property, than it would be to compel the lien holder to search out all possible intending purchasers and bring the fact of his lien to their personal knowledge. And so, growing out of this equitable rule, we have our recordation acts which provide that the holder of a deed, mortgage, or other instrument affecting the title to land may fully protect his interest in such land as against later pur- chasers or lien holders by recording his instrument NOTICE 7 in the designated public office. Indeed, some of the states go further, and declare the lien holder pro- tected if he has left the instrument in the proper office with instructions to record it, even though it is never actually placed upon the record books, or although such a mistake has been made in copying it into the record books that it does not give notice as to the land actually encumbered. But suppose C has not recorded his mortgage; then, under the facts assumed, that A had no knowl- edge of C's claim, it would appear that A ought to have a good defense to C's action of foreclosure. That is exactly the case, but subject, however, to one exception: if, in spite of the fact that C had failed to file his mortgage in the proper recording office, and in spite of the further fact that A did not know of the existence of such mortgage, yet if A had such infomiation or knowledge of other facts as would induce an ordinarily careful and prudent man to make further inquiry or investigation into the con- dition of the title of the land he was about to pur- chase, and such investigation or inquiry would have revealed the existence of C's mortgage, A would then be held to have had notice. And this would be the case even though A had not, in fact, made such investigation or inquiry. This is what is known as '''putting a man on inquiry," and is a very important feature of the equitable doctrine of notice. The late Professor Bispham, in his work upon Equity, has spoken of Notice as "the legal cogni- zance of a fact . . . the definite legal cognizance, either actual or presumptive, of a right or title ; and 8 MODERN AMERICAN LAW LECTURE the doctrine of Notice in Equity may be described to be this, viz. : that where such cognizance is shown to exist, either by proof as a fact or by presumption of law, the right or title thus proved to be known, will be capable of assertion in equity as against a party who might otherwise and at law have disre- garded it. ' ' And it wdll be seen from the illustration above given that Notice does not necessarity mean knowledge : for notice often exists without any actual knowledge, while not infrequently there may be actual knowledge without that which in law amounts to Notice. For instance, courts are often under the necessity of taking ''judicial notice" of facts of which no actual proof can be made in the trial of the cause; and it not infrequently happens that court and jury may be obliged to pay no attention to certain facts which, although they are known or proved to exist, cannot be considered in the judicial determination of the matter in litigation. So, too, if A, before he became an intending purchaser and opened negotiations for the land, should be shown a mortgage against it, not by the mortgager or the mortgagee, but by some third person in whose hands the instrument happened to be at the time, A would certainly have knowledge of the instrument; and if he afterward purchased the land, he would do so in the full light of such knowledge, although in the legal sense of the term he has not had notice of the mortgage. The various business affairs of our daily life, often highly complicated, make it neces- sary that notice shall frequently take the place of actual knowledge; but it must not be inferred NOTICE 9 from this that actual knowledge is not to have the same effect upon the rights of the parties that notice has. Notice is but a substitute for actual knowledge, which good policy requires in human dealings. Speaking in the legal sense, Notice may be defined as "information concerning a fact actually communicated to a party by an authorized person, or actually derived by him from proper sources, or else presumed by law to have been acquired by him, which information is regarded as equivalent in its legal effects to full knowledge of the fact, and to which the law attributes the same consequences as would be imputed to knowledge." The equitable doctrine of notice requires that the person to be charged with notice must have received it himself. It will not be sufficient, for instance, in order to charge A with notice, to show merely that A's vendor had notice: if A himself had no notice he has a good defence. And it has been held that the doctrine goes even to this extent, viz: that if A is an innocent purchaser of the legal title for value, even though his vendor had notice of an outstanding equity, and A afterwards conveys to a third person, B, who had notice of such equity, still B would have a good title and could protect himself by A's want of notice. This rule is for A's benefit, not B's, although B may incidentallj^ profit by it; for if the rule were otherwise, it might well happen that after A's bona fide purchase for value, without notice, something might occur which would serve as notice to all the world, and if the rule were not as it is, the property would be unsaleable in A's hands, and 10 MODERN AMERICAN LAW LECTURE locked up there, because he could never find a pur- chaser not affected with notice. But if, in this case, A should sell back again to his vendor, or if the property, after 23assing through the hands of several o\vners subsequent to A, finally comes again into the hands of A's