It is very clear, that, upon the facts stated, the plaintiff is not entitled to recover, upon the first count. The allegation, in that count, that the order was presented for payment, must be proved, in order to sustain it, and the want of proof, of that fact, cannot be supplied by proof of any excuse for not presenting it for payment. Chitty on bills, 355 and 374 ; Baylcy on bills, ÍS81&emdash;283.
i3n~t the order ~mport~, upon the face of it, ~o have
And, as soon as the intestate revoked the order, it seems to us, that the plaintiffhad a right to consider that at an end, and was entitled to demand, and receive from the intestate, whatever he had paid for it.
And, whatever may have been the nature of the consideration, upon which the order was founded, we think the count, for money had and received, may be sustained. 8 Cowen, 77, Hughes v. Wheeler.
The nonsuit must, therefore, be set aside, and the emm stand' for (rial.