Barker v. Cory. Dec. Term, ⚫ that the plaintiff in error shall prosecute his writ to effect, and IN BANK. 'pay all costs in error if he fail to make his plea good; and no error shall operate as a supersedeas, to any execution issued 6 on any final judgment of the Court of Common Pleas, &c., ' unless bond and security shall be given, as required in the 104th section of the act, entitled an act to regulate the prac⚫tice of the judicial courts,' passed March 8th, 1831." Hence, these two acts must be construed together. The section referred to in the act of 1831, declares that no supersedeas shall issue, unless bond be given to the adverse party in double the amount of the judgment obtained, conditioned for the payment of the consideration money and costs, if the judgment be affirmed. It has always been held, under the act of 1831, that a bond was only required when the writ of error was to operate as a supersedeas. The act of March 12th, 1845, although not as clearly expressed as it might have been, means nothing more. If it should be held that it did, it would amount to this that two bonds should be given conditioned for the same thing at least as to part of the condition. The bond, to obtain the writ, would require security, as to costs; and the bond, to obtain the supersedeas, would also be conditioned for the payment of the costs. The truth is, the first part of the clause of the act of 1815, requires that a bond should be given; and the latter part of the same clause specifies the kind of bond, to wit: such a bond as the act of 1831 requires, to make the writ of error operate as a supersedeas. Hence it is plain, that a bond and security is only required when it is designed to have a supersedeas. A writ of error may issue without bond, but it only operates as a supersedeas when bond is given. This has been the uniform construction of the statute upon the circuit, and we think it correct. The motion, therefore, to quash the writ is overruled. The errors relied upon are two First That the suit was commenced before the justice as an action ex delicto, and the plaintiff declared, in the Common Pleas, in assumpsit. 1846. IN BANK. Barker v. Cory. Second: That the Court erred in rendering judgment against Dec. Term, the plaintiff below, for the costs accruing against him in the 1846. Court of Common Pleas. As to the first assignment of error: The Justice of the Peace modestly, and rightfully, omits to indicate the form of action; he merely states that, by consent of parties, the cause was entered. The term cause, embraces injuries sounding both in tort and contract, and permits, on appeal, without variance, either form of action, ex delicto or ex contractu to be pursued, as the nature of the injury may require. Treating the transcript as a process, it cannot be complained, in this instance, that the declaration does not pursue the writ, but sets up a new cause of action. Variance, or a departure in the declaration from the form of action adopted in the writ or transcript, is not the error complained of, but that the plaintiff has adopted a wrong form of action, and declared upon a contract when the injury was a tort. The bill of particulars declares the injury to be this: That the plaintiff had delivered a certain number of logs at the mill of the defendant, to have them sawed into lumber, and had paid for the sawing; and that the defendant did not deliver the lumber, but converted it to his own use. Admit that trover would lie, it is one of that class of wrongs where the person injured may waive the tort and recover the value of the goods, as upon a sale. As to the second error, as stated above, respecting the judgment for costs: The judgment in the Court of Common Pleas, on the appeal, was for two dollars and eighty-seven and a half cents. The act of the 4th of March, 1845, respecting appeals from Justices of the Peace, provides that, if, on appeal by the plaintiff, a recovery shall not be had for a larger sum than $20, exclusive of interest since the rendition of judgment, he shall be adjudged to pay all costs accruing in the Court of Common Pleas, including a docket fee of five dollars. The appeal in this case was taken before the passage of the act, and does not, therefore, fall within its operation. The party, at the time he Lessee of Waldron and others v. Woodcock. Dec. Term, 1846. took the appeal, had the right to do so, without any such con- IN BANK. ditions or penalties as this act imposes. The act is not remedial, but creates new obligations and rights; and hence the Court will not give it a retrospective operation, or apply it to appeals taken prior to its enactment. Judgment Affirmed, Lessee of RICHARD WALDRON and others vs. CORNELIUS A Defendant failing in Ejectment, on the ground that the land improved by him is without the bounds of his title-deed, is not entitled to recover the value of his improvements, under the act