The opinion
Scott, J.,
delivered the opinion of the Court.
Clemens having recovered a judgment against Brown on the 27th March, 1840, issued execution thereon on the 30th of the same month, which, after having been levied, was, by order of Clemens, returned with the following endorsement, “the sheriff will return the above execution staid by my order,” James Clemens, Jr.
Afterwards, on the 8th August, 1845, another execution issued on the same judgment, which being again levied, Brown moved to quash it. Among the various causes assigned for that motion, that only will be noticed, which we suppose influenced the court, viz: that from the lapse of time between the first and second execution, the presumption of payment arises, and no other execution could issue without a scire fa-cias. The motion to quash was sustained, and Clemens appealed to this court.
If a fi-fa. or elegit be sued, and no execution be had thereon, there *711 may be another,/?, fa. or elegit several years after, without a scire fa-cias, if continuances are entered from the firstfi.fa. or elegit. So if a fi-fa. be taken out within the year, and nulla bona returned and continued down several years, a capias ad satisfaciendum, may issue without a scire facias. 6 Bac. 107.
The same law is declared in Aires vs. Hardass, 1 Strange 100.
The foregoing doctrine is recognized by this court in the case of Dowsman vs. Potter, 1 Mo. Rep. 368 ; and it was moreover declared that the entry of the continuances was unnecessary.
The other Judges concuriing, the judgment will be reversed.