Per CUEIAM.
— This is an appeal from an order granting a new trial, and the appeal was first presented to this court at its April, 1902, term, and the action of the trial court in granting a new trial was sustained. A petition for a rehearing was granted, and the case was again submitted to the court on oral arguments of respective counsel and an exhaustive brief on behalf of appellants. This is an action upon an adverse claim involving the right of possession and ownership of certain premises claimed as a part of the Sixteen to One lode mining claim, situated in Placer Center mining district, Shoshone county, Idaho. The plaintiffs claim ownership of the Okanogan lode claim by virtue of a location made by Peter Bernier, John Egan, Sam Barber, and Ed. G-ilgan, dated May 19, 1887. The 'defendants, who are respondents here, claim to be the owners of said Sixteen to One claim by virtue of a location made on October 12, 1896. The cause was tried to a jury upon the issues made by the complaint, answer, cross-complaint, and answer thereto. On the first trial the jury failed to agree, and on the second a verdict and judgment were rendered and entered in favor of the plaintiffs, who are appellants. Thereupon a motion made by the respondents for a new trial was granted by the court, and this appeal is from the order granting the new trial.
Two errors are assigned for a reversal of the order granting a new trial. The first is that the court erred in granting the motion for a new trial, and the second is that the record does' not show the grounds upon which a new trial was granted. We shall first consider the last assigned error. This court, in Lowe v. Long, 5 Idaho, 122, 47 Pac. 93, and Sweetser v. Mellick, 5 Idaho, 783, 51 Pac. 985, held that, where the record fails to show the grounds upon which a new trial was granted, and no error warranting a new trial is apparent upon the record, the order granting a new trial will be reversed. The converse of that rule will warrant the appellate court in sustaining the action of the court in granting a new trial in a case where the court fails to state the grounds upon which a new trial is granted, provided it is apparent from the record that the mov[681]*681ing party is entitled to a new trial. We have, therefore, been required to examine the record to ascertain whether there is apparent on the face of the record error sufficient to warrant the court below in granting a new trial. With that end in .view, we have made a second and third careful examination of the record. It is contended by counsel for respondents that this is a suit in equity, and the verdict of the jury was merely advisory, and for that reason the court, if dissatisfied with the verdict, was not bound by it, and could set it aside, or disregard it, and make findings of its own. A considerable portion of respondents’ brief is devoted to the question whether suits like the one at bar are actions at law to be tried by a jury, or suits in equity triable by the court without a jury, and calls attention to the case of Burke v. McDonald, 2 Idaho, 339, 13 Pac. 351 (decided by the Idaho territorial supreme court), which holds that suits on an adverse claim are actions at law, and properly triable by a jury; and cite Doe v. Mining Co. (C. C.), 43 Fed. 219, and the same ease on appeal to the United States circuit court, 17 C. C. A. 190, 70 Fed. 455, and the case of Perego v. Dodge, 163 U. S. 163, 16 Sup. Ct. Rep. 971, 41 L. ed. 113, as virtually overruling the rule laid down in the case of Burke v. McDonald, supra, and holding that actions brought pursuant to the Revised Statutes of the United States, section 2326 [U. S. Comp. Stats. 1901, p. 1430], are of equitable jurisdiction only, and the trial court is not bound to submit any of the issues of fact involved to a jury; and contend, that being true, the court might, at its pleasure, set aside the verdict of the jury, and no error could be predicated thereon. We do not decide whether this is a suit in equity, and the verdict of the jury only advisory to the court, or not, as the record clearly shows that counsel proceeded to the trial of this case upon the theory that iit was an action at law, and it was so tried. It is now too late for them to complain of the action of the court in that regard. This ease, as presented to us, must be heard and determined upon the theory on which counsel for the respective parties presented the same to the trial court without objection or exception.
[682]*682It is contended by counsel for appellants that the motion for ■a new trial was granted solely and only on the question as to whether or not the action should be tried as one at law or one in equity. That may be true, but the record does not support that contention; for, if the court considered this a suit inequity, and the verdict of the jury advisory only, after setting aside the verdict the court would have proceeded to have found the facts which, in its opinion, were established by the evidence, and entered judgment thereon, which it did not do. From that fact it would appear that the judge did not grant a new trial solely and only on the ground that he considered this a suit in equity, and that the court had erred in submitting said case to a jury, or that the verdict was merely advisory.
