
    Joseph Jordan and Alexander Whitesides against Jonathan Meredith.
    The usage of plaisterers in charging half the size of the windows, at the price agreed on for work and materials, is unreasonable and bad.
    Court will not grant a new trial, unless they are satisfied injustice has been done.
    A talesman sworn on the jury, after being struck off the list of special jurors, is no ground for awarding a new trial.
    Motion for a. new trial. The cause was tried during the present term. Indebitatus assumpsit was brought for plaister-ing two large houses in the city; and on the trial, it appeared that the parties had agreed, on the 27th February 1797, at the rate of 2s. per square yard, the workmen to find the materials ; the usual price at that time being is. per square yard if the owner of the house furnished the lime, sand, hair, &c. The plaintiffs claimed the balance of 412I. 9s. 6d. or 434I. 8s. 6d.
    Some dispute arose about .the price of a quantity of hair delivered by the defendant; but the chief matter .in controversy arose *from the mode of mensuration. The plaintiffs insisted, that according to the general usage of plaisterers toy in the city, one half part of the size of each window should be included in the admeasurement, and the sum of 107I. 12s. was said to have been charged on that ground. This was opposed by the defendant, but no argument thereon was had at the trial. The counsel on neither side summed up, but submitted their different estimates to the jury; nor was any charge given by the court. The jury found a verdict for the plaintiffs for 376I. 11s. iod.
    Mr. M. Levy for the' defendant,
    founded his motion on two grounds.
    1st. It must be presumed from all the testimony, that the jury have adopted the plaintiffs’ system of mensuration. If they have done this, they have allowed the plaintiffs 53I. 16s. for materials which have never been furnished, and have committed a clear mistake, which this court will not sanctify. There might be some pretext for charging the usual price of workmanship of 1 s. per yard, on account of the superior pains and trouble necessary about the windows ; but there can be none to justify a charge for lime, &c. which they never provided.
    2d. Malcolm M‘Donald was one of the special jurors whoc tried the cause as a talesman, and he was one of the persons • struck out of the list by the defendant. A new trial was allowed, because one of the jurors had been challenged on the principal panel, and the challenge was allowed, and he was af-terwards sworn on the jury. 2 Ld. Raym. 1410.
    Messrs. Ingersoll and T. Ross é contra.
    
    If the court shall be
    of opinion, that the practice of plaisterers in the particular complained of, is bad in itself, the onus probandi with respect to this mistake of the jury, lies on the party who excepts to the verdict. The error should distinctly be made to appear to the court, before they will interpose. It must not rest on presumption. But even presumptions do not hold there. For if the jurors have disallowed the charge made by the defendant, for the hair considered as wet, at 3 s. 6d. per bushel, (concerning which they had evidence given to shew that it was dry) then it follows, that they must have deducted 57I. 16s. from the plaintiffs’ demand. It is therefore more probable, that the jurors have made this abatement on the ground of mensuration, and they may have detected some errors in the calculation as to the remaining 4I. Suppositions will not warrant the court’s interference and granting a new trial. It will not be done without solid and substantial grounds, where it is manifest that inj ustice has been *done, or that the jury have gone against strong evidence. 2 Dali. 53. [*320
    The exception against the juror comes too late. The defendant either had, or might have had his list of the special jury before him, and could then have excepted to M'Donald’s being sworn. This is not like the case in 2 Ld. Raym., where the juror, after being challenged, was sworn by a different name. A challenge may be taken to those of the tales de circumstanti-bus. 1 Tri. Per Pais 203. Jurors, of kindred to the party, should be challenged before they are sworn. Style 100. So of a juror, who had a suit at law with one of the parties. Ib. 129. If a defendant appears and makes defence, he shall not have a new trial, for want of notice. 2 Salk. 646. So, if the cause has been tried by a common jury, where there has been a rule for a struck jury. 12 Mod. 567. Where one has a defence and does not use it, he shall be concluded. Ib. 584. If one knows of his cause of challenge and does not make it, he shall not on that account have a new trial. 11 Mod. 119. An exception to the competency of a witness comes too late after the trial. 1 Term Rep. 717. These cases abundantly prove the principle which we have asserted.
    Cited in 16 S. & R. 421.
    
    Cited in 19 Pa. 247 in support of the decision that a party who relies on a local usage should prove distinctly that it has all the requisites of an established custom. It must be ancient, uniform, and notorious.
   By the Court.

The pretended usage of the plaisterers in the present instance is unreasonable and bad in itself. To charge an employer with materials never received is the height of injustice. But we have no proof that the jury have committed this error, and we are not justified in setting aside a ver°dict on mere conjecture. To warrant our interposition,- we must be clearly satisfied, that injustice has been done, or some plain mistake committed.

The defendant should have challenged the juror before he was sworn. He has slipped his time, by postponing his objection till this period. If he has been guilty of inattention, he alone should suffer for it. And so is the current of authorities in the books.

Motion for a new trial denied.  