vendor, the notice which he originally had would re-attach and he (A's vendor, the ultimate purchaser) would be bound thereby. The reason for this is that it would be grossly unjust and inequitable to permit the man who had originally committed the wrong to thus perfect his title and reap the benefit of his own wrong ; nor will it work an}^ great hardship upon A, for it only removes one customer (his vendor) from the market. Another feature of the doctrine of notice which is important to consider growls out of the time when notice is given. Of course it is beyond question that notice of an equity which does not reach the pur- chaser of property until the consideration has been paid and the conveyance completed is too late; and it is just as clear that if the purchaser has neither paid out his money nor acquired legal title before receiving notice of some adverse claim or lien, such notice ought to be binding upon him. But suppose the purchaser obtains a deed giving him the legal title, but before he pays the purchase money he gets notice? Or suppose that he has paid the purchase price in ignorance of any outstanding equity, but before the conveyance is made to him he receives notice? What is to be done then? The rule has become established in England in such cases, that the purchaser is not protected unless the entire NOTICE 11 transaction was completed — money paid and convey- ance made — before legal notice; and it will not aid liim if he has received his deed and paid a part of the purchase money: the full purchase price must have been paid before notice. In the United States the same rule obtains in a case where the conveyance is made but no money paid before notice is received ; but where the purchase money has been paid either in whole or in part, and notice then comes to the purchaser before he receives his deed, he ^Vill be protected, in many of the states, to the extent of the amount of money paid by him before notice. How- ever, in some of the earlier cases in a few of the states — New York, Illinois and New Jersey, for instance — the English rule is followed. KINDS OF NOTICE—ACTUAL AND CONSTRUCTIVE Notice is classified as either Actual or Construc- tive; and Actual Notice is again to be considered as direct, and as indirect or presumptive notice. Direct, or positive, actual notice is instanced when direct information of a fact is brought to a party directly; indirect or presumptive or implied notice consists in the knowledge by a party of circumstances which lead to a knowledge of such fact. On the other hand, constructive notice is that notice which binds a party by virtue of a conclusive presumption of law. This legal presumption is drawn from the attending facts and circumstances, and is to the effect that a party must necessarily have received communication of knowledge. The facts and cir- cumstances must be proved, but when they are estab- 12 MODERN AMERICAN LAW LECTURE lished, the presumption arises — "a legal inference from established facts, which, like other legal pre- sumptions, does not admit of dispute." It may seem that there is little, if any, difference, but great confusion instead, between constructive notice and implied or presumptive notice. The dif- ference, however, is not very obscure. We may say that implied notice is an inference or presumption of fact, but one which may be explained or contra- dicted by proof; while constructive notice is a pre- smnption of law which may not be controverted by proof. For instance, if one receives such informa- tion as will put him upon his inquiry, that is said to amount to notice. If he fails to make the inquiries which his information suggests, he is pre- sumed to have wilfully turned away from a knowl- edge of the real condition of the matter, and the law presumes as a conclusion of fact that he really knows what he would have known if he had taken the proper steps to inform himself. But if he does, in fact, inquire, but fails to discover the fact after an honest effort to do so, the presumption of his knowl- edge of that fact will be rebutted. An example of constructive notice is found in the recording of a deed or other instrument affecting title to land. Under the registry acts every one is bound to take notice of the condition of the title to any piece of land as shown by the instruments filed for record in the county where the land is situated; the law con- clusively presumes a party to have knowledge of that which has been recorded or left for record, and this presumption cannot be overthrown. Professor NOTICE 13 Robinson, in his Elementary Law, says that ' ' A pre- sumption of law is a conclusion adopted arbitrarily by the law as its chosen interpretation of established facts." As such, it cannot be rebutted. But a pre- sumption of fact is a legal conclusion that a certain fact has arisen because in the common experience of mankind it ordinarily would arise as a result of certain other known facts. This latter presumption may be rebutted. Actual Notice. Probably no difficulty will be experienced in getting a clear idea of direct actual notice. It should be remembered, however, that it must be definite and certain: mere rumors, vague and of no authority, cannot serve as notice. Nor is one bound to pa}^ attention to statements by anyone not having some interest in the property — that is, from strangers to the title. This rule has been laid down by a number of courts, but it is rather difficult to reconcile with that other rule requiring the intending purchaser to make due inquiry and inves- tigation and which holds him bound by the informa- tion concerning the title to the land which he thus might have obtained; and