¶1On the 24th of November, 1882, Henry Biehl brought suit against Margaret Bruder and John Bruder before a magistrate to recover $114.75, due on settlement from Margaret before she married John. The action was a joint one against both husband and wife.
¶2It appears the parties were duly summoned, and Margaret made defense. She first filed a demurrer, which was over*86ruled, and then a motion to dismiss on the ground that the liability was not upon any contract which she, as a married woman, was authorized to make. This motion was overruled. A trial was then regularly had, Biehl and Margaret both examined as witnesses, and judgment rendered for the plaintiff.
¶3The Bruders then prosecuted a petition in error to the common pleas court to reverse judgment, and afterward filed an amendment to the petition in error, alleging certain errors of fact, among them that Margaret was a married woman when the debt was contracted, and that it was not her debt but that of her former husband.
¶4A demurrer was filed to this amendment, which was sustained, and the magistrate’s judgment was affirmed. This petition in error is to reverse the common pleas.
¶51. It was not error for the justice to overrule the demurrer to the plaintiff’s bill of particulars. There is no authority for filing a demurrer before a justice of the peace. A bill of particulars is not required to state a cause of action with the accuracy of a petition, but simply to state the nature of the claim in general terms, which the plaintiff’s bill of particulars sufficiently did.
¶62. There was no error in overruling the motion to dismiss. The motion called for an examination of the facts relating to Margaret’s liability which could only be properly1 made on the trial — and a hearing of the motion on the evidence would be a trial of the action.
¶73. No bill of exceptions was taken, the transcript on its face shows that the proceedings of the justice of the peace were regular. Every presumption will be made in favor of the judgment. It will therefore be presumed that every fact necessary to establish the liability of the defendants was properly proven before the magistrate' — and upon a proper state of facts a joint action may be maintained against husband and wife on the antenuptial contract of the. wife. The statute then in force recognized such right of action. Sec. 3110 Swans New Treat., 593; 31 O. S. R., 546; 25 O. S. R., 500.
¶8It is true the statute was changed in 1884 so as to make the husband liable for the antenuptial contracts of his wife, to the extent only that he received her separate estate.
¶9But the law in force at the time the debt was contracted must govern the wife’s liability, and the law in force at the time of the marriage fixes that of the husband, both of which were before the act of 1884.
¶10The justice did not err, therefore, in rendering a joint judgment against the husband and wife.
¶114. The sustaining of the demurrer to the amended petition in error by the common pleas court was immaterial and not prejudicial. The question still remained whether the common pleas court erred in affirming the judgment upon the whole case made by the original and the amended petition in error. The purpose of the amendment was to have a re-trial in the common pleas of the facts relating to the liability of the defendants upon the evidence as upon an appeal.
¶12No such right exists under a petition in error in any form.
¶13Under our present system of legislation, which specifically provides for appeals to the common pleas where pleadings of fact are to be filed and a re-trial had upon the facts, as if it had original jurisdiction, and also provides for excepting to any ruling of the justice and to take bills of exceptions before him, so as to preserve every error properly on his record, and for proceedings by petition in error, to review his record in such cases, it can not be allowed that after the party has had and exercised his election not to appeal, but to prosecute error, he shall convert his petition in error to a pleading of fact to retry the same matter on the evidence which he tried before the magistrate, and from which he took no appeal.
¶14Judgment affirmed with costs — no penalty.