1. It is too late for the commissioners to object to the action of Barker in summoning the jury. The chairman of the board gave the venires to him for service, knowing him to be an inhabitant of Dartmouth ; and at the time of the empanel-ling of the jury the commissioners’ counsel knew that Barker had summoned them. Yet no objection was made to his having served the venires until after the verdict was returned. The commissioners must be held to have waived the objection, and they cannot be permitted to retract the waiver. It is conclusive on them.'
2. The same answer applies to the objection now made to Barker’s having been left in charge of the jury — so far as it respects his interest in the case. But it is further objected that the sheriff could not lawfully appoint any deputy to the service which Barker performed after the case was committed to the jury. We think he could. No statute prohibits him.
By the Gen. Sts. c. 43, §§ 32, 33, the sheriff is to “ preside ” at the trial, when the commissioners do not appoint some other person to preside; and his prescribed duty is, to “ keep order, administer the oath to the jurors and witnesses, decide all questions of law arising on the trial, direct the jury upon any question of law, when requested by either party, and, when requested, certify to the court, with the verdict, the substance of any decision or direction by him given.”
The direction, that the sheriff shall preside at the trial, does not require him personally to keep or attend the jury while they are making up their verdict. His duty, as presiding officer, is judicial; and no other judicial officer takes personal charge of a jury, after a case is committed to them. This duty is done by executive officers, who are under the direction of the court that tries the case. We do not doubt, however, that the sheriff *559might, if he had so chosen, have taken personal charge of the jury-
3. If the petitioner had given to the jurors, or to any of them, anything by way of treat, the court might set aside the verdict, on the respondents’ motion. Gen. Sts. c. 132, § 33. But the court to which the verdict was returned has found that the refreshment given to the jury was not furnished by the petitioner, nor with his knowledge, and that it caused no injury to the respondents. And we cannot revise that finding of a matter of fact. On the facts thus found, the law does not require the disallowance of the verdict.
Exceptions overruled.