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first holder for value, we still think the plaintiffs are entitled to recover upon the facts found.
It is not claimed by the defendant that the contract of guaranty could not, under any circumstances, be either legally or equitably assigned by Sherman to Lemmon. The claim is, that, as matter of law on the facts found, the guaranty was not assigned legally or equitably, under and by virtue of what took place between Sherman and Lemmon relating to the assignment of the note.
The consideration of this claim involves two questions, namely: Did Sherman and Lemmon intend, by what took place between them relative to the sale and purchase of the note, the assignment, legally and equitably, of the guaranty as well as that of the note? And did they carry that intent into effect? Let us consider these questions in the order stated.
At the time of the transaction in question, the guaranty was practically the only thing that gave the note any value in Sherman's hands. The maker was insolvent, and could not pay it. The defendant was abundantly able to pay it. These facts were known to both parties at the time, and in view of this knowledge the transaction took place. Separated from the guaranty the note had little pecuniary value, and apart from the ownership of the note the guaranty had but little meaning or value. They belonged together, on the samo paper, and were treated by all concerned as forming one instrument for the recovery of the amount due on the note. The parties each knew that if Sherman assigned the note alone it would be worthless in Lemmon's hands, and that the retention of his rights under the guaranty could in that event do Sherman no good.
Under these circumstances, Lemmon offers to purchase and Sherman agrees to sell the instrument in question for three hundred dollars, being nearly the full amount due on the note. The money is paid, the indorsement is made, and the instrument is delivered to Lemmon. We think there can be no doubt about Lemmon's intention. He certainly supposed he was getting all the rights which Sherman had under both contracts, or he never would have paid his money. And as to Sherman's intention there can be just as little doubt. He was acting in good faith, as the court finds. He must have known what Lemmon expected, and if he did not intend to give him the benefit of the guaranty, should have made such intention manifest. If Sherman intended to limit the operation of the
transaction to the assignment of the note proper, he could easily have dono so by appropriate worda. The defendant says that Sherman in his assignment uses the words " this note," and that these words "seem to restriot the transfer to the note, and exclude the guaranty." Read in the light of all the surrounding circumstances, this is not of much significance, These parties undoubtedly regarded the paper containing both contracts as one instrument, and probably used the word “note" as descriptive of the paper and all that was written upon it. To suppose that under the circumstances they intended the effect which the defendant claims resulted from this transaction, is to suppose that Sherman was a knave and Lemmon a fool, and for neither of these suppositions does the record afford the slightest ground. We feel bound to hold, therefore, that these parties, as honest men of average intelligence, intended the assignment of the guaranty as well as the assignment of the note.
The next question is, whether in doing what they did they carried out this intent.
The defendant says that no special assignment of the guar anty is claimed by the plaintiffs or found by the court, and if by this is meant that the contract of guaranty is not specifically mentioned or described in Sherman's indorsement, this is true.
Is such a specific assignment necessary under the circumstances? We know of no law which prescribes the form in which the intention of the parties in each cases shall be embodied; and where the law prescribes no form, it will, to ao complish rather than defeat their intent, give effect to such form as they choose to adopt.
Now, in the case at bar, Sherman takes the paper containing both contracts, and writes an assignment upon it, and dem livers it to Lemmon, intending thereby to transfer to him, as we have seen, all the beneficial interest in both contracts which Sherman himself then possessed. Why is not this effectual to pass such interest, at least in equity?
Sherman fully intended and Lemmon fully expeoted such a result; and independently of Sherman's intent, his language and acts should be interpreted in the sense in which he had reason to suppose Lemmon understood them.
The contract and acts of Sherman in this matter should be construed with reference to all the surrounding circumstance,
the controlling consideration being to discover and give effect to the mutual intention of the parties.
Such an equitable assignment could certainly be made by a transaction of this kind if so intended. “In any case of the guaranty of a bill or note, the party to whom the guar anty is originally made may, in equity, assign his right to the holder at the time he transfers the bill or note, and thereby vest in him the equitable, although not the legal, title thereto: 2 Daniel on Negotiable Instruments, sec. 1774. Indeed, it is unnecessary to cite authorities upon such a point. No special form of words and no prescribed acts are necessary to constitute an equitable assignment. The delivery of a negotiable note without indorsement may operate as an assignment of it in equity: Jones v. Witter, 13 Mass. 304. The transfer of a debt or obligation usually carries with it as an incident all the securities for its payment, although such securities are not in terms transferred with the principal obligations: Craig v. Par kis, 40 N. Y. 181; 100 Am. Dec. 469. In a Virginia case, the court uses the following language: “If the contract of guaranty is not negotiable at law, along with the bond and coupons, it is assignable in equity, and an interest in it passes in equity to each successive holder of the bond or coupon.
In order to give effect to the manifest intention of the parties, the right to enforce the guaranty, unless lost by laches or otherwise, must be held co-extensive with the right to enforce a bond or coupon. The guaranty as an accessory to the bond or coupon follows it and adheres to it in equity, and the right to enforce the guaranty must be determined by the right to demand payment of the bond or coupon ": Aronto v. Commonwealth, 18 Gratt. 768.
