¶1delivered the opinion of the Court.
¶2The note, being payable at St. Louis, and not so described in the declaration,, cannot be given in evidence upon either of the counts upon the note. There is a substantial difference between the note produced and the note described in the declaration. The plaintiffs were not bound to receive the money at any other place than St. Louis, nor were the defendants bound to pay it at any other place, until they had failed , to pay it at St. Louis, according to the terms of the contract. There is, therefore, a material variance between the note produced and the counts founded upon it.
¶3See the following cases : Sheehy v. Mandeville, 7 Cranch, 208; Ferguson v. Harwood, lb. 408; United States v. McNeal, 1 Gall. 387; Pope et al. v. Barrett, 1 Mason, 117; Munns v. Dupont et al. 2 Wash. C. C. Rep. 465; Trask v. Duvall, C. C. U. S. Ap. *121821, MS. Coxe’s Dig. 729; Smith v. Barker, 3 Day, 312; Page's Administrator v. Bank of Alexandria, 7 Wheat. 35.
¶4But there is a count for money had and received, upon which the note is evidence, especially as the suit is between the original parties to the note, that is, the payees against the maker. Harris v. Huntbach, 1 Burr. 373; Chitty on Bills, 1st Ed. 191, part 2, ch. 2.
¶5This case differs from that of Hyer & Burdett v. Smith, in this Court, at May term, 1829. (3 Cranch, C. C.) In that case, there was not, at the time of the arrest of the defendant, any count in the declaration sent with the writ, upon -which the bill of exchange would have been evidence. But here is a count for money had and received, which, we think, may be supported by the note. In that case the question arose upon an amendment made by the plaintiff, and which he was obliged to make, to let in the bill of exchange as evidence upon either of the counts.. The count upon the bill averred it to be indorsed to the plaintiffs, Hyer & Burdett, but the bill offered in evidence, was indorsed to Hyer,,Burdett, and Bremner. This objection was as fatal upon the money counts as upon the count on the bill, for it was evidence of money had and received, to the use of three, when there were only two plaintiffs; the amendment, therefore, introduced a new cause of action. But here the question is not whether the plaintiff shall amend his declaration, but whether the note is evidence upon the count for money had and received.
¶6If the plaintiff should ask leave to amend his declaration, and he should amend it, it may be a subsequent question whether the bail shall be discharged.
¶7Motion to appear without bail, overruled.