It is conceded that the paper on which the defendant is sought to be charged as an indorser, is a foreign bill; consequently, it devolved upon the plaintiff to show that it had been duly protested. A protest is said to be a solemn declaration on behalf of the holder against any loss to be sustained by the non-acceptance, or the non-payment of the bill, as the case may be. “ It is highly important, even if it. be not absolutely essential, in all cases, that a copy of the bill should be prefixed to all protests, with the indorsements thereon, verbatim, whenever practicable, and that the reasons given by the drawee for non-acceptance or non-payment, should also be stated in the protest.” [Story on Bills, & 276.] Chitty, in his treatise on Bills, (9 Am. ed. 363) remarks: “A copy of the bill should, it is said, be pre^ fixed to all protests, with the indorsements transcribed verba-* tim, and with an account of the reason given by the party why he does not honor the bill.” Neither of these learned *286authors refer to any adjudged case; but merely cite, Pothier de Change, n. 135, 145, 148; Pardessus Droit Comm. Art. 419; Code de Comm. 174.

In Bryden v. Taylor, 2 Har. & J. Rep. 396, the court considered that the minutes of the proceedings of a notary public were records under the courtesy of nations; and that a copy under the hand and official seal of the notary was sufficient evidence of the protest of a foreign bill for non-acceptance.

These citations we think do not establish that a protest is so conclusive as evidence, that no extrinsic proof is admissible to aid it, or show its adaptation to the bill. Neither of , the elementary writers whose works we have cited, inform us what are their opinions as to the necessity of making a copy of the bill upon the protest. It is certainly the practice to do so, yet if the copy were omitted, and the protest identified the bill by a description so minute as to leave ho ground for mistake, we should be inclined to hesitate before we would pronounce against it.

In Sterry v. Robinson, 1 Day’s Rep. 11, a bill of exchange was addressed to Josiah R., meaning Joshua R. The court held that the mistake in the bill of the Christian name of the drawee, is immaterial, if the bill be presented to the person intended; and the declaration might alledge the mistake and due presentation. [See also Doug. Rep. 55.] So in Ross, et al. v. Planters’ Bank, 5 Hump. Rep. 335, the notary was permitted to prove at the circuit that in the copy of the note on the back of the protest, he made a mistake of the date— dating it a year in advance of the true time. The notary’s entry of the protest read by him to the jury, had the correct date of the note. The supreme court of Tennessee said, “ similar corrections of the notarial record, furnished as notice .to the parties,.have been often allowed, and are sanctioned by many authorities referred to in the argument. The court in such cases taking care to leave the question properly to the jury as to the identity of the instrument mentioned in the notice with that sued on, and as to whether the parties, notwithstanding such mistake, had substantial notice, as to what security it was intended to fix their liability by the notarial protest actually furnished them.”

*287The case of the Branch Bank at Decatur v. Hodges, 9 Al. Rep. 631, is unlike the present. There, the protest for nonacceptance was unobjectionable, but in the certificate that notices were sent, the name of the second indorser was mistaken ; this it was holden did not vitiate the protest; and even if the mistake was in describing the bill, it would not avail the drawers in an action against them. It was also held that a protest for non-payment, which misdescribed the date of the bill, was inadmissible.

Conceding that a copy of the bill should accompany and make part of the protest, yet a mere literal variance in the spelling of a word, as abhy for abbey, undertood for understood, or a similar slip of the pen, not changing the word to one of different signification, will be overlooked. [3 Stark. Ev. 1587; Alebery v. Walby, 1 Stra. Rep. 229.] So, the mis-spelling of the name of an individual will not vitiate, if the sound be not changed; as where one is Segrave and the other Seagrave. [2 Stra. Rep. 889.]

In the case at bar the notary should have aliedged the presentment of the bill to “ Gamble & Mur rah,” if this was the name of the firm who were intended as the drawees, but he should have copied it literally. Yet a departure in this respect we cannot think would be always fatal. It may be that bills are not always legibly written, and all notaries are not competent to make a fp,c simile ; if trivial mistakes in a word or a name were allowed to exclude a protest, injustice would not unfrequently result.

There are numerous cases in which it has been allowed to look out of the instrument to the circumstances to which its terms either expressly or tacitly refer, or which attend its execution. [3 Phil. Ev. C. & H’s Notes, 1406-7, et post] So it is well settled that a devise, bequest, or grant, shall not fail, or vest in an improper person, in consequence of a misnomer of the party intended to take, where the intention of the testator, or grantor, is expressed in the instrument. For the purpose of effectuating that intention, parol evidence is received. [3 Phil. Ev. 1368 to 1376.] The decisions upon this point are sustained by the maxim, falsa demonstration non nocet.

If h in the name of Murrah be sounded, then it is not *288idem sonans with Murray, but if it be silent, then the pronunciation is the same. Perhaps it would be too much to assume the indentity of the names, yet we cannot avoid the conclusion, that extrinsic proof is admissible to explicate the matter. The dissimilarity of the name is not such as to make it a legal conclusion it is not a case of mis-spelling. It may be, that the bill was intended to be drawn on “ Gamble &. Murrah,” whose names are..really pronounced “Gamble & Murray.” If so, does not the case cited from Day’s Reports show, that the presentment should have been made to these drawees ? Here the suit was commenced by notice, and a motion consequent upon it, so that the plaintiff could not al-ledge upon the record the mistake in the address of the bill, ■yet it was competent for him to prove, what was necessary to have alledged and proved if suit had been brought in the ordinary manner, and a declaration filed in the usual form.

The resemblance of the names of the drawees, as written upon the face of the bill, and in the protest, is such, that it cannot be assumed, that the bill produced by the plaintiffs is not the one to which the protest was intended to apply; especially, as in all other respects there is a literal agreement. So that, although the protest, unaided by other testimony, may have been insufficient, yet the court should not have rejected it as altogether irrelevant. Upon its being admitted, the plaintiff might have shown, that 1 Murrah’ was pronounced as ‘ Murraythat there was no such house in New Orleans as the address of the bill indicated; that ‘ Gamble & Murrah’ were the factors, or correspondents of the drawer in that city ; that he was in the habit of drawing on them; that ‘Murrah’ was sometimes written ‘Murray,’ by persons who were not accurate spellers, &c. Such proof would of course follow, and could not precede the introduction of the protest; and as it would be addressed to the jury, the court should have admitted the protest, that the plaintiff might, if practicable, have supplied its defects. [1 Ala. R. 83.]

What we have said, will sufficiently show the error of the ruling of the circuit court. Its judgment is therefore reversed, and the cause remanded.