as a different rule has been pronounced, and followed by courts of undoubted authority, which seems to be more in har- mony with the doctrine of '* putting one on his inquiry." This rule is: that notice "need not come from a party or his agent, but it is sufficient if it be derived aliunde, provided it be of a character likely to gain credit." But while this last rule seems the 14 MODERN AMERICAN LAW LECTURE better one, there is still some difficult}^ in deter- mining just what sort of information will put the intending purchaser on inquiry — will amount to notice, in other words. Certainly mere idle rumors are not enough. The last rule says that the informa- tion must ''be of a character likely to gain credit." Perhaps this is as definite as a general statement can be made. Here, as in so many instances, what is reasonable under all the circumstances of the case must be the final guide. It has been held, for instance, that among circumstances which would put a party upon inquiry are : great inadequacy of price, close relationship, close intunacy, or business deal- ings (although it has been questioned whether mere relationship or intimacy, without any other circum- stances, will be sufficient). So, too, defective, or irregular, or improper recording of an instrument, ^'although clearly not a constructive notice under the statute, may be sufficient to put a purchaser upon inquiry, and so constitute actual notice." But suppose a party receives a statement or com- munication wdiich, if it stood alone, would be actual notice, either direct or implied, but which is also accompanied by further statements which have a tendency to explain or nullify the effect of the earlier statements : may the party rely on the whole of the communication? or is he to be confined only to that part of it which shows, or tends to show, the exis- tence of some prior conflicting claim ? In such cases the courts have been guided by the following prin- ciple: if the only information as to the conflicting claim comes to the party from one who is an entire NOTICE 15 stranger to the transaction — one who has no inter- est of any kind in the matter — and this stranger also states that such conflicting claim has been aban- doned, or discharged, or that it no longer exists; then, it seems, the party may rely upon the entire statement, and unless there is some other fact which should indicate a special reason for believing the former part of the statement to the exclusion of the latter part, he is not ]3ut upon inquiry. This is so, because such a stranger to the transaction has no interest in deceiving the purchaser by misrepresen- tation or by concealing the truth; but if the vendor or mortgagor himself admits that his title was defec- tive, or anything else which would of itself amount to notice, and also states that such defect has been cured in some manner, the purchaser will not be warranted in accepting such statement in full, but must look with some suspicion upon the declaration that the defective title has been cured, and must satisfy himself from other sources that such part of the information is true. He is put upon inquiry by the earlier part of the grantor's statement — the admissions as to defects in title — and because of the informant's strong personal interest in the trans- action, which would tend to induce him to misrepre- sent or conceal the true state of facts, he cannot rely alone upon such grantor's explanation of those admissions. The admissions concerning defective title are in the nature of declarations against the grantor's interest, and are therefore considered to be more likely to be true than the latter statements which are more in conformity with his interests. 16 MODERN AMERICAN LAW LECTURE If the purchaser receives notice of some conflicting claim, and makes inquiry concerning it from the one who holds or asserts it, he may rely upon the infor- mation received from such claimant. If, upon such inquiry by the intending purchaser, the adverse claunant either denies the existence of such claim, or keeps silent, or states it to be of a certain amount or kind, such claimant cannot thereafter assert that the purchaser is bound by notice. Constructive Notice. It has alread}^ been suggested that constructive notice arises from presumption of law. It assumes that the part}^ has had no actual knowledge or information regarding the claim or fact. Construc- tive notice is an equitable doctrine, solely; and it has been distinguished from the inference of knowl- edge, which the common law frequently drew, in this way: the common-law inference relates to, and infers, the existence of actual knowledge, Avhile constructive notice does not infer actual knowledge, but rather, from the existence of certain facts, imputes knowledge of certain other facts. For instance, where the agent of a party has notice of some outstanding claims adverse to the title v/hich the party is about to acquire, the law imputes to the principal the same information as the agent had, and so the principal will be held to have had con- structive notice. There are, however, some excep- tions to this general rule. For instance, it must appear that the agent was acting as such at the time he received notice in order that it may be binding NOTICE 17 upon the principal ; and notice coming to one many years before he acted in the capacity of agent for another, will be held not binding upon the latter. Also, if the agent is liimself the author of the fraud, the principal cannot be charged with notice. There is some conflict of authority over the question whether or not it is necessary that the information be received by the agent in