
    JACOB M. GAY, plaintiff in error, v. B. T. PEACOCK et al., defendants in error.
    (Atlanta,
    June Term, 1870.)
    1. FRAUD—RESPONSIBILITY OF THIRD PARTIES—SUFFICIENCY OF EVIDENCE TO SHOW PARTICIPATION.— Where P. had advanced money to B. and C., one of whom was P.’s son, to buy a tract of land, with the understanding that the title was to be taken in P.’s name, and B. and C. bought the land, and had the title made to P., but having diverted a part of the money to other purposes, they engaged to give the vendor their note with security for the part left unpaid, and subsequently, after the deed to P. was duly recorded, they procured G., by false pretences, to become their surety on said note, telling him the land was bound for the debt:
    
      Held, That these facts ¡did not ¡furnish evidence to justify the inference that P. was engaged in the fraud, so as to authorize a judgment in favor of the complaint, allowing the land to be sold for the payment of the note.
    2. AMENDMENT—AS A MATTER OF RIGHT—AT ANY STAGE OF CAUSE—REFUSAL OF IMMATERIAL AMENDMENT.-—-Under section 3429 of the Code, either the' plaintiff or defendant may, as a matter of right, amend his pleadings at any stage of the cause, and the fact that the case is before the jury and part of the argument had on the evidence, does not render it too late to amend. If, however, the amendment be immaterial, and be refused by the Judge, the refusal is not a ground for a new trial.
    3. EXCEPTIONS—TIME IN WHICH TO EXCEPT—EFFECT OF INQUIRY BY JUDGE.—Parties in the final trial have thirty days after the adjournment of the Court, to except to the decisions made on the trial, and they are not concluded if, on inquiry, by the Judge, during the trial, they fail to answer or say they are content with his rulings, but such a request or demand by the Court is no ground for a new trial, unless it appear that the conduct of the Judge, was calculated to prejudice the case before the jury.
    *4. BILL OF EXCEPTIONS—ORIGINAL LOST—CORRECTION OF CERTIFIED COPY—ADMISSION OF CERTIFIED COPY IN LIEN OF ORIGINAL.—The original bill of exceptions being lost, and a certified copy of it being in Court, this Court, upon the admission of counsel, that there was an error in said certified copy, allowed the error corrected, and the copy so corrected to be established in lieu of the lost original: (R. See end' of Report.)
    Equity ,Pleacbngs. Fraud. Charge of Court. Exceptions. Before Judge Johnson. Schley Superior Court, October Term, 1869.
    Benajah T. Peacock, Menzes R. Barnes, and Jacob M. Gay, made and delivered to George W. Mott, their joint and several promissory note for $687 50, dated the 25th December, 1866, due twelve months after date, and payable to said Mott, or bearer. On the 26th of December, 1867, Mott sued said parties on' said note. Pending this action, Gay filed his bill in equity, containing the following averments and prayers. About the 25th of December, 1866, said B.. T. Peacock and Barnes, proposed to buy from George W. Mott certain 'described land, which George W. owned, (the title whereof was in his father, Joseph Mott.) George W. agreed to let them have the land at $1,200 00; they were to pay him $600 00 in cash, and give him their note for $687 50, due twelve months after date, -with personal security. B. T. Peacock and Barnes applied to Gay, told him they had bought said land, had paid part cash, and were to give their, note, at twelve months, for $687 50, with personal security, and asked him to stand their security for that sum. They assured him the land would be good for that amount, and that he would run no risk. Relying on these -representations, -and believing the title to the land would be made to B. T. Peacock and Barnes, Gay signed said note with them as their security, on the day of its date. “Contrary to the express understanding” with him, that the title was to be made to them, and that they were the purchasers for their own use and benefit, they procured Joseph Mott, who was old, and confined to his room by sickness, to sign a deed prepared by B. T. Peacock, whereby said land was conveyed to Benajah Peacock, the father of Benajah T. Peacock, and uncle of Barnes. Not *being present, Gay did not know that said deed was so made till long afterwards. It was so made to defraud Gay. Joseph Mott did not notice who was the feoffer in said deed, nor did it occur to him that Gay’s rights could be affected* thereby. Mott has sued him and the other makers on said note; they are hopelessly insolvent. B. T. Peacock has filed his petition to be adjudged a bankrupt; his and Barnes’ property is levied on by various attachments, and Benajah Peacock has claimed said land. Under these circumstances, Gay will have to pay said note. He has applied to Benajah; Benajah T. and Barnes, to pay said note, or arrange that the land shall pay it. B. T. and Barnes refused to pay it or indemnify Gay, and Benajah Peacock insists that said land is his, and the three “combining with divers other evil disposed persons unknown, how to injure and defraud” Gay “in the premises, wholly refused to come to any fair and equitable settlement of said claim, but said Benajah insists upon said pretended claim and title,” to the destruction of the rights of Gay in the premises. '
    He prayed for general relief, for discovery from Joseph Mott concerning the consideration of the note, etc., that B. T. Peacock, Benajah Peacock and Barnes, be enjoined from selling or encumbering the premises; that a Receiver be appointed, that he sell the land, and bring- the proceeds into Court for distribution, that the note be paid first, and that for this purpose, Benajah be decreed to hold said title only as trustee for said purchasers. Pie prayed for subpoenas against all of 'the parties, but waived discovery from any but Mott.
    To this hill is attached, as an exhibit, a copy of said deed. It purports to have been made in said county, on the 11th of December, 1866, is in the usual form, from Joseoh Mott to Benajah Peacock. It is witnessed by Benajah T. Peacock and said Barnes, and was recorded in said county on the 13th of December, 1866.
    Barnes and Mott did not answer. Benajah Peacock answered that, his son, Benajah T., wished to buy the .land, and asked him to lend him the money, that he refused, but said that he would buy it himself, that he handed his son $1,200, to pay for it, with instructions to get a.deed made to him, *the father, have it recorded, and hand it to him. That the deed was so made, recorded and delivered' to him before said note was made, and so far as he knew, after all said purchase-money was paid. Benajah T., answered the same as to his father’s furnishing the money, that he told Joseph Mott he was buying the land as his father’s agent, and was to take a title to his father, and that it was at the instance of Joseph Mott that he and Barnes signed said deed, as witnesses. Further, he said that he, at the date of the deed, paid all the purchase-money, $1,200 00, in cash. He sa'id the note was made on or about the first of January, for the following personal property: $211 00 for corn, $150-00 for a horse, $100 00 for cotton seed, $30 00 for fodder, and $134 00 cash, borrowed, -to the sum of which was added, ten per cent, for interest, for one year; that Gay did not sign said note when it was made, but afterwards, when he was not present, that he knew not what Barnes may have told Gay, but denied having anything to do with procuring Gay’s signature, or speaking to him on the subject.
