Daniel vs. The State of Georgia. equity, either by metes and bounds, or by sale, as may be found most equitable and just to all parties, assigning the complainants forty two fifty-fiths, or whatever may be found to be their precise share of the whole, and applying the balance, when converted into money, to the recovery on the answer in the nature of a cross-bill of the defendant, Simmons, and the surplus, if any, to Lamar. As the trustees on both sides seem to have acted in perfect good faith, and with and by the consent of the senior members of both families, we do not think that they, or either of them, should be held personally liable for any default. The case is anomalous, sui generis, involving double trusts, two sets of children, equities all around, and while we may not have reached conclusions that will satisfy everybody, we think we have applied principles of equity to the singular facts of the case which do substantial justice to all. Judgment reversed. JOSHUA DANIEL, alias JOSHUA NEAL, plaintiff in error, vs. THE STATE OF GEORGIA, defendant in error. That a juror, after being charged with a criminal case, was allowed to separate from the jury, is ground of new trial, unless it be affirmatively shown that he had no communication with any one upon the subject of the trial, either directly by conversation, or indirectly by overhearing the observation of others. Criminal law. Jury. New trial. Before Judge POTTLE. Warren Superior Court. April Term, 1876. Reported in the decision. SEABORN REESE, for plaintiff in error. SAMUEL LUMPKIN, solicitor general, for the state. Daniel vs. The State of Georgia. WARNER, Chief Justice. The defendant was indicted for the offense of murder, and on the trial therefor the jury returned a verdict of guilty, with a recommendation to the mercy of the court. A motion was made by the defendant for a new trial, on the several grounds therein set forth, which was overruled by the court and the defendant excepted. It appears from the evidence in the record that the defendant went to a house where the deceased was, (not his own house) and asked him "what lies he had been telling on him ;" deceased replied, "go away, Josh, I don't care if you never speak to me again." They continued talking, giving each other the lie, when deceased said he would not quarrel with him, but was going to attend to his own business, and went out of the house; defendant followed him and picked up a piece of an old stump laying near the door, about three feet long; deceased went to the edge of the yard and picked up an axe lying there, the axe resting on the ground; in that position they continued giving each other the lie, when deceased said, "I ain't telling no lie;" defendant told him if he said that again he would kill him, appeared to get mad, jumped at deceased and wrung the axe out of his hands, and told him, God damn him he would kill him, and struck him on the head with the axe, which blow killed him, breaking his skull; struck but the one blow. One of the grounds of the motion for a new trial is, that one of the jurors, after being charged with the case, was allowed to separate from the jury without being accompanied by any officer, and to go across the street to the store-house of Jones, in the town of Warrenton, one hundred yards from the court-house, and return; that there was a crowd of persons there through which the juror was obliged to pass, and did pass, in going to and returning from said store-house. The fact of the separation of the juror as alleged, is not denied, but he states in his affidavit that he went to the storehouse to get his overcoat; that he did not speak to any one, and that no one spoke to him about said case; but the juror fails Lester et al. vs. Mathews. to state in his affidavit that he did not hear any person or persons in the crowd through which he passed speaking or expressing their opinions about the case. One of the reasons why the law requires jurors to be kept together, separate from the crowd of people who may have heard the trial as well as others is, that they may not be influenced in rendering their verdict by the expression of the opinion of others or by popular clamor. When the law was violated by the misconduct of the juror, the legal presumption was that the defendant was injured, and it was incumbent on the state to have rebutted that legal presumption, not only by evidence that the juror did not speak to any one himself, nor did any one speak to him about the case, but that he did not hear any one in the crowd through which he passed express any opinion in relation to the case. Jurors are as liable in our day to be influenced and controlled by public opinion, as Pilate was in his day, when by the clamor of the multitude he consented to deliver up our Saviour to be crucified. The policy of the law is to protect jurors from all such influences and temptations in the trial of criminal cases, as well as defendants who may be injured thereby. In view of the misconduct of the juror, Ricketson, and other irregularities complained of at the trial, we reverse the judgment of the court below and order a new trial. GEORGE H. LESTER et al., administrators, et al., plaintiffs in error, vs. JAMES D. MATHEWS, defendant in error. 