— The note should have been excluded from the jury, as the contract offered in evidence is different in its legal effect, from that described in the declaration.
It is true, that in either case the maker of such notes is bound generally, and he is not discharged in the case of the one payable in Bank, by the omission to present it at the place where the payment is to be made; but the distinction between the contracts evidenced by the notes, is, in the case of the note payable in Bank; if the maker had funds- at the particular place, at the day, he is authorized to show this fact in his de-fence, in a plea of tender; his contract, therefore, is not the same, as when he contracts to pay absolutely, and wherever the note may be presented to them.
Let the judgment be reversed and the case remanded.