¶1Opinion of the Court by
¶2The memorandum on which this action is brought acknowledges that, on a former settlement, the appellant owed the appellee a balance of $300 and agrees to pay him $100 unless his check had paid that sum instead of only $200, as claimed by the appellee. And it also acknowledges indebtedness for services for the year 1858, unless that account had been included in a subsequent settlement or otherwise satisfied. On those issues the appellant, therefore, held the affirmative of payment as claimed by him, and, on that subject, the instruction to the jury was right,' and, there being no proof, the verdict as reduced by the remitter of an excess was proper.
¶3The affidavit of a juror was inadmissible as the grounds of the verdict, and oral testimony was incompetent to prove the contents of the account book without accounting for the non-production of the book itself.
¶4'Wherefore, perceiving no substantial error, the judgment is affirmed.