the course of the same transaction which it is sought to have affected by the constructive notice, but the weight of authority is probably on the side of such requirement except in cases where the notice comes during some trans- action closely connected with and shortly prior to that in question. Of course, the information should be such as to materially affect the principaPs rights in the transaction, and must be such that it becomes the duty of the agent to communicate it to his prin- cipal, although it is not essential that he should, in fact, so communicate it, in order to charge the prin- cipal with constructive notice. So, too, the possession of property by one other than the grantor will be constructive notice to the grantee of the adverse, outstanding claim, either legal or equitable. This possession, however, must be a present one, and must be inconsistent with the title of the record owner; a mere former possession, even though some of the evidences of it still remain on the land, has been held insufficient, and so also with regard to a possession which did not commence until after the sale was made to the party sought to be charged with notice. Moreover, in the case of moveable property which is usually protected by 18 MODERN AMERICAN LAW LECTURE title papers, possession by one in such a way as not to be inconsistent with ownership by another person having the record title will not be enough per se to put a third person upon his inquiry and charge him with constructive notice. Thus, it has been held that possession of a vessel by one as master thereof is not notice, to persons dealing with the vessel, of a prior parol purchase by such master of a half interest in the vessel. And in case the possession of land is by one as lessee, it is constructive notice to the intending purchaser not only of the tenant's rights as such, growing directly out of his lease, but also of any other rights or interests which he may have acquired in the land by reason of collateral agreements — such as a contract for renewal of the lease, to convey the land, or the like. Another illustration of constructive notice is found in the case of one who is attempting to establish his title to a piece of land and is obliged to rely upon a certain deed, or a series of deeds, to do so. Under such circumstances he will be held bound by con- structive notice as to everything affecting the land which appears in the chain through which he derives title. This is true whether such information appear as a definite recital in some one or more of the deeds in the chain, or whether it appear upon the face of the deeds merely by way of reference. The reason for this rule is clear and is found in the fact that any such recital or reference anywhere in the chain of title operates to put him on his inquiry. It should be remembered, though, that there may be recitals in deeds or other instruments which do not have NOTICE 19 this effect of notice : a purchaser will not be required to take notice of matters set forth in a deed which do not refer to nor affect his rights in the property in question, nor give other persons any rights therein. And as in the case of notice by possession, a party is only bound by deeds or instruments actually in existence at the time. A deed in contem- plation merely, but not executed, although made out ready for execution, will not serve to charge the purchaser with notice. But if a deed in the chain of title recites or refers to some other and collateral instrument which w^ould affect the title, the purchaser is bound by notice of the contents of such collateral instrument even though it may not be recorded; although its record would be necessary to charge him with notice if it had not been mentioned in the direct chain of title. Mention has already been made of the recordation acts of the various states in this country. In some of the states such recording is virtually required, and an unrecorded instrmnent is held to be void as against subsequently acquired interests in good faith for valuable consideration, where the instruments showing such later interests are first to be placed upon record. In other states, recording or register- ing is permissive merely; but even there the holder of such unrecorded title will be postponed to the rights of a subsequent bona fide purchaser for value and without some other notice. In order for the registry to operate as notice, however, it must appear that the instrument was duly executed and acknowl- edged or proved according to the requirements of 20 MODERN AMERICAN LAW LECTURE that particular jurisdiction so as to entitle it to be recorded ; it must be such an instrument as the stat- ute authorizes or requires to be recorded; in many of the states — perhaps the majority — the record must be in the proper books. For instance, a deed recorded in the book of mortgage records, or of mechanic's liens, could hardly be held to charge one with constructive notice; nor can one be charged with notice of an instrument recorded in a county other than that in which the land in question is situ- ated. The test being that when one examines the record he shall be able to obtain therefrom full infor- mation as to the state of the title under examination, it is held generally that the record must be a true copy of the instrument registered, and it must cor- rectly describe the property affected with sufficient fullness readily to identify it. A party is entitled to rely upon what he finds in the record ; and it will be constructive notice only of what is contained within itself. The doctrine of lis pendens is sometimes referred to as being one kind of constructive notice. This