
    *Gardner Lathrop and wife v. David T. Snellbaker.
    Where a justice of the peace neglects to write out an appeal bond over the name of the surety signed in blank on his docket, and in a transcript from the same, the bond falsely purports to have been written out in time, whereby the plaintiffs fail in their action against the surety, the statute of limitations begins to run from the date of the negligence, and not from the time when the plaintiffs acquired knowledge of it.
    Whether such a state of facts, thus set up in the petition against the magistrate, is a sufficient allegation of fraud — qucere.
    The cases of Kerns v. Schoonmaker, 4 Ohio, 331, and Fee’s Administrator v. Fee, 10 Ohio, 469, followed.
    Error to the Superior Court of Cincinnati:
    The plaintiffs in error, who were the plaintiffs below, filed their petition in the Superior Court of Cincinnati against the defendant in error, who was the defendant below, stating “ that on the 10th day of January, a. d. 1850, the said defendant was an acting justice of the peace in and for the township of Cincinnati, county of Hamilton, and State of Ohio, duly commissioned and sworn; that on said- day the plaintiffs recovered a judgment before said defendant, as such justice of the peace, against Joseph Dupler, for the sum of 181.12 damages, and $9.25 costs; that from said judgment said Dupler attempted to take an appeal to the court of common pleas, of said county, and offered as security for that purpose one David Ichler, who signed his name on the docket of said justice; that said justice made a transcript of his proceedings and judgment in said cause, including what purports to be a copy of the bond of said. Ichler taken by said justice. That the transcript aforesaid was filed by said Dupler in the court of common pleas on the 4th day of February, 1850; that at the November term, 1850, of said court, the 277] ^plaintiffs recovered a judgment on said transcript against, said Dupler for the sum of ninety dollars damages, together with costs. On which said judgment an execution was issued to the sheriff of said county, and returned, ‘ no goods or chattels, lands or tenements,’ etc. That afterward, on the 9th day of November, 1854, the plaintiffs commenced an action before William Chidsey, a. justice of the peace in and for said township and county, against the said David Ichler, as security, as aforesaid; and on the trial of the said last-mentioned case, it was proven in evidence that, although said Ichler had signed his name on the docket of said Justice Snell-baker, the latter had failed to write out the bond, which in his-aforesaid transcript he purports to have copied; so that, in fact, no bond was taken by said Snellbaker in the case wherein these plaintiffs sued Joseph Dupler, as aforesaid. And for the last-mentioned cause, said Justice Chidsey rendered a judgment for said Ichleragainst these plaintiffs for costs, amounting to 11.50. That the neglect or omission of duty by said Snellbaker, as aforesaid, was not discovered by or known to the plaintiffs until the said trial before-Justice Chidsey. And the plaintiffs represent that the said Ichler is solvent, and responsible for the amount for which he intended to-become security, as aforesaid; and that by reason of the neglect and omission of said Snellbaker to draw up a bond, as by law he was required to do .in such case, these plaintiffs are prevented from recovering their claim against said Dupler and Ichler.
    “ Whereupon they ask judgment against the defendant for the-amount of the judgment in the common pleas, and costs before said Justice Chidsey, with interest,” etc.
    To this petition Snellbaker made answer “ that the’cause of actiou mentioned in the said petition did not accrue within one year be-278] fore the commencement of the *said action, and that the said-cause of action is barred by the statute-of limitations,” etc.
    At the April term, 1855, of said Superior Court, the cause came ■on to be heard upon petition and answer, and the court, to whom the issue joined was submitted, found for the.defendant, and had judgment entered against the plaintiffs for costs.
    Upon the record showing this state of facts the plaintiffs assign .for error, “ That the judgment of the said court was for the said defendant, when by law it should have been for the plaintiffs on the issue pretended to be made by the answer in said cause, the said .answer being insufficient in law to bar the plaintiff’s action.”
    
      W. W. Warden, and Warden & Bankin, for the plaintiffs in error.
    
      R .B. Warden
    
    cited Angell on Limitations, sections 3-11, 184, 186, 191, 298, 301, and made an oral argument for plaintiffs in error.
    
      Tilden, Rairden & Curwen, for the defendant in error,
    cited Kerns v. Schoonmaker, 4 Ohio, 331; Fee v. Fee, 10 Ohio, 469.
   Brinkerhoff, J.

The statute of limitations here properly relied •on, is that of the 18th of February, 1831. A majority of the court, are of opinion that this case is in effect decided by the cases of Kerns v. Schoonmaker, 4 Ohio, 331, and Fee’s Administrator v. Fee, 10 Ohio, 469. We are aware there are conflicting opinions as to ■the soundness of the doctrine declared in the latter case, but we are not now- disposed to review it, even if the fraud relied on in argument to take the case out of the operation of the statute can be held to be sufficiently alleged, which is, at least, very doubtful; and especially as the new statute *of limitations, embodied in the [279 •code of civil procedure, has materially modified the rule as settled in that case, which therefore can be applied to but a remnant of a class of cases remaining to be determined under the old statute. We think therefore that the judgment ought to be affirmed.

Judgment accordingly.

Swan, Bowen, and Scott, JJ\, concurred.

Bartlet, C. J., dissented.  