for the relief of Occupying Claimants of lands. THIS was an action of EJECTMENT, 'reserved in Delaware County. The question was a controversy about a boundary. Both plaintiff and defendant were bounded by a certain section line, and the recovery of the plaintiff depended upon fixing it in a certain place. The title-deeds of the plaintiff bounded him on the south by the section line; and the defendant, in like manner, was bounded on the north by the same line. There were two lines, each of which was claimed as the true line. The case comes before this Court on a motion for relief under the Occupying Claimant law, the defendant in ejectment claiming the right to recover the value of his improvements made on lands outside of his title-deeds. Sweetzer & Barnes, in support of the Motion. T. W. Powell, and Finch & Jones, contra. IN BANK. 1846. Lessee of Waldron and others v. Woodcock. BIRCHARD, J. The claim of the defendant to the relief Dec. Term, which he seeks, depends upon the character of his title. This title was, in the words of the statute, "a plain and connected title, in law," up to the true section line, which constituted his northern boundary. Beyond this line he had no claim, either in law or equity. This improvement, though made under a mistake, and perhaps innocently, was made in his own wrong, and is not embraced in any of the provisions of the "act for the relief of occupying claimants of land." The verdict of the jury established the fact, that the occupancy was upon lands to which the defendant had no right. The case, then, shows that the recovery has been had against him, not from any defect of his paper title, but from want of proper care in ascertaining the identity of his own land; he neglected to seek out the true line called for by his title-papers, and, from this neglect, trespassed upon his neighbor. It has been said, that the act for the relief of occupying claimants, was intended to give to the occupant the benefit of his improvements in all cases, when made in good faith, under the belief that he was the true owner, and that the statute should receive a liberal construction, in order to accomplish the equitable object of the Legislature. In a general sense this may be true; yet, strictly speaking, it would not, if literally taken, be sound doctrine, especially in a case where, from the language of the statute, no such intention can be inferred without introducing other words, not contained in the act. To thus amend the act, by construction, is to depart from the office of a court, and to encroach upon the province of another branch of the government. Admitting that the desire of the framers of the act was to furnish a remedy, as far as possible, in all cases where the occupant had made improvements, under the honest belief that he was the true owner of the soil, and it would not follow that they have done so; nor would the admission require of us a reason why they stopped short of it. We may suppose they had reasons satisfactory to themselves, and a close scrutiny of the whole act may enable us to form a safe conclusion as to what were some The State of Ohio v. Piatt and others. 1846. of them. It is sufficient to say, that we find only certain spe- IN BANK. cified cases provided for in the act, and the enumeration of Dec. Term, these specified cases excludes the idea of an intention to embrace any other. Motion Refused. THE STATE OF OHIO, for the use of the Commissioners of Hamilton Co., vs. JACOB W. PIATT and others. The Commissioners of a county may sue for, and recover, money due to the county. In an action on the bond of a Clerk of the Court of Common Pleas, by the County Commissioners, to recover fines, fees and costs, received by him in his official capacity, it is not necessary the declaration should contain an averment that the indictments, wherein they arose, were determined in favor of the State. It is not necessary in such action, that the declaration should show for what grade of offences such fines, &c., were assessed, nor that the declaration should contain an allegation that the Clerk has been qualified as such. THIS is an action of DEBT, and comes before the Court, by appeal, from the Court of Common Pleas of HAMILTON County, and reserved for decision here. The action is brought upon a bond executed by the defendant, Piatt, as principal, and the other defendants as sureties, conditioned, according to the statute, for the faithful performance, by Piatt, of his duties, as Clerk of the Court of Common Pleas of Hamilton county. The declaration contains three counts. The first sets forth the bond and condition, "that if the said Piatt should truly and faithfully pay over all money that might be by him received in his official capacity," &c., said bond to be void, &c.; avers the appointment of Piatt, delivery of bond, and deposit with county treasurer; that he entered upon his duties as clerk, and |