
    Henry Spong et al. assignees of Catherine Hart, against John Lesher.
    A new trial will noLbe granted, where a brother in law of one of the plaintiffs was sworn on the jury, and the plaintiff’s attorney being informed of it, offered to wave the juror, provided the defendant would consent to swear another in his room, and go on with the trial, no injustice having been done by the verdict.
    Motion for a new trial, the cause having been tried at the last assizes for Berks county, before Shippen and Bradford, justices.
    The grounds of the motion were: One of the jurors was a brother in law of one of the plaintiffs, but the same was not known to the defendant or his counsel, when he was sworn. Immediately afterwards, notice was given to the plaintiff’s attorney, who agreed to wave the juror, provided the defend ant would consent to swear another in his room, and proceed in the trial; this the defendant’s counsel refused. The trial went on, and after a full defence made, the jury found a verdict for the plaintiffs, under a decided charge from the court.
    Mr. Ingersoll pro def.
    
    now cited 3 Bl. Com. 363. A juror being of kin to either party, even within the ninth degree, is a principal cause of challenge. Jurors should be “ omni ex- ‘ ‘ ceptione majores. ” If a party have cause of challenge, and knows of it time enough before the trial, if he does not challenge he shall not have a new trial. Contra, if he has not had timely notice of it. 11 Mod. 119.
    The defendant was not bound to accede to the plaintiff’s propositions, or to give his consent to swear another juror, and go on with the trial. Perhaps the court might have set aside the *juror who was so nearly of kin to the plain- r*ao7 tiff, and swore a more indifferent person; but, as the L plaintiffs have not asked for the court’s interposition, on the intimation of the cause of challenge, it is error, for which a new trial should be granted.
    Mr. W. M. Smith e contra.
    
    The defendant made a full defence, and the charge of the court was unequivocally with us. When the justice and equity of the cause is on the side of the verdict, a new trial will not be granted. 2 Wils. 307.
   Per cur.

The defendant has laid no merits before us, on which w7e can exercise a legal discretion. He made a full defence at the trial, and does not now complain that injustice has been done him. The charge of the judges who tried the cause, was clearly with the plaintiffs. And though the court might, on the trial, haye discharged the exceptionable juror, and swore another in his room, without any consent of the defendant, yet it would be very unreasonable that the defendant should now avail himself of his not consenting to change the juror.

Judgment for the plaintiffs.  