Ipswitch

Appeal by plaintiff from the judgment in favor of defendant, and from an order denying a new trial.

It is unnecessary to determine the motions made to dismiss the appeal, and to strike out a portion of the transcript, which are urged by the respondent, as will appear from the conclusion reached herein.

The evidence on the issues of fact involved was fairly conflicting, and we cannot disturb the verdict of the jury on the ground that it was against the evidence.

The most serious ground for a new trial taken by appellant is misconduct of the jury, based on the allegation that one of the jurors was intoxicated. The evidence on the point consists of two affidavits, one by plaintiff, and the other by the juror whose intoxication is alleged. Plaintiff states in his affidavit that the trial of the case occupied several days; that the jurors were allowed to separate at all recesses; that "affiant is informed and believes, and so charges the truth to be,” that, during each and every recess, the said juror “drank to great excess intoxicating drinks”; that “as affiant is informed and believes, at the time the jury were charged by the court, and during their deliberations, the said juror…