This was an action by the appellee, who was the plaintiff, against Urban, to recover damages for pulling down and removing a fence. The issues were submitted to a jury, who found for the plaintiff. New trial refused and judgment. The causes for a new trial are thus assigned:
1. The verdict is unsustained by the evidence.
2. Misconduct of the jury, in this, to-wit: that one of the jurors, during the whole time of the argument, was engaged in reading a newspaper.
As the evidence is not in the record, the first alleged cause *175is not available. And the second is also unavailing, for the reason that it does not appear to have been supported by an affidavit showing its truth. 2 R. S. (G. & H.) pp. 212, 215, §§ 852, 855.
J. N. Evans, for the appellant.The judgment is affirmed, with 5 per cent. damages and costs.