It is contended that the misconduct of the jury in drinking large quantities of intoxicating liquors during the trial, and during its deliberations, was sufficient ground for granting a new trial. It appears from the record that a request was made “on behalf of some of the jurors, by the under-sheriff of the court, that certain of the jurors should be allowed to have an occasional drink of liquor at their meals, as they were in the habit, in ordinary life, of drinking more or less, and that such concession was necessary for their health.” Thereupon the court stated the request to counsel for the respective parties, and they stated to the court that they had no objection to the jury being furnished with such liquors in such quantity as indicated in the request to the court. The court then stated that it would allow the jury to have liquors in moderate and reasonable quantities under the direction of the court and bailiffs. The affidavits of several of the jurors are contained in the transcript showing that beer and whisky cocktails were furnished to some of said jurors in considerable quantities; but Tinder the statutes of this state the affidavit of a juror cannot be received to impeach his verdict, except that the verdict was obtained by “resort to a determination of chance.” (Eev. Stats., see. 4439; Flood v. McClure, 3 Idaho, 587, 32 Pac. 254; Griffith v. Montandon, 4 Idaho, 377, 39 Pac. 548; Jacobs v. Dooley, 1 Idaho, 41.) From a careful examination of the competent affi[683]*683davits in regard to the misconduct of the jury, while they show that considerable liquor was furnished to the jury during its deliberations, we shall not hold, under the facts of this ease, that the judge was justified in granting a new trial on that ground, under the decision of this court in State v. Reed, 3 Idaho, 754, 35 Pac. 706.
It is contended that the practice of permitting jurors to have intoxicating liquors during’ the trial has been sanctioned by this court in the case of State v. Reed, supra. In that case the court refused to set aside the verdict, although it was shown that the jury had used intoxicating liquors. The court there said: “It is not alleged or intimated that any member of the jury was in the slightest degree overcome by liquor.
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Per CUEIAM.
— This is an appeal from an order granting a new trial, and the appeal was first presented to this court at its April, 1902, term, and the action of the trial court in granting a new trial was sustained. A petition for a rehearing was granted, and the case was again submitted to the court on oral arguments of respective counsel and an exhaustive brief on behalf of appellants. This is an action upon an adverse claim involving the right of possession and ownership of certain premises claimed as a part of the Sixteen to One lode mining claim, situated in Placer Center mining district, Shoshone county, Idaho. The plaintiffs claim ownership of the Okanogan lode claim by virtue of a location made by Peter Bernier, John Egan, Sam Barber, and Ed. G-ilgan, dated May 19, 1887. The 'defendants, who are respondents here, claim to be the owners of said Sixteen to One claim by virtue of a location made on October 12, 1896. The cause was tried to a jury upon the issues made by the complaint, answer, cross-complaint, and answer thereto. On the first trial the jury failed to agree, and on the second a verdict and judgment were rendered and entered in favor of the plaintiffs, who are appellants. Thereupon a motion made by the respondents for a new trial was granted by the court, and this appeal is from the order granting the new trial.
Two errors are assigned for a reversal of the order granting a new trial. The first is that the court erred in granting the motion for a new trial, and the second is that the record does' not show the grounds upon which a new trial was granted. We shall first consider the last assigned error. This court, in Lowe v. Long, 5 Idaho, 122, 47 Pac. 93, and Sweetser v. Mellick, 5 Idaho, 783, 51 Pac. 985, held that, where the record fails to show the grounds upon which a new trial was granted, and no error warranting a new trial is apparent upon the record, the order granting a new trial will be reversed. The converse of that rule will warrant the appellate court in sustaining the action of the court in granting a new trial in a case where the court fails to state the grounds upon which a new trial is granted, provided it is apparent from the record that the mov[681]*681ing party is entitled to a new trial. We have, therefore, been required to examine the record to ascertain whether there is apparent on the face of the record error sufficient to warrant the court below in granting a new trial. With that end in .view, we have made a second and third careful examination of the record. It is contended by counsel for respondents that this is a suit in equity, and the verdict of the jury was merely advisory, and for that reason the court, if dissatisfied with the verdict, was not bound by it, and could set it aside, or disregard it, and make findings of its own. A considerable portion of respondents’ brief is devoted to the question whether suits like the one at bar are actions at law to be tried by a jury, or suits in equity triable by the court without a jury, and calls attention to the case of Burke v. McDonald, 2 Idaho, 339, 13 Pac. 351 (decided by the Idaho territorial supreme court), which holds that suits on an adverse claim are actions at law, and properly triable by a jury; and cite Doe v. Mining Co. (C. C.), 43 Fed. 219, and the same ease on appeal to the United States circuit court, 17 C. C. A. 190, 70 Fed. 455, and the case of Perego v. Dodge, 163 U. S. 163, 16 Sup. Ct. Rep. 971, 41 L. ed. 113, as virtually overruling the rule laid down in the case of Burke v. McDonald, supra, and holding that actions brought pursuant to the Revised Statutes of the United States, section 2326 [U. S. Comp. Stats. 1901, p. 1430], are of equitable jurisdiction only, and the trial court is not bound to submit any of the issues of fact involved to a jury; and contend, that being true, the court might, at its pleasure, set aside the verdict of the jury, and no error could be predicated thereon. We do not decide whether this is a suit in equity, and the verdict of the jury only advisory to the court, or not, as the record clearly shows that counsel proceeded to the trial of this case upon the theory that iit was an action at law, and it was so tried. It is now too late for them to complain of the action of the court in that regard. This ease, as presented to us, must be heard and determined upon the theory on which counsel for the respective parties presented the same to the trial court without objection or exception.