is hardly correct, but the doctrine may be stated here as one by which a suit in chancery, pending and prosecuted in good faith, and followed by a decree, is constructive notice to any person acquiring an interest in the subject-matter of the suit from the defendant, pendente lite, of the equitable and legal rights of the plaintiff as set forth in his bill and settled by the decree. The doctrine of lis pendens is only applicable, of course, to those who are strangers to the action pending; but all parties to a NOTICE 21 suit, if they have been properly brought into court by service of summons, are held to be chargeable with constructive notice of all steps taken in the cause subsequent to such service. This constructive notice applies to every proceeding in the cause, dowTi to and including the judgment, even though no copies of the orders, etc., were served upon such party — unless, of course, the court had ordered such service. It makes no difference that the party sought to be charged with notice has not in fact appeared or entered his appearance in the cause, either in person or by attorney, nor that he has no actual inf oraiation of the various steps taken; this is so, because the courts presume all parties to be always in court after issue is joined, either attending to their business there in person or by attorney. NOTICE AS A MATTER OF PROCEDURE In many cases the law requires notice to be given to one party before the other is allowed to maintain his contention. Thus, it may be required as a pre- requisite to the making of a motion for some par- ticular order; before taking an appeal to a higher court; before selling land for delinquent taxes and the like. So, too, notice may be required as a part of the contract between the parties thereto — as a condition precedent to a binding obligation. This requirement of the law as to notice does not always take the form of an express provision by statute. If it is sought to subject a person to a penalty, for instance, for the neglect of some statutory duty, notice to perform such duty is usually necessary 22 MODERN AMERICAN LAW LECTURE before the obligation and its subsequent liability for neglect to fulfill it arise ; and unless such notice has been expressly made unnecessary by law, proceed- ings without notice, under such circumstances, have been held void because of such lack, even though the statute imposing the duty made no provision for the giving of such notice. There may be exceptions to this rule : as where the giving of notice is impossible, or will be of no avail. For instance, in a case where land was being sold for taxes, the statute required that a notice of such sale be posted in a public place where the land to be sold was situated; and it was held that such posting of notice was not necessary, as it appeared that the place where the land was situated was absolutely uninhabited. While it is a general rule that a notice which might ordinarily be required is not necessary where the fact as to which the notice would relate is equally known to both parties, or where the party otherwise entitled to notice has means of informing himself from some definite source, yet if the information concerning the fact lies more particularly Tsdthin the knowledge of one party than of the other, notice will probably be required. But if A, to whom notice is due — that is, for whose protection or benefit the notice should be given — waives it, such waiver is held to be equivalent to the notice itself, and no further notice is required. It should always be remembered that where the statute prescribes notice, such statu- tory requirements should be strictly followed both as to the form and the manner of giving or serving the notice, if any such particulars are given. But NOTICE 23 where the statute simply requires a notice to be given, without stating the manner of serving it, the rule has been laid down that actual notice — not con- structive — will alone satisfy the statute. It is always best to give the notice in writing; and where it is practicable, the notice should be prepared in dupli- cate and one copy left with the person to be served, while his acknowledgment of such service should be endorsed by him on the other copy and kept by the party giving the notice. Then, in case of a dispute as to the time, or the fact of giving the notice, or as to its contents and sufficiency, definite evidence may be offered by the party making the service. It must be borne in mind, however, that merely acknowledg- ing service of written notice will not amount to a waiver of the objection that the service was made within the proper time; but if the acknowledgment specifically admits due service, or due service on a certain day, the rule will be otherwise. In most instances where notice is required by law, either by statute or in the exercise of good faith and fair dealing, no exact form need be followed. Of course if the statute prescribes a certain form, it must be followed. But unless the form set forth in the statute (where one is set forth) is mandatory it may be considered as a guide merely ; and if the notice gives the necessary information to the other party, and does not mislead him, it is enough, and will not be vitiated because of informalities or lack of artifi- cial drafting. While it is always best to give a required notice in writing, as already pointed out, it may not always be 24 IMODERN AMERICAN LAW LECTURE necessary to do so, as a matter of law. Where a con- tract requires notice, but does not specify how it shall be given, a parol notice will be sufficient. But where a statute definitely requires notice, or authorizes it, in a