Lathrop v. Snellbaker ( 1856 )

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.