[682]*682It is contended by counsel for appellants that the motion for ■a new trial was granted solely and only on the question as to whether or not the action should be tried as one at law or one in equity. That may be true, but the record does not support that contention; for, if the court considered this a suit inequity, and the verdict of the jury advisory only, after setting aside the verdict the court would have proceeded to have found the facts which, in its opinion, were established by the evidence, and entered judgment thereon, which it did not do. From that fact it would appear that the judge did not grant a new trial solely and only on the ground that he considered this a suit in equity, and that the court had erred in submitting said case to a jury, or that the verdict was merely advisory.
It is contended that the misconduct of the jury in drinking large quantities of intoxicating liquors during the trial, and during its deliberations, was sufficient ground for granting a new trial. It appears from the record that a request was made “on behalf of some of the jurors, by the under-sheriff of the court, that certain of the jurors should be allowed to have an occasional drink of liquor at their meals, as they were in the habit, in ordinary life, of drinking more or less, and that such concession was necessary for their health.” Thereupon the court stated the request to counsel for the respective parties, and they stated to the court that they had no objection to the jury being furnished with such liquors in such quantity as indicated in the request to the court. The court then stated that it would allow the jury to have liquors in moderate and reasonable quantities under the direction of the court and bailiffs. The affidavits of several of the jurors are contained in the transcript showing that beer and whisky cocktails were furnished to some of said jurors in considerable quantities; but Tinder the statutes of this state the affidavit of a juror cannot be received to impeach his verdict, except that the verdict was obtained by “resort to a determination of chance.” (Eev. Stats., see. 4439; Flood v. McClure, 3 Idaho, 587, 32 Pac. 254; Griffith v. Montandon, 4 Idaho, 377, 39 Pac. 548; Jacobs v. Dooley, 1 Idaho, 41.) From a careful examination of the competent affi[683]*683davits in regard to the misconduct of the jury, while they show that considerable liquor was furnished to the jury during its deliberations, we shall not hold, under the facts of this ease, that the judge was justified in granting a new trial on that ground, under the decision of this court in State v. Reed, 3 Idaho, 754, 35 Pac. 706.
It is contended that the practice of permitting jurors to have intoxicating liquors during’ the trial has been sanctioned by this court in the case of State v. Reed, supra. In that case the court refused to set aside the verdict, although it was shown that the jury had used intoxicating liquors. The court there said: “It is not alleged or intimated that any member of the jury was in the slightest degree overcome by liquor. While a free or unlimited indulgence in the use of intoxicating liquors by a jury, or any member thereof, while engaged in their duties as such, cannot be tolerated, still such a limited use as may be had under and by direction of the trial court cannot, in our view, in the absence of any claim or assertion of overindulgence on the part of any member of the jury, be considered reversible error.” It was not intended nor does the court in that decision sanction the use of intoxicating liquors by jurors during the trial or during the deliberations of the jury, and we now lay down the rule that it is error to permit a juror to use intoxicating liquors during the trial of a case or during the deliberations of the jury on its verdict, unless it is done with the permission of the court, upon the prescription of a practicing physician; thus distinguishing or modifying the decision in the case of State v. Reed, supra.
Counsel for appellants contend that respondents’ specifications of particulars wherein the evidence is insufficient to justify the verdict is not a compliance with the provisions of subdivision 3, section 4441, of the Bevised Statutes, to authorize the court to consider them. It is contended that said specification is an argumentative presentation of respondents’ ease; that it is simply a discussion of the points upon which they rely. While said specifications are not a model that we would recommend, we think they are sufficient, in substance and form, to au[684]*684thorize the trial court to consider them, and to determine whether the evidence was sufficient to sustain the verdict. If the specifications designate some particular fact, and aver that it is not justified by, or not sustained by, or contrary to, the evidence, they are sufficient. The following specification was held sufficient, to wit: “The evidence is insufficient to show that plaintiff was the owner of the land at the time of this sale.” (Kelly v. Mack, 49 Cal. 524.) From a most careful examination of the evidence we think the court did not err in granting a new trial on the ground of its insufficiency to sustain the verdict. It is therefore apparent from the face of the record that the court did not err in granting a new trial.
It is contended that, where there is a substantial conflict in the evidence, the trial court should not grant a new trial on the ground of the insufficiency of the evidence to sustain the verdict, and that as there is a substantial conflict of the evidence in this case a new trial could not be legally granted on that ground. While that is a well-observed and recognized rule, when applied to appellate courts, it has no application to trial courts when exercising its jurisdiction in passing upon motions for a new trial. We conclude that the judge, in granting a new trial, did not abuse the legal discretion vested in him, and committed no error therein.
Order appealed from affirmed'; costs awarded to respondents.