CH. 177. remains to be added. Art. 11. subject, see Rules and Cases in American Precedents of declarations, Ch. 11. As to bills and notes, see Ch. 20: Index, refer- where the plt. doing a thing at the deft's. request, is a consideration; see Consideration; see Ch. 119, Ch. 123, also Ch. 144 and Ch. 177. art. 9. As to what has been said on this ences to sun dry orms, 114, 117. Where suit is sufficient, and no no § 2. Requests are of two kinds, general, as when the plt. says in his declaration, the deft., though often requested, has not done an act; this is mere form, and deserves no particular attention. Secondly, special requests; that is, requests or demands actually made on a party, and as these must be tice is neces- proved, usually, to a jury, they must be laid and averred, with time and place; that is, that on such a day, and at such Yelv. 53, 66, a place in the county or district, the party was requested to do the act, as to pay money, deliver goods, make a deed, Where a spe- &c. &c. sary; 121, 122, 168. cial request is necessary or not; § 3. Notices one party must give to another, in order to entitle the party bound to give notice, to his action; Cro. El. 74, to make his transaction legal and valid; are of several and cases re- kinds: As notice to the deft., the plt. has done an act Yelv. 66, 67. necessary to be done by him, to entitle him to his action: -Hutt. 73. or 2. Notice to the deft. to do an act he is not bound to do -Cro. Jam. until notified: 3. Notice of sales at auction, and of other 183, 505, ferred to. 523. 2 Salk. 457, 12 Mass. R. 121, 126, Baker v. Mair. sales 4. Notice to produce papers: 5. Notice one party has a lien on monies or property in another's hands, in order to his keeping the same for the party giving notice: 6. Where one party is to do an act, as repairs, &c., and the other is to prepare the means on notice, as find timber, &c. : 7. Notice to appear at some court, or before some magistrate, at time and place: 8. Notice by one attorney to another of trial, &c.: 9. The form and manner of giving notice: 10. Form and manner of making a request or demand: 11. Notice as required to be given by many statutes in particular cases: 12. Notice in equity that makes one privy to a trust, and so trustee. Ow. 41; Salk. 388; Cro. Car. 241, 271; Hob. 42. But notice is not necessary to be averred when the matter can be intended to be known without notice. If a statute prescribe a particular form of notice, that must be fully stated and pursued exactly, and an averment that due notice was given, is not sufficient; and a defective notice is not cured by appearance of the party. Where a party, by his contract, is entitled to twenty days' notice to begin a job, as painting a house, &c., may waive this right by his silence, when told he should have notice when to begin, and not claiming the twenty days' notice, but silently acquiescing in notice proposed by the other CH. 177. party. Art. 11. § 4. It is a general rule, if I am bound to make such assurance as J. S., a stranger, shall advise or direct, I am 3 Woods' bound at my peril, to procure notice as to what he advises Con. 600. or directs; but if I am bound to make such assurance as your counsel shall advise or direct, you must give me notice as to what he advises, &c., for the counsel must advise the party that employs him, and this party give notice to the other. § 5. So, if I be bound to make to A such an estate in W., 3 Salk, 247. I must give him notice what manner of estate I intend, as I am to do the first act, and make the estate, though the grantor, I am to direct the manner of the estate, and so give him notice of it. Marsh. York; Johns R. § 6. And as to the manner of giving a party notice, it is 4 D. & E. sufficient when the law requires notice to be given to him, 464, Jones v. before he be affected by an act to leave that notice at his 1 Caines' R. house, except in process to bring the party into contempt, 252.-Same then personal notice is necessary. So, notice to the tenant rule, New from year to year to quit, given and explained to his servant 3. maid, at his own house, not on the leased premises, deemed 440, Johnssufficient, on a presumption he had it, though no evidence he ton v. Robins. had it; but he did not call her to prove she did not communicate it to her master: Per Buller J., the jury might well presume that the notice reached the tenant: So, by mail is good. 1 Johns. Cas. 413. § 7. The court held, that in a criminal prosecution, notice 3 D. & E. must be to the deft. himself to produce papers; but in civil 306, Gales, actions, also in qui tam actions, notice to the deft's. attorney ter." is sufficient. q. t. v. Win § 8. This was an information against the deft. for illegally 2 D. & E. importing teas, and notice was to his agent and attorney to 202, 204, produce certain letters, containing evidence against the deft., General . Attorneyand held, sufficient, but that he. was at liberty to produce Le Merthem or not; but if he did not, attested copies might be chant. read against him, on the ground that they were the best evidence in the power of the attorney general, not on the ground of a fault in the deft. in not producing the original evidence, which was against himself. 