This case falls within the principle established by this court in Thayer v. Tyler, 10 Gray, 164. In that case the judgment was entered the first term upon the default of the principal defendant and the trustee, and it was held that upon scire facias the trustee might insist in bar of the action against him that the judgment against the principal defendant wa» invalid. In the present case the default of the principal defendants was entered at the second term, and after an appearance had been entered for the trustee, but before any legal service had neen made upon Stephen Gould, one of the defendants, who resided in Rhode Island. The trustee, by thus entering his appearance and filing an answer, estopped himself from denying a *91proper service on himself. But as to his right to deny'the validity of the judgment rendered against the principal defendants, the case does not seem to differ in principle from the case of Thayer v. Tyler. It would have been equally competent at the second term as at the first, for the plaintiff in the action to obtain an order of the court for a continuance of the case, and for notice to the principal defendants to appear at a subsequent term, and the trustee might properly assume that the plaintiff would do so. In this state of the action the trustee was not bound to move the dismissal of the action for want of service on the principal defendants, and he may on the scire facias raise this objection to the validity of the judgment thus rendered against them.

The judgment against Stephen Gould being invalid, no sufficient service of the writ having been made or any notice of the action having been legally given to him, the present defendant may avail himself of that matter in his defence.

Judgment for the defendant.