
    John B. McClane, Plaintiff in Error, v. Andrew Thomas, Defendant in Error.
    
      Error to Douglas.
    A. executed to B. a note for purchase of town lots, which note was sued upon. The issues submitted to the jury were, 1st. Did the plaintiff abandon his land claim ? 2. Was the note without consideration ? Under that state of the case, the court below properly refused to give the following instruction, viz.: “ That, under the pleadings, it must satisfactorily appear that the defendant demanded a conveyance of the town lots, or the plea of want of consideration does not apply.”
    Suit was brought in the late District Court for Douglas County, in April, 1858, by John B. McClane, against Andrew Thomas, upon a negotiable promissory note, executed by Thomas to McClane, January 31st, 1853, payable one day after date.' The defendant alleged, by way of defence, that the note was given in payment for two town lots in North Salem, of which the plaintiff claimed to be the owner under an act of Congress, approved September 27th, 1850, making donations to settlers, and for other purposes; that the plaintiff, before perfecting his right to the land upon which said lots were situated, abandoned the same; and that said note was without consideration. The plaintiff replied to the defendant’s answer, and denied such abandonment and such want of consideration.
    The case was submitted to a jury, that, “ under the pleadings in this action, it must appear satisfactorily that the defendant demanded a conveyance of the lots, or the plea of want of consideration does not apply.” The court declined to instruct as requested, and such ruling was excepted to. The jury found a verdict for the defendant. The plaintiff moved for a new trial, which was denied, and judgment was entered for defendant upon the verdict.
    
      
      Williams ds Gibbs, for plaintiff in error.
   "Wait, C. J.

The question to be determined by this court is, did the court below commit error in refusing to instruct the jury, that, “ under the pleadings in this action, it must appear satisfactorily that the defendant demanded a conveyance of the lots, or the plea of want of consideration does not apply?”

No other ruling of the court was excepted to; and the several other matters, not of record, embraced in the motion for a new trial, having been decided in the court below, will not be re-heard here. The issues submitted to the jury were, did the plaintiff abandon his claim, and was the note without consideration ?

A demand, by the defendant, of a conveyance of the lots, would not be necessary or material in the determination of these issues.

The jury, in finding a verdict for the defendant, necessarily found one or both of these issues in the defendant’s favor. If the note was without consideration, no demand of a conveyance would be necessary; and if the plaintiff had abandoned his claim, and had thereby placed it out of his power to convey the lots, no demand of conveyance would be necessary. "We find no error for which the judgment of the court below ought to be reversed.

Judgment below affirmed.  