    When the cause was called for trial, and the parties had announced, ready, before the jury was selected the Judge required counsel for both parties to state the issues of law and fact, which would be insisted upon.
    ■ The bill was taken pro confesso, as to Barnes and Joseph Mott. Before beginning the trial the Court asked, whether either party wished to make any amendment—and they said they did not. The bill and answers being read, complainant’s solicitors read the testimony of Geo. W. Mott, who testified that, the note was given for the land, bought by B. T. .Peacock and Barnes, from him for themselves; that he had the deed made by his father, because it was not necessary to have a deed first made to him; “the note' was for $888 50, including twelve months’ interest added in;” that he required of them part cash, and a mortgage on the land, or personal security for the balance, and that the reason why the note was not given when the deed was made, was, because they had not measured some corn, etc., which entered into the trade; that they were to pay for the corn, etc., first, and then *pay what they had left on the land, and- then give a note for the balance of the purchase-money; that B. T. Peacock paid him in all, about $100 00 in cash. B. T., told him he expected money from his father, but did not say that he was buying for his father, and neither George W. Mott, nor Joseph Mott, knew when he wrote the deed that it was made to convey the land to Benajah Peacock; that Gay signed the note at the request of B. T. Peacock and Barnes.
    Barnes, testified that, George W. Mott’s version of the trade, and the consideration of the note was correct; that he and B. T. Peacock bought the land jointly, that $600 00 was furnished by B. T. Peacock, and that both induced Gay to stand security, he, telling Gay, the land was bound for the note. Gay, testified that, he was induced by Barnes to sign said note, Barnes, telling him that it bound the land; that afterwards, B. T. Peacock told him, it was given for part of the purchase-money of said land, and that in December, Benajah Peacock admitted the same thing to Joseph Mott. One Cordell, testified to the said representations of Barnes, and the like admission by B. T. Peacock. Joseph Mott, testified to the said admission by Benajah Peacock, and said that, the old man Peacock, said that he would give up the land if they would pay him the $600 00, which he had loaned the boys, meaning Barnes and B. T. Peacock. He said he heard the trade made, and stated it as George W. Mott had; he said he heard nothing said about Benajah Peacock being the purchaser, but admitted, that he knew when he made the deed, that it was made to him, but said he did not think of the materiality of it at the time; that B. T., told him when he was writing the deed, that he would make it to his father, because his father wished it so made. That they occupied the land, and Benajah Peacock never did. They read in evidence the note, and closed.
    Defendants, read in evidence said deed. Benajah Peacock and Benajah T. Peacock, testified as they had answered, and that the father rented the land to the son, at $240 00 per annum. The evidence being closed, the Court required counsel to state the issues of law and fact, upon which they intended *to insist before the Court and jury. One of complainant’s solicitors argued the case, and was replied to by one of defendant’s solicitors. Court then adjourned till the next morning. On the next day, when another of defendant’s solicitors was about to speak, the Court stated to him, in the hearing of the jury, that as he construed the bill, it contained no charge of fraud as to old man Peacock, that it was his province and duty to construe the pleadings, and to determine what was. and what was not averred. Counsel made his argument. Complainant’s counsel was arguing in conclusion, and was near the end of his speech, when defendant’s solicitors . stated that, if the Court was of opinion that the bill was insufficient in the matter aforesaid, he would amend. The Court replied, that counsel must act in the matter without any reference as to what might be the probable opinion of the Court upon the point indicated. Thereupon, defendant’s counsel asked leave to file an amendment, duly sworn to by complainant. It expressly charged that the procurement of the making of said deed to Benajah Peacock, was fraudulent on his part, and that he and his son, B. T., fraudulently combined with said Barnes in procuring the deed made to Benajah Peacock, instead of Benajah T. and Barnes, who were the real purchasers and parties beneficially interested therein. The Court refused to allow the amendment filed, remarking in the hearing of the jury, that when counsel at that stage of the proceedings, found themselves with a defective case, and the Court had intimated an opinion against them, it was too late to amend.
    The argument was concluded and then the Court charged the jury substantially as follows: 1st. If Barnes and young Peacock paid their money for the land and took the title to old Peacock, he became trustee for them, and the land is subject to their debts. But, 2d. If old Peacock bought it, through his son, and it was the father’s money which the son paid, in whole or part, and the deed was made to the father, the land is not subject to the debts of Barnes and young Peacock, and old Peacock is not trustee. 3d. If old Peacock did not buy the land but loaned money to his son *and Barnes, and the deed was made to old Peacock, and if his son and Barnes still owe him for the loan, then old Peacock is entitled, as against complainant, to retain the land until this debt' is paid. 4th. The jury will not intertain any question of fraud by old Peacock, because the bill alleges no fraud as to him. The fact that young Peacock is his son raises no presumption of fraud as to old Peacock; it only goes to the credit of young Peacock, as a witness.
    At the conclusion of this charge, the Court called- upon complainant’s counsel, in the presence and hearing of the jury, to state whether they had any exceptions to said'charge, and if any, to say whether they went to the whole charge or any particular part of it. Thereupon the complainant’s counsel stated that they excepted to the 2d, 3d and 4th clauses thereof. Pie then 'asked them if they had any requests to charge. They requested him, in writing, to charge: 1st, If young Peacock was the agent of his father, who entrusted him with money to buy the land, and the son diverted part of the money from that object, and appropriated it differently, the father, who reposed the trust, and put it in the son’s power to abuse the trust and commit a fraud, (if any fraud has been committed) must suffer the consequences of the fraud and abuse of trust, rather than an innocent person, who reposed no such trust, and gave no such power. 2d. If the transaction as between old Peacock and his son and Barnes was a contrivance to secure the payment of money advanced by the father to them, said deed is a mortgage, and the father is entitled to hold the deed as a security for so much of the advance as- the son paid for the land. 3d. If said note was given for part of the purchase-money to the land, and said deed was made to the father, fraudulently, on the part of his son and Barnes, the land is subject to the. payment of the note. The Court refused so to chai-ge.
    
