*211The opinion of the court was delivered by

Action on recognizance. Demurrer to peti-' tion was sustained, and this ruling is the alleged error. The petition alleges in substance, the filing of an information against Crissy, his appearance in court, entering into a recognizance, (a copy of which is given,) the filing of the recognizance, Crissy’s failure to appear at the next term, and the forfeiture of the recognizance. It is not claimed by the attorney general that this petition was sufficient under the rules of common-law pleading, but it is insisted that under the liberal provisions of section 154 of the code of criminal procedure, (Gen. Stat. 844,) it must be held to be-sufficient. But we think under that section there is .still a fatal omission. That section provides that no action upon a recognizance shall be defeated on account of any irregularities, omission, etc., “ so that it be made to appear, that the defendant was legally in custody, charged with a public offense, that he was discharged therefrom by reason of the giving of the recognizance,” etc. Now this last matter does not appear from the petition. It does not follow, from the mere giving of a recognizance, that the accused was discharged from custody by reason thereof, or indeed that he was discharged at all. For all this petition discloses, the accused may never have been discharged from custody, and the reason why he did not appear was because he was confined by the sheriff in the jail, and could not come to the court-house. Where a party relies upon the liberal provisions of this section to sustain his pleading, he must make all the matters named therein clearly appear, or his pleading will, on demurrer, be held insufficient.

The ruling of the district court will be affirmed.