WheeleR, J. Tho only final judgment which appears was taken long after the fourth day of the term. It was the third term after service by publication, and the second after the passage of the act of 1848, (Hart. Dig’., art. 812,) which authorizes the taking of judgment by default at the second term after service, “ as in other ” that is, after the fourth day of the term, where the defendant does not appear. Judgment was so taken in the present ease, aud it cannot affect its validity that it recited a proceeding which, if it occurred, was merely nugatory.
We see no reason to be dissatisfied with the judgment of affirmance heretofore rendered in the cáse,, and are of opinion that the petition aiid proceedings thereupon, in the application for a rehearing, bo set aside. Ordered accordingly.