This was assumpsit on a promissory note. The defence was that the note was given by the defendant as collateral security for the performance of a contract made by a son of the defendant, J. P. H. Wentworth and others of the one part, and George Lambert, the insolvent, and one Henry Lambert, of the other.
*126The case comes up on exceptions to the instructions and alleged want of instructions of the presiding judge.
1. The instructions as to .the effect of an alteration or discharge of the contract upon the collateral security, are clearly right.
2. The instructions as to the authority of Henry Lambert, to discharge the contract, are correct as far as they go.
It would seem from the evidence of the contract, which is, however, quite imperfect, that the two Lamberts were jointly interested in this operation as partners; that Henry transacted the business at California, George residing in Boston. The report finds that there was other evidence of the agency of Henry Lambert for George, besides the fact of his being united with him as one of the parties to the contract. “ The cc urt ruled that the jury must' be satisfied bythe defendant that Henry Lambert had authority to do the act alleged to hive been done by him, in reference to releasing' or changing the contract, and for this they must look to the evidence.” If 11 te directions were not as specific as the plaintiffs desired, they should have asked for more specific instructions.
3. So, as to the alleged want of instructions in relation to the receipt and contract, the report finds that no instructions v> ere requested. To such failure to give instructions no exception lies, unless taken at the time. Every point intended to be made, should be explicitly presented to the judge at 1,1 le trial. If this be not done, and he fail to give an opinion upon it, such failure or omission is not ground of exception. Leed v. Call, 5 Cush. 14; Emery v. Vinal, 13 Shepley, 303; Badger v. Bank of Cumberland, 13 Shepley, 428.
Exceptions overruled.