
    * John Hart, Plaintiff in Review, versus John Johnson.
    The limitation and settlement act (stat. 1807, c. 74) does not extend to actions tried on review.
    This was a review of a real action, commenced by Johnson against Hart, and tried upon the appeal September term, 1806, when Johnson recovered judgment against Hart for his seisin of the demanded premises and costs of suit. On that judgment a pluries writ of possession was duly issued October 10th, 1808, and on the 14th of the same month, seisin was duly delivered by the sheriff. In the trial of the original action, there was no request to have the jury estimate, and by their verdict ascertain, the increased value of the demanded premises, by virtue of the buildings and improvements made thereon.
    The writ of review was sued out on the 26th of September, 1808; and at the trial thereof, which was had at the last October terra in this county, before Thatcher, J., the plaintiff in review, after the jury were impanelled, and after the defendant in review had read his title-deeds to the jury, moved the Court to be permitted to file his claim for the jury to inquire into and ascertain the increased value, &c., according to the statute in such case provided. The judge who sat in the trial granted the motion, and permitted the plaintiff in review to give evidence accordingly ; and thereupon the jury returned their verdict, and estimated the increased value of the premises demanded at 285 dollars 71 cents. The defendant in review excepted to the said admission and direction, and the cause stood continued to this term for decision.
    
      Williams supported the exceptions,
    contending that this was in nature of a new plea, and therefore could not be received upon a review; the statute (1786, c. 66, § 1,) expressly declaring that there shall be no further pleadings; but the action shall be tried upon the review by the issue appearing upon the record to have been originally joined by the parties. Another ground of objection in this case is, that the defendant in review had recovered his judgment for seisin and possession long before [ * 473 ] the limitation and settlement act passed, which was on the second of March, 1808. It is conceived, too, that the motion of the plaintiff in review should have been made before the jury were impanelled, if he had a right to make it at all, as, by the fifth section of the statute, a right is given of challenging any juror inter ested in a similar question, either as proprietor or occupant; which right the defendant in review was deprived of exercising in the present case.
    
      Wilde, for the plaintiff in review.
    The statute provision applies to all actions that had been, as well as those that should thereafter be, commenced ; and by a fair construction includes all causes which were thereafter to be tried by a jury. The same objection would lie, and perhaps with equal force, to the allowance of this claim upon the trial of an action brought here by appeal, where the party was dissatisfied with the estimate made by the jury below. The issue would still be the same; yet he would be entitled to another investigation by the jury here. The objection that the motion was made after the jury were impanelled was not much insisted on at the trial, nor indeed can it have much weight now; for if the defendant in review prevails in his motion for a new trial, the plaintiff in review will have opportunity to make his motion before impan elling the jury.
   By the Court.

One question arising in this case is, whether the plaintiff in review is entitled to the benefit of the provisions of the limitation and settlement act; that act having passed since judgment was rendered in the original action for the defendant in review, who was the original demandant. And we are all of opinion that he is not so entitled. That act was never intended to apply to trials by review, in which the merits tried before can alone be tried. Those merits are also to be tried upon the former pleadings. The effect of the statute, if it applied to trials on review, would be to prevent execution, for a reason which did not exist at the former trial.

[ * 474 ] * If the tenant in the court below claims the benefit of the act and succeeds, and the demandant appeals, still the tenant will be entitled to the benefit of his claim below ; or, if he has not claimed it before, he may have the benefit of it on the appeal, if he claims it then. But the case of a review is quite different. Here the only questions to be tried by the jury must be comprehended in the pleadings on which the former trial was had.

The claim must in every case be made before the trial commences; that either party may make his objections to the jurors for the causes mentioned in the statute.

The verdict, being for the defendant in review, need not be set aside. Let judgment be entered upon it, and execution issue as in due course.  