declined giving any opinion, as he had not heard the first argument.
Yeates, J.The general rule of law unquestionably is, that none of the parties to the suit should return the jury. Here it is assumed by the plaintiff in error that Isaiah Wells, the sheriff, who summoned and returned the jury, was the Isaiah Wells, the defendant, who, as bailiff of William Richardson Atlee, distrained the goods of the plaintiff Legaux for rent. That point does not judicially appear to us, nor can we infer it from the record. But admitting the fact, after the plaintiff has let slip the opportunity of challenging the array, shall he now be admitted to assign the fact for error, of which he neglected to take advantage in due time ?
The objection in the present-instance is merely technical, Mr. Atlee being the real defendant. The plaintiff has taken his chance of the verdict. He could not but know who was the sheriff of the county wherein he lived, and he had an opportunity of taking advantage of this matter according to the reasoning of the court, in the case of the company of mercers and ironmongers of Chester v. Bowker, 1 Stra. 70. Com. Rep. 248. And it is no cause to grant a new trial that one of the jurors % ,-, *was related to one of the parties, according to 1 Vent. 4 J 30. Sty. 100. 129. 12 Mod. 584, unless the opposite party had not timely notice of it. 7 Mod. 54. 11 Mod. 114. 2 Salk. 645 ; although I confess in Corny. 602, a new trial was granted, though the cause of challenge was known at the trial.
So an objection, that witnesses are interested, should be made at the trial, and if discovered afterwards, is not itself a ground for granting a new trial, though it will have its weight where the party has merits. 2 T. R. 717. And a new trial will not be granted, for matter omitted to be insisted on at the former trial. 10 Mod. 202. 1 Stra. 691. 1 T. R. 84, 85. 2 T. R. 120. These cases have, in my idea, a very considerable analogy to the present; and the authorities cited by the defendant’s counsel, from 10 Vin. 2 pi. 1. to pi. 6, and Leach’s Crown Law 105, strongly evince the propriety of affirming the judgment.
Upon the whole, I cannot see any good grounds on which we can reverse the judgment, under the circumstances of the case.
Smith, J.Sheppard’s case in Leach 105, is strong in point. In Hesketh v. Braddock, 3 Burr. 1858, Lord Mansfield observes, in the case of Bodwick v. Fennel, it was stated at the bar, “that no acceptance or challenge was taken.” And as a party, may waive all exceptions, if he pleases; if he does not object, it is a virtual acquiescence.
Should it be objected, that it may be averred, that the defendant and sheriff are the same person, I answer that the cause of challenge then appears on the record; and it being then omitted, it is'now too late, after taking the chance of having a verdict, for the plaintiff to avail himself of it in error. But *46it does not appear on the record that the avowant is the same person as the sheriff who returned the jury. Presumption in such a case is not admissible. In error the court can presume nothing; they must be guided entirely by what appears on the record.
Brackenridge, J., concurred.Judgment affirmed.