Heydenfeldt, Justice, delivered the opinion of the court. Murray, Chief Justice, concurred. The declaration cannot maintain the judgment. The count is for money loaned, but the recital of facts, which it contains, shows that the plaintiff for the money advanced became the purchaser of the draft, and for aught that appears to the contrary, is still the holder of it. The suit should therefore have been upon the draft, which, it seems, is yet an outstanding liability of the defendants.
The plaintiff, in order to recover in the present form of his action, must allege and prove that after paying the draft, he cancelled it, and delivered it up to the defendants. Without this the declaration is fatally defective. Judgment reversed, and cause remanded. A petition was presented to the court for a rehearing in this case, and it was ordered, December 13, 1853, “ that all proceedings be stayed until the same can be heard and determined on,”