    The Court then asked defendant’s counsel, in presence and hearing of the jury, to state whether they had any exceptions to his charge. They said “No;” the Court said, “then you are content;” they replied, “Yes.” The Court then remarked to the jury that they had nothing to do with what *had just transpired in their bearing as to exceptions to his charge, etc., that all that was designed to carry the cause to a higher tribunal. The jury found for defendants, and a decree was entered for costs against complainants.
    His counsel say the Court erred 1st, in requiring counsel to state the issues of law and fact, which - would be insisted upon, before the jury was stricken and after the evidence was closed. 2d. In refusing to allow said amendment filed when it was offered. 3d. In' the 2d, 3d and 4th of his charges. 4th. In refusing to charge as requested. 5th. In requiring them to state whether they excepted to his charge during the progress of the cause and before the jury retired. 6th. In requiring them to except in the presence and hearing of the jury, and in allowing the remarks by the Court and defendants to be heard by the jury. 7th. In admonishing the jury to pay no attention to what had occurred touching said exceptions, and in giving said reason for such admonition.
    (The original bill of exceptions had been lost and a certified copy of it was here. In the brief of evidence contained in it, George W. Mott was made to say that the deed was made to old Peacock with his, George W’s, knowledge, whereas, counsel agreed here that he testified that it was without his knowledge. This Court allowed said certified copy amended so as to put “without” for “with,” and then that copy was established in lieu of the original.)
    Cook & Hall, for plaintiff in error,
    said fraud need not -be charged in totidem verbis: 1 O’Neal’s Ch. P., 375; 5th Ga. R., 403; 11th, 410;* 6th, 624. The charge in the bill was sufficient under the prayer for relief, to authorize a -decree: 2 Kelly (Ga. R.,) 420; O’Neal’s Ch. Pr., 437, 439. The father, though innocent, could not take the benefit of his son’s fraud: Benjamin on Sales, 340-1-6, 351; 6 M. & W., 358; R. Code, sec. 3138. As to who of two innocent persons shall suffer: Story on Agency, secs. 127, 443, 470, 444, 446. The amendment was in time: R. Code, sec. 3429 ; 26th Ga. R., 617. 32d, 141. As to inappropriateness of charge: 27th Ga. R., 450. The charge was abstract and *pa.rtial: 11th Ga. R., 288; 5th, 277; 16th, 38. Thirty days were allowed for exceptions: R. Code, sec. 4191, 4193. As to manner of charge: 5th Ga. R., 85; 8th, 258; King v. King, 37th Ga. R.; R. Code, sec. 3138.
    
