The opinion of the court was delivered by
Redfield, J.The only exception now insisted upon is in regard to the variance. -As to the person to whom the note is made payable, it is correctly described in the second count; and if one of the counts in an indictment is correct, it is sufficient.
The difference between Herriman and Harriman is unimportant; it is obviously idem sonans, which makes the names the same in law, ■> — for no man is to be acquitted in consequence of bad spelling, merely, in the indictment, if substantially the same sound is preserved. In many names the “e” is sounded like the “a,” — as in most names coming from the continent in Europe. This name is of that character, when spelled with an “ e” in the first syllable.
As to the term found in the note, “ to hade,” whether it is wholly unmeaning, or imports “ to he paid,” is not important, perhaps. For if wholly stricken out, the note is then payable upon the first day of January; — and if these words'have any meaning, they do mean to be paid.
It is true undoubtedly, as insisted, that the averments of the obligation, which the note imported, must not be inconsistent with those which seem to flow from it, as set forth in the hill; otherwise the judgment will be arrested. And therefore, where the averments in the indictment improperly describe the import of the obligation of any contract forged, this defect is not cured by reciting the instrument ’ in hcec verba.
Judgment, that respondent take nothing by his exceptions. Sentence, three years in the state prison.