The evidence in respect to the terms of the agreement under which the cattle were divided was conflicting in a substantial degree, and the Court below was satisfied with the verdict. We do not feel authorized to set it aside.
The contract, as testified to by the plaintiff, was not in violation of the statute of frauds. All that was to be done under it was to be done within one year. There was no competent evidence of any misconduct on the part of the jury except the affidavit of the defendant, taken before Buck, the Notary Public. The District Court properly disregarded that affidavit because it could not be assumed, in the absence of any proof to the contrary, that the defendant was present in the jury-room, or had any personal knowledge of what took place there while the jurymen were considering their verdict. (Turner v. Tuolumne County Water Company, 25 Cal. 397.)
Judgment and order denying new trial affirmed.
Neither Mr. Justice Rhodes nor Mr. Justice Crockett expressed an opinion.