legal proceeding, it is now well settled that writ- ten notice is meant ; and in such cases parol notice is not sufficient. The same is true also, where the statute requires a notice to be filed. As illustrating what will satisfy the requirement of having the notice in writing, it has been held that notice given by tele- graph was sufficient; but this probably would not satisfy the law if it also required the notice to be served by some particular person, or by some one of a specified group. And written notice should be signed. This is usually held to be essential in a case of statutory notice, unless, perhaps, it might be waived if the person whose duty it was to sign the notice has delivered it in person to the one entitled to receive it. In many instances it will be found that the statute requires the notice to be given by some definite person, such as the sheriff, constable, coroner, or some other officer, or by the party himself or his attorney. Where such is the case, the law must be carefully observed, and service by another than the one specified will not be sufficient. Sometimes it will be found that the notice is to be served by either some designated officer, or, in the option of the party, it may be served by anyone not interested in the litiga- tion or the subject-matter thereof. Where the law requires service of notice by some specified person, and others join him in the giving of such notice, such service will not be invalid. NOTICE 25 HOW NOTICE TO BE SERVED The requirements of the statutes of the different states as to the manner in which notice is to be given are widely variant; and an examination of the statutes of any one state will reveal a considerable difference in the manner in which notice may be given under all the different circumstances. Some- times the notice may be given by publication or by posting ; but it is the general rule that where the l^w requires a notice at all and does not also provide thj^, manner in which it is to be given, it is actual notice that is meant. Under such circumstances, a publica- tion in a newspaper merely — even in a newspaper subscribed for and taken regularly by the person sought to be affected by notice — will not be sufficient to charge him with notice ; it would still be necessary to show further that such person had seen or read the notice, in order to charge him with it. But where the statute or an order of court provides that the notice shall be given by publication or by posting in some public place, then, of course, such publication in the designated paper or papers, or the posting, will give constructive notice ; and the same would be true if the notice were given in any other manner — such as by mailing, for instance — in obedience to the positive requirement of law or court order. The length of time of notice, if none is specified by the law or order of court, is to be a reasonable one. What is a reasonable time may vary, under different conditions. Thus, a notice to take depositions in the same or a nearby town would be reasonable if it gave 26 MODERN AMERICAN LAW LECTURE but one or two days' time; while if the depositions were to be taken in a distant part of the country, reasonable notice might require a week or more ; the notice should allow at least one day for preparation and sufficient time to travel to the place of taking the deposition by the ordinary means, not counting Sun- days. Where the length of time of the notice is set forth in the statute or legal order, the day of service is usually excluded and the last day of the period is included, in the computation. Holidays and Sundays are sometimes counted and sometimes not, depend- ing largely upon the statutes or the custom of the particular jurisdiction. It is the rule, however, that if any dispute arises as to the method of computation, that method will be selected, or the statute will h& construed, most liberally in favor of him who is to be affected by the notice. The statutes providing for the publication in news- papers of notices in various matters frequently specify in considerable detail the character of the paper to be selected, the language in which the notice is to be printed, how often the notice must appear, where the paper selected is to be published, etc. The statute must of course be followed, at least in the main. It has been held that publication in a paper printed in the place designated and bearing substan- tially, though not identically, the same name as that specified, is sufficient; and where a paper changed its name between the time of designating it and the time of publishing the notice, but otherwise the iden- tity of the paper was unchanged, the publication was held to be valid. It is often required that the publica- NOTICE 27 tion shall be in a newspaper ''of general circulation" or in *'a secular newspaper," and such requirement is satisfied by publishing the notice in a paper issued periodically and containing matters of a general and secular character, although it is devoted largely or almost entirely to legal or financial or commercial or trade matters and circulates scarcely at all outside the profession or trade to whose interests it is de- voted, in its own coimnunity. So also, a paper issued and sent to subscribers on a week day is held to be a secular paper, although its name would indicate it to be a Sunday paper only. The general rule is that where the statute does not prescribe any particular language either for the paper or for the advertisement of notice, the notice must be in the English language in a new^spaper printed in the same language. But this may be varied by circumstances, as where the city ordinance