1. A temporary administrator cannot bind the estate by a contract to pay fees to resist the setting up of a will on an issue of devisavit vel non. His business is to collect and to take care of the effects of the deceased until permanent letters are granted, either letters testamentary or of administration, as that issue may determine; he has no authority to involve the estate by employing counsel for or against the will. 2. Nor can a permanent administrator ratify such a contract made by the temporary administrator and the children of the deceased, so as to bind Lester et al. vs. Mathews. the estate, either by payment of part of the fees or otherwise; nor can he make the illegal contract of the temporary administrator a valuable consideration to support his promise to pay by coupling with it future services to the estate. He may employ counsel according to the exigencies of the estate: Code, section 2543; but such an employment must be distinct from the assumption of illegal contracts made by his temporary predecessor. 3. The words "expenses of administration" in the statute, Code, section 2533, do not include counsel fees against a will on an issue of devisavit vel non, nor do they, of themselves, in a verdict or consent decree, include such fees; nor can the consent verdict or decree be amended on a common law declaration to recover the fees. It must be done by regular proceeding in equity or at law for that purpose, with proper parties and pleadings: 30 Georgia Reports, 191. 4. If the administrators reside in the county giving the court jurisdiction, and all the other defendants in other counties, and there be no cause of action against the administrators, the court will not have jurisdiction of the nonresidents of the county, though a good cause of action exists and is alleged against them. The suit will be dismissed as to all, the non-residents having the right to be sued in the counties of their own residence, or that of some of them, if the contract be joint. COBB, ERWIN & COBB, for plaintiffs in error. JOHN C. REED; SAMUEL LUMPKIN, for defendant. JACKSON, Judge. This case was a demurrer to a declaration filed by Mathews against the administrators and heirs-at-law of the estate of Dupree, for fees alleged to be due plaintiff on account of services rendered the estate. The declaration alleged that the plaintiff, in the year 1870, was employed by the children of Dupree, on an issue of devisavit vel non, as counsel for said children against the will, and was further employed by Hunnicutt and Lester, temporary adminstrators, with the consent of the children, as counsel for the estate; that by his contract with them he was to receive a retainer of $2,000 00 and five Lester et al. vs. Mathews. per cent. upon the value of the estate saved to the children if the will was set aside; that he rendered the services, which were worth $10,000 00; that the will was set aside by a consent verdict after much litigation in the superior and supreme courts; that by the verdict $164,000 00 was saved to the children, and they and the administrators agreed to allow plaintiff $10,000 00 in full of all services, provided plaintiff would continue to represent the estate in all business in Oglethorpe and Clarke counties; that he has represented them, and stands ready to do so in said business, which is litigious and important; a bill of particulars setting forth the account and balance due is annexed, amounting to $3,707 00, and it is alleged that this amount is due by Hunnicutt and Lester, now the permanent administrators, to the plaintiff. Plaintiff further alleges that the consent verdict, which is appended to the declaration, and which sets out the fees to be paid to propounder's counsel "after expenses of administration," meant, by the expression "expenses of administration," the fee of plaintiff and his associates, and that the fees of his associates and much of his own were paid by said administrators under the verdict, and so receipted for, with the consent of all parties, and that all are thereby estopped from denying that the balance of his claim is payable under the verdict as "expenses of administration;" and adds a prayer that if the consent verdict does not include the fee under the term "expenses, etc.," that it be corrected and made to express it. There are amendments to the declaration claiming a larger amount, and alleging that on the promise of the administrators and children or their legal representatives, to pay him as expenses of administration, he discharged his duty as counsel, and the administrators are bound to pay him on the faith of that promise, and because his services are reasonably worth the sum claimed. The declaration shows that all the children or heirs sued reside out of Oglethorpe county. To this declaration the defendants demur, on the ground that no legal cause of action is set out against the administrators, and that the other defendants, the heirs, reside in |