(dissenting). The bond executed by the defendant and his sureties in order to retain possession of the property in controversy is not in conformity to the statute. It is conditioned that “if the said H. C. Billingsly [defendant] shall deliver to the plaintiffs the possession of the premises aforesaid, together with the costs and damages awarded to the plaintiff, if so declared by the court, then this bond shall be void.” The condition of the bond the statute authorized him to give in this case is “that he will deliver possession of the premises to the plaintiff, if the plaintiff recover in the action, and satisfy any judgment the court may render against him in the action." A comparison of the two conditions shows that the bond in this case is not in conformity with the statute.
The bond before us was given in accordance with section 3355 of Mansfield’s Digest, which was amended in 1891, and is in part as follows : “If the said defendants shall express a desire to retain possession of said premises, the said sheriff shall give said defendant ten days time within which to make his boud, with sufficient securities, in an amount equal to that named in plaintiffs bond, and conditioned that he will deliver to the plaintiff the possession of the premises, together with the costs and damages awarded to the plaintiff, if so decreed by the court.” The condition of the bond under consideration was copied from this statute. What the language copied meant was clearly understood when the statute from which it was taken was in force. By it the defendant and his sureties were bound to plaintiff to pay to him all damages he suffered by withholding the land in controversy after lawful demand therefor was made. This did not include rents and profits, or any sum for the use and occupation of the land, which accrued before the demand was made. Mansf. Dig., sec. 3362.
On the 5th of February, 1891, the statutes were amended, and the remedies of plaintiffs in actions of unlawful detainer were so enlarged as to include damages for withholding the land already allowed, together with the rent due and withheld at the time of the commencement of the suit and up to the time of rendering judgment, or the value of the use and occupation or of the rents and profits thereof during the time the defendant has unlawfully detained possession, as the case may be. Whatever the plaintiff recovers as rent for use and occupation, or rents and profits, damages for withholding the land, is allowed eo nomine in addition thereto. In the sense that word (“damages”) is used in the statutes regarding the rights of parties in actions of unlawful detainer, the amounts recoverable for rents and for use and occupation are not intended. They are kept separate and distinct in the statutes. Por example, the statute says: “If, upon the trial of any action under this act, the finding or verdict is for the plaintiff, the court or jury trying the same shall assess the amount to be recovered by the plaintiff for the rent due and withheld at the time of [the] commencement of [the] suit and up to [the] time of rendering-judgment, or the value of the use and occupation, or of the rents and profits thereof during the time the defendant has unlawfully detained possession, as the case may be, and damages for withholding the same, * * * and in all cases where judgment is rendered, either against the plaintiff or defendant for any amount of recovery, damages, or costs, judgment shall also be rendered against his sureties in the bond given under the provisions of this act.” Sand. & H. Dig., sec. 3458.
The bond before us and that used by the statute are not of the same legal effect. The fatter binds the defendant, if the plaintiff recovers, to satisfy any judgment the court may render in the action; the former, to deliver to the plaintiff the possession of the premises, “together with the costs and damages awarded to the plaintiff, if so decreed by the court,” — only a part of what the latter binds him to do. The former is not a statutory bond, and no judgment can lawfully be rendered upon it in this action. Lowenstein v. McCadden, 54 Ark. 13; Martin v. Tennison, 56 Ark. 291.
I think the judgment against the appellant should be reversed.