re- quired notice to be published in three daily papers, and only two were printed in English in the city, selecting a German paper for the third w^as approved by the court. If the requirement be that publication must be in a daily paper, it will be satisfied by insert- ing the notice in a paper issued six days a week, \vhether the omitted day be Sunday or a secular day. The statutes of the different states, or even of the same state, wall be found to read differently as to the number of times a notice must be published. Wliere it simply calls for one week's publication, one inser- tion in a weekly paper will suffice ; but if the statute requires a week's advertisement in a daily news- paper, it must be inserted each day for a week. And 28 MODERN AMERICAN LAW LECTURE if the order is for advertisement of a judicial sale in a daily paper, no time being specified, the publica- tion each day until the day of the sale is presumed to have been intended. There is considerable conflict of opinion as to the right method of computing time of notice under some of the publication statutes. For instance, where the law directs publication for a certain niunber of weeks — say three — when is the giving of notice fully com- plete? If the notice is first published on the 7th of the month, the second publication will come on the 14th and the third and last on the 21st (we are assum- ing publication in a weekly paper, for unless daily publication is required the notice will usually appear but once each week) ; is notice complete on the day of the last publication, the 21st ? or is it not complete until the close of the 28th day of the month? It is certain that if the law requires tliree iveeUs' notice to be given, such notice will not be complete until the expiration of three full weeks from the time of the first publication; and by the probable weight of authority the same method of computation would be employed w^here the law requires notice to be pub- lished for ** three successive weeks." After publication has been made, it is frequently the further duty of the party giving the notice to file with the court or other designated public officer an affidavit of proof of such publication. This should be an ordinary affidavit, signed and sworn to by the owner, publisher, or manager of the paper in which the notice was published ; should state the number of times the notice appeared in the paper, giving the NOTICE 29 dates of the first and last issues at least and stating that it was published regularly and successively each week from the first to the last dates inclusive ; and it should be attested by an officer authorized to admin- ister oaths. The affidavit should also contain a copy of the advertised notice, but it is not necessary that this should be written or typed into the body of the affidavit; it may be cut out of the newspaper and pasted at one side of the affidavit and incorporated therein by reference. Not only must the notice contain a sufficient de- scription of the property or rights claimed and of the nature of the claim itself to give full information to the party notified, but it must ordinarily be directed to him (or to them if more than one) by name. Sometimes, however, it is not necessary to give the names : as where it became necessary to pub- lish notice to a number of non-resident landowners, a notice addressed to the "non-resident owners of the following described lands, ' ' describing the lands, was considered by the court to be enough. Notice may sometimes be served by mail, by statu- tory provision. If such service is relied on, the party giving the notice must be able to show^ that he depos- ited in the post office or in a government letter box, or handed to a postman on his route, a letter contain- ing the notice, duly addressed to the party to be charged with notice and with the postage fully paid. In order that he may have proof of such service — and this is especially true where it is necessary that the party to be charged have actual notice — it is always advisable to register the letter and ask for a 30 MODERN AMERICAN LAW LECTURE receipt to be returned ; then, and then only in case of a dispute, can one be fairly certain that his service of notice by mail has been received by the other party. The question may sometimes arise whether notice should be served on a party himself, or upon his attor- ney. The answer to this question must depend largely upon the statutory requirements as to the various notices which may be necessary, and upon the circum- stances. It may be stated as a general rule that where notices are required in the course of judicial proceed- ings already pending, and the party to be notified is represented by an attorney, the notice should be served upon such attorney, and not upon the party himself ; but if he is not represented by attorney, or if his attorney has died and he has failed to appoint another one within a reasonable time, notice should be served directly upon the party. In case the party himself has died, it has been held that service of notice upon his attorney was invalid ; it should prob- ably be served upon the personal representative of the deceased, or upon the attorney of such represen- tative. It will be found, however, that the statutes frequently indicate upon whom — the party or his attorney — notice shall be served ; and if such statute is mandatory in its expression, it must be strictly fol- lowed ; but if it is permissive or declaratory merely, notice may probably be served upon either and be valid. l(/Ul^. GAYLAMOUNT® PAM PHLET BINDER Syracuse, N.Y. Stockton, Calif. UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 853 336 6