      Hinton, Hudson & Wall, for defendants.
   McCAY, J.

The leading question in this record, is whether the facts, as developed by the testimony, show such a complicity, by old Mr. Peacock, in the fraud, evidently practiced by his son and Barnes, on Gay, as to make the land, the legal title, to which is in him, subject to the debt. We see nothing in the testimony to justify the inference that Benajah T. Peacock, the father, knew of, or had the least to- do- with, the fraud. Pie seems to have advanced his money honestly and unsuspiciously, and when his son presented him the title to the land, properly signed by old Mr. Mott, and witnessed by Benajah T. and Barnes, he had a right to think all was fairly done, as he had directed. The evidence is clear, that old Mr. Mott knew he was making the title to Benajah, the father, and not to the son;’ indeed, the papers themselves prove it, as no man in his senses would make a deed to a man, and call upon the grantee in the deed, as a witness to its execution. The papers, upon their face, convey the title to old Mr. Peacock, and any concealed equity young Mott might have had, growing out of the deception practiced upon him by young Peacock, could not fall upon old Mr. Peacock, who advanced, his money fairly and in good faith.

As to Gay, he lent his name, at a time when the title was fully in the defendant, the elder Peacock, and the deed was recorded.

The fact that the Peacocks are father and, son, does not help the case, since, said as it may appear, sons sometimes practice fraud even upon their fathers, and there is neither law nor equity to justify a jury in saddling the father with the burden of the son’s wickedness. There is, perhaps, some moral propriety in holding the father responsible for the results *of the training he has given his son, but that is a propriety which the Courts cannot enforce.

Had the facts of the case, as they came out in the evidence, authorized the jury to find old Mr. Peacock in complicity with the son, we should overrule the judgment of the Court in this case and order a new trial.

2. The Statute, Revised Code,, section 3429, allows amendments at any stage of the cause, and when the amendment proposes, as in this case, merely to make allegations, based upon proof already before the Court, we do not think the application came too late, even though the case was partly argued to the jury. It would be carrying technicality very far, to refuse such an application, to-wit, an amendment of the charges, to make fit the evidence actually before the Court, and that evidence not objected to. But as we hold there was no evidence to justify the inference of fraud, we will not disturb the judgment.

3. As to the matters of practice, we think such things are in the control of the Judge. Doubtless there are many cases when a statement by each party, of his case, as he intends to rely upon it, will largely facilitate the business of the Court, and aid both Court and jury in applying the evidence to the pleadings and the law, and, if there be no terms exacted, calculated to prejudice the rights of the parties, we see no objection to the practice. It is clear to us that the Court erred in requiring the parties to say whether they were satisfied or not with his rulings upon the law. The Code gives thirty days to the party complaining within which to tender to the Judge his bill of exceptions. Revised Code, section 4193. • And such has been the uniform understanding of the Courts. To require a party to announce, during the trial and before the thirty days have expired, his assent or dissent from the rulings of the Court is, as it seems to us, a limiting of the time granted him by the Statute.

But we see in this no ground for a new trial, nothing that passed in this connection could by any possibility have influenced the jury. Indeed the Judge in terms told them to pay no attention to it.

*The verdict was such as the evidence required. Any other verdict under the evidence would have been improper, and we do not think a new trial ought to be had.

Judgment affirmed.  