Upon a re-argument, at this term, delivered the following opinion:

On the re-argnment of this cause, our attention has been particularly directed to the 68th section of the Practice Act, under which the authority of the Court below is said to be exercised.

After an examination of this section, we see no reason to change the opinion already given.

An appearance by attorney, at common law and by the express letter of our statute, amounts to an acknowledgment or waiver of service.

Such cases are not within the section referred to.