majority">GLOPTON, J.

The constituents of the offense for which defendant was convicted, as described by the statute, are: first, a fine imposed on conviction for a misdemeanor; second, a written contract entered into by the accused, whereby, in consideration of another becoming his surety on a confession of judgment for the fine and costs, he agrees to do any act, or perform any service for such person; third, signing the contract in open court, its approval in writing by the judge of the court in which the conviction was had, and being filed for record in the office of the judge of probate of the county; and, fourth, a failure or refusal to do the act or perform the service as contracted. — Code, § 3832. It is true that the failure or refusal will be free from criminality, if there be a good and sufficient excuse; but this exception constitutes no part of the definition or description of the offense, is matter of defense, and need not be negatived by averment. — Britton v. State, 77 Ala. 202.

When this case was formerly before the court (88 Ala. 230), the grounds of demurrer then presented and considered were, that the indictment did not use, in the description of the offense, the statutory words “without a good and sufficient excuse,” and failed to allege that defendant was released on the confession of judgment. It was correctly ruled, that there was no error in overruling these specified grounds of demurrer. After the remandment of the case, additional causes of demurrer were assigned, which are, that the indictment does not allege that the contract was signed in open court, or that it was approved in writing by the judge. The overruling of these grounds of demurrer brings for consideration the sufficiency of the indictment in these respects.

The statute creating a new offense, unknown to the common law, and describing its constituents, an indictment *52under it must comform substantially to tbe statutory description, and aver all tbe material and essential constituents of tbe criminal act. Comparing tbe averments with tbe statutory description, the indictment will be found defective in several respects. It fails to allege, except inferentially, that a fine was imposed, or that tbe contract was signed in open court, or that it was approved in writing by tbe judge of tbe court in which tbe conviction was bad, or any description of tbe act or service which defendant agreed by tbe contract to do or perform. Without averment of these ingredients, tbe indictment charges no criminal offense; for tbe statute does not denounce as criminal tbe failure or refusal to perform service under any contract, not made for tbe purpose, under tbe circumstances, and in tbe manner required by tbe statute. It follows, that tbe cause of demurrer assigned after tbe remandment of tbe ease, except the one that tbe indictment does not allege that defendant was released on tbe confession of judgment, should have been sustained.

It is unnecessary to consider tbe evidence.

Reversed and remanded.

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