8 Co. 92. § 9. If I am to do an act to or with A, at a place named, 5 Com. D. but no time appointed, as to pay money, deliver goods, or 126.-Co. L. make a feoffment to him, I must give notice to him of the 211, 212.time I will do the act, that he may be there to receive and do his part. § 10. Another rule; if I am to do a thing, on the feoffee 3 Com. D. or obligee's doing an act limited, within his knowledge, he 106.-Hob. 51. Cro. Jam. 492.-5 Co. 113 Cro Car. 392, 394, Gymlett v. Sands. CH. 177. must first do his act and give me notice of it, as the price he Art. 11. sells goods to others for, when I am to give him that price, and if he sue me, he must aver the price and notice in his declaration; and one's title to land shall not be defeated by a secret condition or conveyance without notice of it to him; and one is not bound to take notice but where the means of it are in his power. But, generally, one interested in land is bound to take notice as to what is done concerning it, especially, if no one is bound to give notice. As husband, tenant for life, remainder to his wife for life, remainder to his son in tail, the husband made a feoffment with warranty, which barred the son, and after his death the wife joined with the son in a fine. Held, her estate was forfeited without notice of the feoffment; for it being on the land, was a notorious thing, of which she was bound to take notice, at her peril, especially as no one was bound to give her notice. So, if a feme lessor marry, the lessee is bound to take notice of the marriage, and, at his peril, to pay the rent to the husband. Gardner v. 6 Cro. Jam. 3 Com. 107. 3 Com. D. 108.-1 Rob. 428, 465. 6 Mod. § 11. So, every one is bound to take notice of a condition affecting his estate in land, &c., especially if it be expressed in the deed, will, or writing, under which he holds his estate. § 12. The manner of making request ought to be certain and express; as where the lessor is to find timber for the lessee, who is to repair, the lessee must not only request him to find it, but also give him notice how much is wanted, and the request must be to him who is to perform; but when I am to deliver possession to A, or his assigns, and he assigns Fitzburgh v. to two, a request to one is sufficient; but a request, at any Dennington, place, is sufficient, though the act is to be done at a certain 227 and 259; place, and also, the request must be made when the condition can be performed. As if a master be bound to make his Frampton v. apprentice free, &c., when his time is out, if requested; must Coulson, be a special request, when his time is out, and it is a good defence for the master to plead that he was not requested then, or after; and, it is not to be intended one will request a thing to be done before it is to be, or can be done; and want of special request, when necessary to the action, is not aided by verdict, nor by pleading non assumpsit and verdict thereon, for that is no waiver of the request; and as to the time of request; 1 Wils. 33. but see Am. Preced 78.-5 Com. D. 356. 3 Bul. 299.Jones 85. 5 Com. D. 357.-Jon. 56. Hard. 38. § 13. But if a special request be necessary, and the plt. alleges it, but omits the time, and the deft. does not join issue on the request, but pleads non assumpsit &c., it is aided. And if a promise be by three persons, a special request to one is sufficient. So an executor sues on a promise to the testator to pay him on request, and lays a special request by the executor, and licet requisitus, only by the testator, this is sufficient request, and well made, for the action is founded on a request made by the executor. Cн. 177. Art. 11. 