Sacket v. Lothrop Tenant — 1 Cole. Cas. 91

Majority

p. 91

Sacket demandant vs. Lothrop tenant.

Headnote

TH E Sheriff, on the quarto die poji, had not returned the writ, and the demandant obtained a rule that he return it, fedente Curia, or fhew caufe why an attachment ihould not iilue; and now, the writ being returned,

Bogardus for the demandant moved that the tenant be called.

S. Thompfon contra. He contended that the de-mandant not having, on the quarto die poji, obtained a day further, mud be confidered as out of Court. The rule on the fheriff was a nullity, and inftead of it the demandant ihould have taken out a fecond fiimmons. He cited 1 Reeves, 119, 121.

The tenant, if he would put the demandant out of Court, ihould have entered a ne recipiatur on the quarto die poji; not having done fo here, it muff be confidered a waiver. By the Rule entered, that the fheriff return the writ fedente 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.