Samuel Wiggins v. Covington & Cincinnati Bridge Company. the property, to be applied against the rent to accrue under the contract, and that without reference to the payment of said sum of $10,000. Had there been no obstacle in the way of a conveyanee, defendant might have called on plaintiff for an immediate conveyance of the premises, without waiting the sixty days, and making payment of the $10,000; or, on the other hand, had such convenience not existed, defendant might have been called upon for this, or any other payment, without such conveyance. The circumstance that the conveyance was to bear date, the first of August, did not require it to be actually executed on or before that day. It merely indicated the time from which the rights and obligations of the parties were to commence. But if it had been intended that the conveyance should be made upon that day, it would have been easier to say so, and not refer the matter to the early convenience of the parties. If then, as I regard it, these promises are to be considered as independent, the plaintiff is entitled to recover, notwithstanding a failure, on his part, to perform the contract. Whether this failure has been reasonable or unreasonable, is not material to inquire. If unreasonable, defendant might have rescinded, or may have damages for the injury resulting from the delay; or may now place itself in a position to demand specific performance from the plaintiff. But it can not hold on to all the benefits of the possession, treat the contract as subsisting and in full force, and at the same time refuse to perform the obligations it imposes on the company. Let judgment be entered for plaintiff for the rent in arrear and unpaid. Charles Wilson v. Giovanni Ferrari. CHARLES WILSON 2. GIOVANNI FERRARI. 1. A motion will not be entertained, to strike from an answer the statements of fact, alleged as probable cause, in defense of an action for malicious prosecution. 2. In such case, a demurrer would lie, if the facts as stated did not constitute a probable cause. SPECIAL TERM.-The action was to recover damages for a malicious prosecution of the plaintiff, in the police court of Cincinnati, on a charge of larceny, made by the defendant. The answer set out, in detail, the facts and circumstances under which the charge had been made, and claimed that they constituted probable cause, which was the defense to the acion. A motion was made to strike out that part of the answer stating the facts, leaving only the conclusion that there was probable cause. Parker & Parker, for plaintiff. T. A. Logan and E. P. Norton, for defendant. GHOLSON, J. It was proper to state the facts, so that the court might determine whether they would constitute probable cause or not; if the facts as stated would not constitute probable cause, and were therefore irrelevant, the proper course would be to demur to the answer. The motion to strike out is therefore overruled. E. B. Dennison v. C. T. Jessup. E. B. DENNISON v. C. T. Jessup. 1. The taking of a note as payment of a precedent debt, or upon any new consideration passing at the time, as extending time of payment, is a sufficient consideration to protect the assignee, being a holder for value, bona fide, and without notice. 2. When the note is dated by mistake in 1855, when its true date is 1856, and when received by the holder is apparently overdue, but not in fact so, his title being otherwise perfect, is not, on this account, subject to the equities between the original parties. SPECIAL TERM.-This is an action brought by the plaintiff as indorsee and holder of a promissory note for $350, made by the defendant, payable to the order of W. D. Ludlow, and indorsed by him, for accommodation of the defendant, to S. R. Smith, who indorsed it and delivered it to Horace Bronson, who transferred it to plaintiff. It is admitted that the plaintiff is entitled to judgment, unless the facts set up by way of defense are an answer to the action. The facts are these: The note bears date the first day of January, 1855, and is payable six months after date. It was made in fact, and delivered to Smith, on the first day of January, 1856, but dated as of 1855 by mistake. The note was given upon an agreement between Jessup and Smith, that the latter should compromise and discharge a prosecution for felony, instituted by Smith against Jessup, and for no other consideration. It was transferred by Smith to one Bronson, and the consideration of such transfer having failed, it should have been returned. The defendant, however, gave another note for the same amount to Smith, instead thereof, which has been paid. In January, 1856, before the true time of payment had elapsed, Bronson being indebted to the plaintiff in a certain sum of money for boarding, transferred the note to him, upon an agreement that the plaintiff should collect the same, and after deducting the amount due him, and paying thereout such sum as should thereafter become due to plaintiff on like account, the E. B. Dennison v. C. T. Jessup. balance, if any, was to be paid to Bronson. In consideration of the assignment, the plaintiff forbore to press Bronson for immediate payment, and allowed his debt to accumulate. The amount of the plaintiff's claim against Bronson, with interest to this time, is $379.75, being a little short of the sum due on the note. At the time of receiving the note, the plaintiff, perceiving it was apparently overdue, inquired of Bronson in regard to it, and was assured by him of the mistake in the date, and the manner of its occurrence. He called with Bronson at the defendant's place of business, to make further inquiry, but not finding him in, consented to take the note upon Bronson's assurance, but without any knowledge or suspicion that Bronson was not a bona fide holder, or that there was any defect or failure in the consideration of the note. Thos. C. Ware, for plaintiff. T. A. O'Connor, A. H. McGuffey and Mills & Hoadly, for defendant. SPENCER, J. There is no doubt that the illegality in the consideration of the note renders it void as between the original parties, and the only question to be decided is whether, as the note was negotiable and negotiated before its actual maturity, the plaintiff, as an innocent holder for value, in the usual course of business, is affected by the illegality, or want of consideration. So far as the consideration of the transfer to the plaintiff is concerned, there seems to be no doubt that the plaintiff is a purchaser for value, and, in the usual course of business, within the principle of the decisions heretofore made by this court, and sustained by the Supreme Court in the late case 6 Ohio, St. 448, Roxborough v. Messick. The taking of a note as payment of a precedent debt, or upon any new consideration passing at the time, as extending time of payment, is a sufficient consideration for the transfer, to protect the assignee as a holder for value. Here E. B. Dennison r. C. T. Jessup. it is in proof that the note was taken, in fact, in payment of a debt then due from Bronson to plaintiff, the collection of which plaintiff forebore, and, in fact, in security for further credit to be given by plaintiff to Bronson, on account of board, and which credit was, in fact, given. The chief, indeed we may say, the sole ground of defense relied upon, in this connection, is, that inasmuch as the note by its terms was overdue, at the time of the transfer, it was not a note transferable as commercial paper, and therefore the plaintiff is not entitled to protection under the commercial rule; or to express the rule in a different form, that the note, when first shown to the plaintiff, was by its terms already dishonored, and therefore, the plaintiff was chargeable with notice that there was some just cause for such dishonor, and being thus put upon inquiry, which he has failed to make, can not set up his ignorance of the facts as evidence of good faith. It seems to me, that the principle upon which the rule is founded, that the dishonor of commercial paper carries notice to subsequent parties of the equities existing between the original parties, does not properly apply to a case like the present. That principle is founded upon the notion of commercial integrity,—that a party would not fail to comply with his obligation unless there was some just excuse for so doing. But when it is clear that the note is not in fact due, and that, therefore, there is no dishonor, the inference is at once rebutted, which arises from dishonor, and the party has a right to presume that the note will be paid according to its intent. In the first case, the party can not be said to rely upon a promise already broken; in the latter, he relies upon a promise as yet in full force and inviolate. It is the dishonor in fact which puts the world upon inquiry, not the mistaken appearance of dishonor. The authority relied upon in argument by the plaintiff's counsel, will warrant the distinction here presented, i. e., when a note is shown to have a genuine existence, although by its face the time has not arrived, when its apparent existence |