Sacket, demandant, v. Lothrop, tenant

Sacket, demandant, v. Lothrop, tenant. THE sheriff, on the quarto die post, ■ had not returned the writ, and the demandant obtained a rule that he return it, sedente curia, or show cause why an attachment should not issue ; and now, the writ being returned, Bogardus for the demandant, moved that the tenant be called. S. Thompson, contra. He contended that the demandant, not having, on the quarto die post, obtained a day further, must be considered as out of court. The rule on the sheriff was a nullity, and instead of it the demandant should have taken out a second summons. He cited 1 Reeves, 119. 121. [MAJORITY — Per Curiam.] Per Curiam. The tenant, if he would put the demandant out of court, should have entered a ne recipiatur on the quarto die post; not having done so here, it must be considered a waiver. By the rule entered, that the sheriff return the writ sedetite curia, the demandant was to be deemed continued in court from, day to day during the term. Vide Boothe, 92. So let the tenant be called.