Page:The New International Encyclopædia 1st ed. v. 14.djvu/763

* NOTHOMB, 651 NOTICE. NOTHOMB, ncVtox', Jean IUptiste, Baron (1805-81 I. A Belgian statesman and diplomat, born at Messancy. Ho studied law at T-i^fie. and entered politics in Brussels as a contributor to the Courrier des I'di/s-Basi. He played an important part in the Uevohition of 1830, and in Novemlrcr of that year was appointed by the Provisional Governnn'iit a member of the Diplo- matic f'omniittee. In 1S.37 he received the port- folio of I'ulilic Works, and in that department founded the Helffian railway system, and in 1842 became .Minister of the Interior. He formed a new t'abinet in 184.'!, but his moderate policy was not lonjr successful, and he was forcc(l to retire by the coalition of 184.5. He was Minister at Berlin from 184.3 luitil his death. His chief works include Esytii hixloriiiue et politique unr la rirolution beige (1833; 4th ed. 1870). Con- sult Juste, Le baron Nothomb (Brussels, 1874). NOTICE (Lat. nolitia, knowledge, idea, from ftoscirc, to know). Xotice in law denotes exist- ing knowledge of a fact based upon information connnunicated by another, which knowledge has the cfl'ect of fixing the rights and liabilities of the party giving and the party receiving the information. The term is also sometimes applied to the act of giving the information which con- stitutes the notice. Unless otherwise stated, the term will here be used as first defined. Notice may be either (a) actual or {h") constructive. Actual notice is knowledge of a fact based upon information comraiuiicated by either writ- ten or spoken language. Constructive notice is knowledge which may not in fact exist, but which the law may presume to exist upon groiuids of policy, as where notice to an agent is deemed to be notice to the prin- cipal, although in fact the information is never comnuinicated to the principal : or where notice of pendency of action ali'eeting real estate is constructive notice of the action to any one dealing with the title to the real e-state, whether he has actual notice of the action or not (see Lis PejAen.s) ; or where notice to the purchaser of negotiable pa])er of facts by which he is 'put u|)OU inquiry' as to its validity may be constructive notice of a defense of the maker to any action founded upon the paper, or where one accepting a conveyance containing a refer- ence to some other deed is deemed to have con- structive notice of the other deed, although he may never have read it. The doctrine of notice as a means of fixing rights and liabilities has many applications at common law, the more important of which are: Liability of an indorser of negotiable paper, or of a promissory note, or a bill of exchange, is fixed by a notice of dishonor. The notice in order to charge an indorser must be given with due dispatch after dishonor or protest, usually on the day following; it must describe the bill or note and the nature of the dishonor. It ma}' be oral, although usually in writing, and may be served personally or by mail. If the holder or prior indorser is unable after due diligence to find the indorser or serve him with notice, neces- sity of notice to charge the indorser is dispensed vvitli. See Xegotiakle Ix.strume>ts. In general any one purchasing property with actual notice of any equitable claims or rights that there may be with respect to the propertv, or with notice of facts sutlicient to put him upon Vol. XIV.— I'j. inquiry, takes the i)roperty subject to such claims; as, for example, an equitable defense to negotiable paper, or fraud in the contract by which the vendee obtained title to the property, although a purchaser for value without notice would acquire the property free of claims. See Fkaud. Xotice by the landlord is necessary to ter- minate the tenancy of a tenant at will or by sufferance, or of a tenant from .vear to year. In the latter case the landlord must give notice at least a reasonable length of time before the end of any year of his election to ter- minate the lease. This time is now tLxed by statute in .some States. The landlord may, how- ever, waive his right acquired by notice given, and continue the tenancy by cxpresslj- giving his consent, or by continuing to accept payment of rent. When a creditor assigns his claim against his debtor without notice to the debtor, the debtor may pay the assignor and may thus discharge the debt. If, however, the assignee give the debtor notice of the assignment, the debtor is boimd to pay the assignee ; and if he pays the assignor, notwithstamling the notice to pay the assignee, he may nevertheless be compelled to pay the amount due to the assignee. See Assign- ment. The right of an insured to abandon the prop- erty insured to the insurer upon the happening of a partial loss is fixed by notice given by the insured to the insurer. If a proper case for abandonment, the mere giving of notice is sutli- cient. If not, a proper case for abandonment, the insured may not abandon unless the notice is accepted by the insurer. See In.surance. In addition to the various general rules of common law requiring notice to be given, notice may be required in special cases, as where statutes require notice to be given as a condition of fixing rights and liabilities; or where the parties to a contract stipulate expressly or im- pliedly for notice as a means of defining their rights under the contract. Whether notice must be personally served upon the person to be notified depends npon the particular kind of notice. In general all notices, except those requirc<i in the course of litigation, must be personally served. Notice required between litigants may be served upon the attor- neys in the case. When notice is required by statute, it must be served upon the person to be notified, unless otherwise specified in the statute. When the giving of notice is a condition precedent to creating a legal liability, a plaintiflf seeking to enforce the liability must allege the giving of notice in his declaration or complaint. And in general it may be said that the party relying upon notice as a part of his cause of action or defense must plead and prove it. When, however, the condition is in the nature of a condition subsequent, it is not a part of the pleader's cause of action, and need not be pleaded by him. See Pleading. Consult: Wade, T'refid'.se on the L/iir of Xotice an Affecting Civil Kights and Remedies (San Francisco. 1880); Bennett, Treatise on the Late of Lis PendPrm (Chicago, 1887) ; and for the rules affecting notice in cases of motions in actions or proceedings at law. no- tices of protest of negotiable paper, etc., consult the authorities referred to under Pbocedube; Pleading; Negotiable Instbument.s, etc.