2 Vent. 75. § 14. So, if it be said, the plt. at such a day and place, 5 Com. D. shewed the note and requested it, it is well, though not said 357.then and there, for all is intended to be done at the same Cro. El. 240, time. So, if a special request be laid in the first count; Barnes v. alike requested, is enough in the second count, for it refers to May. the first. This is also among the proofs that one count may refer to another, though it has been often said one cannot help another. But notice not expressed may be implied 5 Com. D. and intended; as in debt for treight on a charter-party, and 359, Dodd v. the plt. says he delivered the goods to the deft. himself, notice is intended. And whenever an act, stated in a declaration, may be construed to be done to the deft. himself, notice is intended. So, notice to a party need not be stated where he is held to take notice, as each member of a corporation is 498. bound to take notice of its by-laws. Atkinson. Cro. Car, Parsons. § 15. Performing part supersedes special request; as where 10 East, 359, the plt. bought hay of the deft., in consideration whereof, Bowdell v. he promised to deliver it to the plt., and allow him to take it away as he wanted it, when requested; plt. averred, the deft., after suffering the plt. to take part away, sold the residue to other persons. Held, this allowing the plt. to take a part, made it unnecessary to aver a request to deliver the residue. § 16. Notice to be given by one party to the other, of trial. This is not much practised in the United States; but only in a few courts that follow the English practice. For the cases under this head, see Salk. 645; Mitchell v. Griffiths, 2 D. & E. Hall v. Buchanan; 1 Stra. 531, Green v. Gauntlett; Dougl. 70, Hayly v. Riley; 2 Stra. 1164, Bogg v. Rose; 1 Dall. 211; 2 Dall. 195; 1 Johns. Cas. 391, Burr v. Skinner; 3 Johns. R. 144, Clinton v. Mitchell; 2 Johns. Cas. 111, Knapp v. Mead; 2 Dall. 150; 5 Johns. R. 232; 1 Johns. Cas. 316, Malcolm v. Bayard; 3 Johns. R. 250, Kleecke v. Styles; 7 Johns. R. 537, Dizen & wife v. Bates; see Practice, Ch. 194; 1 Johns. R. 517, Blasdale v. Babcock; 6 Johns. R. 19, Jackson v. Sherman. § 17. If papers are on record, the court will not have 2 notice served on a party to produce them, merely as a cheap mode of procuring evidence. When notice must be given or not, to produce papers; 13 Johns. R. 92; 17 Johns. R. 293. The general rule is, in civil and criminal cases, that if the form of the action gives notice to the party to be prepared to produce the papers, if necessary, to falsify the evidence of the other party, it is not necessary to give notice. Dall. 332. 12 Johns. Clowes v. Hawley. R. 489, CH. 177. Art. 12. § 18. When a matter lies, equally, in the knowledge of plt. and deft., an averment of notice is not necessary, as if it be an act to be done by a stranger; and where a promise is to do a certain act, or pay a sum of money, and the deft. has 230, Lent & not done the act, a special request to pay the money needs. al. v. Padelnot to be alleged. ford. 10 Mass. R. 3 Cranch, § 19. In the law of Virginia, it is not sufficient to give 293, Buddi- notice to an attorney at law of the time and place of taking a cum v. Kirk. deposition, but he may agree to receive or waive notice, and -Kirby's R. 112, Suffrien is bound. And an assignment of debts, and balances of acv. Pringle. counts, cannot be pleaded as accord and satisfaction; and an adjournment over several intermediate days cannot be made on notice to adjourn from day to day. § 20. What is notice to a purchaser of a prior title, so as to affect his purchase in equity. Several cases, Cooper's Pl. 284. § 21. Request to deliver goods not necessary, &c. A agreed to pay B the balance of account "in good West India rum, to be delivered in New Haven, as soon as any should come to his hands, or if none should come, that he would then procure some, and deliver it at the current market price; A held to give B notice when said rum comes to hand, and B need not demand it, but has an action without, after waiting a reasonable time for the rum to arrive, or for other rum to be procured. ART. 12. Since the last continuance. 2 Wils. 137, 139, Paris § 1. The plea of matters since the last continuance of . Salkheld. the action, is in bar or abatement, and differs from other -Yelv. 141. pleas only in this, to wit, the fact which warrants this plea first exists or happens since the last, and before the next continuance; as in this case, the deft., after venire facias issued, and after the last continuance thereon, &c., pleaded generally, that since the last continuance, to wit, on he became a bankrupt, and that the cause of action accrued before such time as he became a bankrupt; hoc paratus, &c.; and verified his plea by affidavit. Held, the court was bound to receive this plea; and whether good or bad, can only be determined on demurrer; as it is like any other plea, with the above difference as to time; and if bad, final judgment is given against the deft. 1 Com. D. 93, Broome v. Burdly. Also 3 Caines' R. 172. 3D.&E.554, Lovell v. Eastaff. § 2. In this case, after verdict against the deft., he obtained a rule for a new trial, which was discharged after argument. He then pleaded, puis darrein continuance entitled of the term generally; and the court refused to order a special memorandum of the day when it was filed, under these circumstances, (because properly delayed until the motion for |