The opinion
Dickinson J., delivered the opinion of the Court:
Section 37 of the Rev. Stat. Ark. under the title, execution, p. 380, authorizes the Sheriff to permit the defendant in execution, to retain possession of the property levied upon, by giving bond in favor of the plaintiff with sufficient security, in double the value of such property, conditioned for the delivery of the property to the officer at the time and place of sale to be named in such condition,- and by the provisions of the 40th section of the same act, “if the condition of the bond be broken, and the execution be returned unsatisfied, the defendants and his securities shall be. deemed to have notice of the facts, and the plaintiff, without further notice, may on the relurri day of the execution, or on any subsequent day of the term at which such execution is returned, move the Court for judgment on the bond against the defendant and his sureties, or any of them, or the plaintiff may at his Option bring an ordinary suit on the bond.”
The 41st section (which was in force in May, 1839, but had been repealed previous to January, 1841), provided that, “If any controversy arise on the motion, it shall be heard and determined in a summary manner, without the form of pleading, and unless the demand be avoided, judgment shall be rendered thereon without delay, according to the circumstances.” The language of the Statute is plain and imperative. If the defendant in error intended to avail himself of the remedy afforded by motion, and bring himself within its provisions, he must conform strictly to all its requisites. If he fails or neglects so to do, at the return term of the execution, he unquestionably by his laches, waives any advantage and forfeits every right he may have had to relief under that mode of proceeding.
In the transcript before us, no such motion appears to have been made until the January term following. That the Court erred in taking cognizance of the motion, and in rendering judgment thereon against the plaintiffs in error, there can be no question or doubt.
The judgment of the Circuit Court of Chicot county must therefore be reversed, annulled, and set aside with costs.