The opinion
Smith, J.
delivered the opinion of the court.- — The court are unanimously of opinion that there was no error in the opinion of the circuit court overruling the motion for a new trial, either on the ground of the verdict being contrary to evidence, or the discovery of new evidence. But there is some difference of opinion as to the objection, that it is not expressly stated in the record, that an oath was administered to the sheriff when the jury was committed to his custody until the meeting of the court the next day. But a majority of the court are of opi *752 nion that the sheriff is bound ex oficio to keep the jury , and it is not indispensably necessary that he should be sworn, though it is generally done out of abundant caution. But, if it were admitted to be necessary, in this case we would be bound to presume that in fact the sheriff was sworn, as the record does not shew the contrary. We find that in Kennedy's Case, 2 Va. Cas. 510. and in Mendum's Case, 6 Rand. 704 . the records are precisely like this, as to the commitment of the jury to the sheriff; and this objection was not made.