
    Bowen vs. Malbon.
    1. An order granting a new trial upon the ground of iucompotency of a juror, will not be reversed although the juror was competent, if the motion was heard, in part, upon “minutes of the judge,” and the “minutes” are not made part of the record.
    2. In such case the court will presume that the new trial was properly allowed. So held where several grounds for a new trial were assigned in the motion.
    APPEAL from tbe Circuit Court for Winnebago County.
    Replevin. Verdict for plaintiff. Tbe defendant moved on “ tbe minutes of the judge and all tbe papers in tbe cause,” and certain affidavits, for anew trial, because of misdirection of tbe judge, newly discovered evidence, incompetency of one of tbe jurors and other reasons. Tbe court granted a new trial on tbe ground, as stated in tbe order, that one of tbe jurors was disqualified to act by reason of consanguinity with one Buck-staff, who is alleged in tbe answer to be tbe real party in interest in maintaining tbe action.
    No case was settled, and tbe “minutes of tbe judge” were not made part of tbe record.
    
      Whittemore é Weisbrocl, for appellant.
    
      H. B. Jaclcson, for respondent.
   Cole, J.

It appears that the motion for a new trial was heard upon the “ minutes of the judge,” as well as upon the affidavits returned on this appeal. Those “ minutes” are not before us, as they should be, in order to enable us to say that the new trial was improperly granted. We must presume, in the absence of these minutes, that a new trial was properly allowed, and that the circuit court decided rightfully upon the matters before it. It is true, the order granting a new trial recites, as a reason for granting it, that it appeared to the court that McCurdy was disqualified to act as a juror on account of existing consanguinity with Buckstaff. Now it is contended that the affidavits show most conclusively that no consanguinity existed between those persons. Grant that this is so, and yet how can we assume that if the whole case were before us upon which the circuit court acted, it would appear that a new trial ought not to be granted upon some other ground ? Obviously we cannot. We must assume that the matters contained in the minutes amply justified the order granted.

By the Court. — The order is affirmed.  