#### Henry McHenry, Pltff in Error, *v.*Thomas Watkins, Deft in Error.

ERROR TO CASS.

It is error, to overrule a motion to quash an execution issued, after the judgment on which it is based is satisfied.

This was a proceeding by motion in the Cass Circuit Court, to set aside an execution issued upon a judgment in favor of Watkins, against McHenry and another, upon the ground that the judgment upon which the execution had been issued was satisfied. The record shows that a notice of the proposed motion to quash had been given, and an order to stay proceedings upon the execution, under the provision of section 4.6, of chapter 83, of the Revised Statutes, was granted by the Circuit Judge.

The motion came on for hearing at November term, 1850, before Minshall, Judge, who denied the sam

Lincoln & Herndon, for Pltff m Error

Wm. Thomas, for Deft m Error.

Treat, C. J.

On the 20th of May, 1845 Watkins recovered a judgment against McHenry and Perxapile, for §462 64. *236On the 18th of May, 1846, by virtue of an execution issued on this judgment, the sheriff sold to Watkins several tracts of land as the property of McHenry, for the aggregate amount of $350. On the 1st of March, 1847, Perkapile paid Watkins, on account of the judgment, $270 25. At the October term, 1848, Watkins entered a motion to set aside the sale of two of the tracts of land, which were bid off for the sum of $75 each, on the ground that McHenry had no title thereto; which motion the Court sustained in these words: “It is ordered, that the sale of said lands be set aside and held for naught, and that plaintiff have execution upon his judgment for the amount for which said lands were sold.” On the 26th of February, 1849, an execution issued on the judgment, on which the clerk endorsed as credits, $200 made by the sale of land, and $270 25 paid by Perkapile. The sheriff returned this execution satisfied in full. On the 9th of July, 1849, another execution issued, on which the clerk directed the sheriff to collect the sum of $150, and interest from the 18th of May, 1846. At the October term, 1849, McHenry entered a motion to quash this execution. During the same term, the sheriff, by leave of the Court, so amended his return on the execution of the 26th of February, 1849, as to show the receipt of $68 47, which sum he and McHenry at the time supposed to be the true amount due on the judgment. At the succeeding term, the Court overruled the motion made by McHenry to quash the execution; and that decision is assigned for error.

The Court erred in refusing to quash the execution. The judgment was fully satisfied by the payment made on the previous execution. The clerk seems to have construed the order of the Court setting aside the sale of the two tracts of land, as a specific direction that the plaintiff should have execution for $150. The order was not intended to have that effect. Allowing the sale of the two tracts to stand, the judgment was already overpaid; vacating the sale as to them, the amount actually due on the judgment was collected on the execution of the 26th of February, 1849. The order amounted to but this; that the sale of the two lots of land should be set aside, and the plaintiff should have execution for whatever balance might be due on the judgment, after crediting it with $200, made by the sale of McHenry’s land, to which there was no objection, and the further sum of $270 25, paid by the other judgment debtor This *237balance having been paid, the issuing of the execution in question was irregular and unauthorized.

The judgment of the Circuit Court must be reversed, with costs; and the cause will be remanded, with directions to that Court to quash the execution.

*Judgment reversed.*