The demandant’s title in this case was derived from Chester Denison and George G. Denison; and the tenants set up a judgment in their favor against the said George G. Denison and one McGinney, recovered before the deed from the said George G. to the demandant was recorded. To this judgment the tenants objected, because the same was rendered contrary to the provisions of the Rev. Sts. c. 90, § 48. This objection was overruled, on the ground that the judgment was only voidable by a writ of error, and that the demandant might maintain a writ of error, as a privy in estate, or because the judgment was prejudicial to him by intercepting his title. But we are all of opinion, after a careful examination of the authorities, that this ruling cannot be sustained.
It is true that a party, privy in estate with the party against whom a judgment has been rendered, may have a writ of error to reverse it. As where an erroneous judgment is *373rendered against a tenant for life or years, the owner of the remainder or the reversion may maintain a writ of error after the term is expired. So by him in reversion, after an estate tail is determined. Com. Dig. Pleader, 3 B. 9. But if the tenant alien, pendente lite, the alienee shall not have error. 1 Rol. Ab. 748. It is true that it is laid down in Bac. Ab. Error, B., that “ no person can bring a writ of error to reverse a judgment, who was not a party or privy to the record, or who was not injured by the judgment, and therefore is to receive advantage by the reversal thereof.” So it is laid down in 9 Vin. Ab. Error, K. 1, that “ the writ of error shall be brought by him who should have the thing for which the judgment is erroneously given, if the judgment had not been given.” But these rules are laid down too broadly, and must be understood in a restricted sense ; for it is immediately after laid down in Viner, that “ none shall have a writ of error, unless he be party or privy to the judgment.” This latter proposition appears to be too much restricted; for a privy in estate may, as before laid down, maintain a writ of error in certain cases. But we are all of opinion that there is no such privity of estate between the demandant and Denison and McGinney, against-whom the tenants recovered judgment, as would authorize him to maintain a writ of error to reverse the judgment. There is no more privity of estate between the demandant and the Denisons, than there is between a tenant who aliens in fee, pendente lite, and his alienee. According to the authorities, therefore, although they are somewhat conflicting, we are of opinion, that the demandant, not having a right to maintain a writ of error to reverse the judgment in question, has a right to avoid it by plea and proof, according to the decision in Downs v. Fuller, 2 Met. 135.
New trial granted.
It was afterwards decided, that the service of the writ of entry on George G. Denison was insufficient; and the demand-ant recovered judgment. 2 Cush. 32.