#### John Monaghan *v.*Theodosia Monaghan.

The exact amount of the judgment upon which an execution issues must be indorsed on it, and *venfli*executions that may regularly follow, must be for the same amount and be similarly indorsed ¡ and where an execution ■ issued upon a judgment for $199.15, which was levied upon lands sufficient to satisfy it, and a third *vendí*execution issued for $400 and costs, the latter is irregular, and on motion, should, together with the sale made under it, be set aside.

Motion for leave to file a petitiou in error to the District Court of Erie county.

In the Court of Common Pleas of Erie county, Theodosia Monaghan, defendant in error, in a suit for alimony .against her husband, John Monaghan, plaintiff in error, obtained a decree in her favor for five hundred dollars and ■costs, payable in five semi-annual installments of one hun*326dred dollars each, commencing December 1, 1872. The •'costs were ordered to be paid in ten days.

The court further ordered that, “In default of the payment of said several sums of money, or either of them, or of said costs as aforesaid, it is provided that execution issue against the defendant therefor.” The plaintiff’s costs were taxed at $99.15.

On the 20th of December, 1872, an execution issued against the defendant below for $199.15, being the first and only installment of alimony then due and the costs, which was properly indorsed on. the writ as follows r “ Judgment vs. John Monaghan, October term, 1872, for the sum of $100 and costs.” The sheriff, for want of goods and chattels, levied the same on the lands of John Monaghan, caused them to be appraised, and returned the writ.

On the 12th of March, 1873, a. *vendi*execution issued, and on the 12th of September, 1873, an *alias vendi*execution was also issued. Both of these strictly followed the execution in the amount of the judgment and indorsement, and both were returned without a sale having been made.

On the 31st of August, 1874, a *pluries vendi*execution issued for “ the sum of four hundred dollars and costs,” and the indorsement'is as follows: “Judgment vs. defendant, October term, 1872, for the sum of (now due) $400 and costs.”

Under this writ, the lands levied on were sold to Henry E. O’Hagan, who moved to confirm the sale. John Monaghan promptly moved to set aside the *pluries vendi*execution, and also the sale made under it, -on the ground, among others, that the execution was issued and levied for only $199.15, and the *pluries vendi*execution ordered the lands levied on to be sold to make the money on a judgment for $400 and costs.

The motion to confirm, and the motion to set aside the writ and sale, were heard together. The latter was overruled and the former granted. Monaghan excepted, and took the case on error to the District Court of Erie county, *327where the judgment of the Common Pleas was affirmed, and he now moves this court for leave to file a petition in error to reverse the judgment of the District Court.

*jS. &¡ h. Ji. Goodwin,*for the motion.

By the Court.

Section 423 of the code provides, “ That: the ex..ct amount of the debt, damages, and costs for which the judgment is entered, shall be indorsed on the execution.”

Section 442 provides, “ If lands and tenements levied on as aforesaid, are not sold upon one execution, other executions may issue to sell the lands so levied upon.”

The judgment is the foundation upon which the execution rests. The execution issued upon it represents the exact amount for which it was rendered, and clothes the executive officer with power to seize the property of the judgment debtor to make the amount of the judgment and costs, but nothing more. If the property levied on is not sold on the execution, a *vendi*execution may issue commanding the officer to sell the property in his hands to make the amount of the judgment, to satisfy which the levy was made. The execution and levy upon it constitute the predicate of the *vendi*execution, and the latter, as the former, rests upon the judgment, and its only office, when sufficient property has been levied on, as in this case, is to sel] that which has been already seized to satisfy the judgment and costs upon which the execution issued, and the same is the case with other *vendi*executions that may issue.

The execution in this case was issued and levied on a judgment for $199.15. The *pluries vendi*execution, upon which the lands were sold, issued úpon a judgment for $400 and costs. It is not, therefore, the same judgment upon which the execution issued, and is for more than double the amount levied on the land. To permit this, would be not only to convert the *vendi*into an execution, but also to allow money to be collected upon it, which had not been previously levied.

*328The plaintiff below could have had execution for each installment of the decree as it fell due, but having only taken execution for the first installment and costs, before the second installment fell due, the execution represented only the amount of the judgment that was ripe for execution when it issued and was levied. It was therefore fatally irregular to include in the *vendi*execution installments of the decree which had fallen due, after the levy upon which the lands were sold had been made.

It may be said that if the lands had been sold on a regular *vendi*execution, and the money brought into court, it would have been appropriated to the payment of the entire decree and costs, and that therefore the irregularity is not material.' The answer to this is, that if the money had been so brought in, the court had power to have made such order respecting its distribution as the law or equity might require ; but the mode of raising money to satisfy a judgment by execution, is regulated by statute, and the mode prescribed must be followed, which has not been done in this case, and it would be a dangerous precedent to allow to the clerk and sheriff, as officers of the law, the exercise of such powers as would be implied from sanctioning the proceedings in this case.

*Judgments reversed.*