¶1Zachary Taylor Lawrence, having been indicted by the name of Zachariah Lawrence, at the spring term, 1877, of the Circuit Court of Cherokee county, for selling spirituous liquors without a license, was in July afterwards, arrested — and gave bail to appear at the next term thereafter of the court, to answer the charge. He accordingly then appeared and pleaded in abatement the misnomer. Whereupon, the' solicitor moved to take the plea from the file, because, as was alleged it was not filed in time, did not crave oyer of the indictment, and did not contain sufficient substance, the two names Zachariah and Zachary being idem sonans; and the court ordered the plea to be taken from the file.
¶2If this was done because the plea was not filed during the term at which the indictment was found, the court erred in making the order. Until the party had been informed of the indictment, he could not plead'to it. The second term of the court was the appearance term in this instance; and it was sufficient if the plea was then duly interposed.
¶3In Russell v. The State (33 Ala. 371), commenting on a section of the Code which required the objection, that a grand jury “ were not drawn in the presence of the officers, or a majority of them designated by law,” to be made at the term at which the indictment was found — this court said, in respect to such an objection by a defendant who was then in jail in another county and was not brought to the court: “We will *64not construe the statute as prohibiting peremptorily and absolutely, the making of the objection at a subsequent term. In giving it such a construction, we should, by a blind adherence to the letter, allow it an operation in derogation of common right, and revolting to the sense of justice; we-should make the failure to plead, at a time when the accused was uninformed of the prosecution, or kept away by imprisonment, a waiver of the right to plead.” The plea of misnomer in this cause should not have been excluded for the reason that it was not filed until defendant's appearance term.
¶4Oyer is demandable of an instrument on which an action is founded and of which profert should be made, but which is not set out in full in-the pleading. An indictment is read, of course, to the defendant, or he is furnished with a view or copy of it — as a part of the prosecution against him ; and oyer of an indictment is not needed to enable him to plead that his name is not correctly set forth in it.
¶5The plea in abatement was certainly not deficient in substance. The names, Zaehariah and Zaehary, are not so alike in sound, that it can be said there is not any material difference between them. They are in fact different names ; more-so than Humphrey and Humphreys, in respect to which this court has held that a plea in abatement of misnomer by a person of the former name, was good in a suit brought against him by the latter.
¶6The circuit judge erred in ordering the plea in abatement to be taken from the file. And as the indictment will probably be quashed, in the court below, it is unnecessary to decide the other questions presented for our consideration.
¶7Let the judgment of the Circuit Court be reversed, and the cause be remanded.