
    Sacket, Demandant, against Lothrop, Tenant.
    
    If'a writ of right be not returned on the quarto die post) and the ténant means to put the demandant out of court, he should enter a ne recipiatur. -
    The writ in this- cause was not returned on the quarto die post, and the demandant obtained a rule, that the sheriff/return the writ sedente curia, or show cause, why an attachment should not issue against him. On the service of this rule, the writ was returned.
    
      Bogardus, for the demandant,
    now moved that the tenant be called.
    
      S. Thompson, contra,
    contended, that the demandant not having, on the quarto die post, obtained a day further, must be considered as out of court; that the rule on the" sheriff was a nullity, instead of which the demandant should have taken out a second summons.. He cited 1 Reeves, 119-121.
    
      
      
         S. ‘C., C. C.9-1,
    
   Per Curiam.

The tenant, if he meant to put the demandant out of court, should have entered a ne recipiatur on the quarto die post. As. he has hot done so in the present [*250] case, his neglect must be considered as aAvaiver.

By the rule requiring the sheriff to return the writ, sédente curia, the demandant is to be deemed as continuing in court from day to day during the term. (See Booth, 92.) So the tenant must be called.

Rule granted. 
      
      
         See Swift y. Livingston, infra, vol. 2, 112. S; C., C. C. 122. Van Bergen v. Palmer, 18 Johns. R. 504. By 2 R, S. 2d ed. 265, § 24, writs of right are abolished.
     