¶1The single question in this case is whether, on a motion for a new trial on account of the alleged misconduct of the jury, it is competent for a deputy sheriff who had the charge of the jury during their deliberations in the jury room to testify *397to what he heard said and done by the jury, in the jury room, for the purpose of showing that the jury decided the case by lot, or by the drawing of a ballot from a hat in which ballots had been put, some marked for the plaintiff and some for the defendant.
¶2It is certainly not the duty of an officer in charge of a jury to listen to the deliberations of a jury in the jury room; but if he does, his testimony cannot be excluded on the ground that his knowledge was obtained in this manner, if it is otherwise competent. The rule excluding testimony of the conduct of jurors in the jury room when deliberating upon a verdict ought to have some limits. It seems that, in England, it has been finally settled that the affidavit of a juror will not be received to show that the verdict was determined by lot. Vaise v. Delaval, 1 T. R. 11. Owen v. Warburton, 1 B. & P. 326. Straker v. Graham, 7 Dowl. Pr. Cas. 223, 225. The weight of authority in this country also is that the affidavits or the testimony of jurors to show such a fact will not be received. Dana v. Tucker, 4 Johns. 487. Cluggage v. Swan, 4 Binn. 150. Brewster v. Thompson, Coxe, 32. Grinnell v. Phillips, 1 Mass. 530, is regarded as overruled in Woodward v. Leavitt, 107 Mass. 453, 461, 462. It has always been held that, if a verdict is obtained by resorting to cbance or by drawing lots, it will be set aside. Mitchell v. Ehle, 10 Wend. 595. Donner v. Palmer, 23 Cal. 40. Ruble v. McDonald, 7 Iowa, 90. Birchard v. Booth, 4 Wis. 67. Dorr v. Fenno, 12 Pick. 521. Forbes v. Howard, 4 R. I. 364. In Vaise v. Delaval, ubi supra, where a verdict was obtained by tossing up, Lord Mansfield said: “ The court cannot receive such an affidavit from any of the jurymen themselves, in all of whom such conduct is a very high misdemeanor ; but in every such case the court must derive their knowledge from some other source; such as from some person having seen the transaction through a window, or by some such other means.”
¶3In Wilson v. Berryman, 5 Cal. 44, the verdict was what is called a quotient verdict, and the court, while conceding that the affidavit of a juror could not be received, admitted the affidavit of the under sheriff that the affidavit of the juror was true.
¶4Either the law that a verdict must be set aside if determined by lot is nugatory because the fact cannot be proved, or there *398must be a possible means of proving it. If, on grounds of public policy, the affidavits or the testimony of jurors concerning what toolc place in the jury room is excluded, as well as evidence of their subsequent declarations on the subject, still we are of opinion that independent evidence should be admitted, and that the consequences to be apprehended from admitting such evidence are less harmful than the consequences of forbidding all inquiry into such a matter. We think that the presiding justice properly refused to rule as requested.
¶5 Exceptions overruled.