We think this language is quite applicable to the case at bar. We hold, therefore, that Sherman assigned in equity to Lemmon all the beneficial interest which the latter had in the contract of guaranty, and so Lemmon became the equitable and bona fide holder thereof, and as such was entitled to sue in his own name under our statutes. The defendant bas cited no case which is inconsistent with this conclusion.
There is no error in the judgment of the court below.
NEGOTIABLE INSTRUMENTS — GUARANTY. — A valid contract of guaranty Indorsed apon a writing obligatory passos by assignment to the assignos, and vests in him a right of action in his own name against the guarantor: Killian 5. Ashley, 24 Ark. 611; 91 Am. Dec. 519. Compare Smith v. Dickinson, 6 Humph. 261; 44 Am. Dec. 306, and particularly note.
IN BB CLAYTON.
(60 CONNECTICUT, 610 ) CONSTITUTIONAL LAW - INTOXICATING LIQUOR, STATUTI COMPELLING Dis
CLOSURE OF PERSON FROM Whom PROCURKD. - A statute requiring defendant, after conviction of intoxication, to disclose, “under oath, when, where, how, and from whom he procured the liquor by which bis intoxioation was produced," and providing that upon his refusal to make such disclosure “it shall be the daty of the magistrate before whom such trial is had to commit the accused for contempt of court," is not unconstitutional as being contrary to public policy and natural justice, nor as depriving the accused of the right to a trial by jury, nor as depriving him of liberty without due process of law, nor as denying him the oqual protection of tho laws, nor as making that a contempt of court by stat uto which is not proper matter for contempto G. P. McLean and A. Brainard, for the appellant W. Hamersley and F. H. Parker, for the appellee.
CARPENTER, J. The complainant was convicted of intoxication, and was required to disclose, under the act of 1889, chapter 167, “under oath, when, where, how, and from whom, he procured the liquor by which his intoxication was produced.” He refused “to make such disclosure." Thereupon the magistrate (the judge of the police court of Hartford) before whom the trial was had proceeded “to commit the accused, for contempt of court, to the common jail” for ten days.
On a writ of habeas corpus he was brought before a judge of the superior court. The sheriff's return set out the proceedings in the police court, and the mittimus issued thereon. The complainant demurred to the return, because, he says, the statute under which the proceedings were had is obnox. ious to constitutional provisions. The judge overruled the demurrer, and the complainant appealed.
Provisions for disclosures by persons found intoxicated, or arrested for intoxication, first appeared in the statute of 1854, and have since remained there, with some changes from time to time. Until 1889 disclosures were at the option of the prisoner, and could only be made before conviction; and upon being fairly made, they contemplated the discharge of the intoxicated person. The statute of 1889 made a radical change. It provides for disclosures only after conviction, does not discharge the prisoner, and the disclosure is made compulsory. Whether this act is a substitute for the statute previously ex. isting, or is in addition thereto, is not now a material question.
The first ground of demurrer is, that the statute “is a deprivation of the right to a trial by jury, as provided by section 21 of article 1 of the constitution of Connecticut."
This objection misconceives the nature and character of the proceeding before the police court. The appellant was not then before the court as a defendant in a criminal prosecu. tion. That had been his position; but upon his conviction that was changed, and he became, so far as this case is concerned, merely a witness. He was in no pense on trial, - no one was, – and therefore was not in jeopardy. The proceeding was not judicial, but ministerial.
For more than a century and a half we have had upon the statute-book a law authorizing the grand jurors in the several towns to meet and advise, and inquire into the offenses that had been committed, with power to summon and examine witnesses, and if need be, to punish for contempt: Gen. Stats., sec. 91. This proceeding is but an extension of the same power to other officers, for the same general purpose, namely, the protection of society by preventing crime, through the detection and punishment of offenders.
The magistrate acting in an administrative and not in a judicial capacity, the witness being in no jeopardy and exposed to no detriment provided he testifies fairly, this section of the constitution is not applicable.
The second ground of demurrer is, that “such a commitment on said statute is a deprivation of liberty without due process of law, as forbidden by section 9 of article 1 of the constitution of Connecticut."
Punishment for contempt by a court, or other tribunal duly authorized, is “due process of law” within the meaning of the constitution. The right and duty of the state to protect its jurisdiction and dignity by punishing for contempt, in proper cases, through its officers, is the sacred right of selfdefense.
The third ground of demurrer is, that "the matter made a oontempt of court by the statute is not a proper contempt, and it is incompetent for the legislature to suspend or abrogate the prisoner's constitutional prerogatives by making such refusal a contempt and providing a summary commitment therefor, since the refusal is entirely disconnected with any proceeding pending before the court, and has no relation whatever to the dignity or duty of the court, or to the administration of justice in any present or future case.”
Ax. ST. REP., VOL. XXI.- 9