1.” The general rule is, that a lulling sustaining or overruling a demurrer will not оn error be revised, unless the demurrer appear of record. — 3 Brick. Dig. 405, § 13.
In this case, the minute entry shows, that demurrer tо the affidavit and warrant was overruled. What that demurrer wаs, appears in the bill of exceptions alonе. In this state of the case, it was incumbent on the. defendаnt complaining on appeal of the ruling of the сourt on the demurrer, to affirmatively show error. The affidаvit on which the defendant was proceeded against, appears on examination to be in acсordance with the statute in such cases, was not. defective on its face (Code, § 4751), and was not liable to dеmurrer on any good ground. The ruling on demurrer must, therefore, bе affirmed.
2. The statute authorizes a defendant, on Avhom а fine is imposed on conviction for a misdemeanor, to execute in open court a Avritten contract, approved in Avriting by the judge of the court, Avliereby, in consideration of another becoming his surety on a сonfession of judgment for the fine and costs, to do an аct or perform any sendee for such person, аfter being released on such confession of judgment, еtc.
The State introduced in evidence against the оbjection of defendant his contract Avith the prosеcutor, M. J. OAvens, — the objections of defendant being, that thе affidavit “charges defendant Avith failing to perform his cоntract Avith' surety confessing tire judgment Avith fine and costs, and the contract shoAvs that Owens only confessed judgment with the defеndant for costs;” and, “because the contract sIioavs on its face, that (hvens confessed judgment Avith the defendant for costs only and. not "for the fine and. costs as rеquired by the statute.”
The contract sought to be introducеd shows, that judgment had been rendered against defendant in a misdemeanor case, for $20, and costs, amounting togеther to $48.85, and that a judgment was confessed by defendant and said OAvens for the costs only.
The affidavit for arrest recites, that said Owens became the surety for defendant on a confessed judgment for fine and, easts in the misdemeanor casе, in consider-ration of which defendant agreed to dо farm Avork for said OAvens. The contract sought to be introduсed, showed that said confessed judgment was not for the fine and costs in the misdemeanor case, but for the costs alоne. It thus appears the affidavit, constituting the complaint on Avhicli defendant was tried, and which it was incumbent on the State to prove, recited that the judgment confеssed was for fine and, costs in the case referred to, and the contract offered by the State to prove it, showed thаt it Avas for costs alone, that the judgment was confessed. There was, therefore, a variance in the allegations of the complaint, and the proof offered to sustain it, and the court erred in allowing the contract to be introduced.
It is unnecessary to consider any other- question raised.
Reversed and remanded.