delivered the opinion of the court.

This case comes up on a bill of exceptions, taken to the opinion of the judge a quo, by which he refused to admit in evidence the promissory note, on which the action purports to be founded.

The petitioner charges Charles Breux or Brand as the debtor, and the note, on which the suit is brought, is annexed to and made a part of the petition, and appears to have been signed by Charles Braud. The answer contains only a general denial.

On the trial of the cause, the plaintiff offered to prove the signature of the defendant, but as the note itself was rejected on account of error, as to the name of the signer; this testimony was also rejected, and a judgment of non suit rendered, from which the plaintiff appealed.

In support of the correctness of the judgment of the court below, we are referred to a decision to be found in 11 Martin, p. 547, which would perhaps justify the pretentions of the appellee, were it not for a very important difference in the feature of that case from the present. In the former, the instrument declared on was not anexed to the petition, or in any manner made a part of it; nothing appeared t© put the defendant on his guard against the discussion between the allegation and the proof offered.

In the case now under consideration, the promissory note itself being annexed to, and made a part of the petition, is *142sufficient to correct any error in spelling the name of the defendant. By. this means, it is in fact a suit against Charles ^ ' ° Breux, the signer of the note. He might probably have pleaded the misnomer in abatement; but as he chose to answer generally to the action under the double appellants Braud or Brand and Breux, both being stated in the petition, in consequence of the annexation of the note, he ought to be considered as having answered m his true name, and the note as annexed should have been received in evidence, under proper proof or admissions, &c. x x x

It is, therefore, ordered, adjudged and decreed, that the 7 J o " judgment of the District Court be avoided, reversed and annulled; and is further ordered that this case be remanded to said court, to be proceeded in according to law. The appellee to pay the costs of this appeal.