It is not easy to understand from the bill of ex*338ceptions the precise aspect which the cause assumed at the trial, or the precise instructions given to the jury. A prayer for instructions by the plaintiff is stated in the bill, and it is said that “ this instruction, in these terms, was refused.” The bill proceeds to state that general instructions were given as to the nature of the action and the burden of proof; and that as to one part, of the case the instructions were given which are particularly set forth in the bill.
The instructions so reported were, it seems to us, correct. "Whether an executory agreement of the plaintiff and defendant, that the note should be deemed to be paid by being allowed in discharge pro tanto of a mortgage held by the plaintiff, could be regarded as in itself payment and a bar to a suit upon the note, it is not necessary to determine. But it is plain that such agreement could not be treated as payment, where the legal title to the mortgage was in a third person, and that third person assume to control the mortgage and to enforce its collection.
The bill of exceptions shows no error in the instructions of the court below, to justify this court in setting aside the verdict and granting a new trial. The plaintiff, seeking a new trial, must clearly establish such error. If he fall's to do so, the verdict must stand. It may be possible that the bill of exceptions does not fully present the points of law the plaintiff wished to make; but on the other hand, looking at the general aspect of the case as developed in the bill, it is difficult to suppose that upon an original suit, presenting so many controversies of fact and difficulties of law, an action for malicious prosecution could be maintained.
Exceptions overruled.