The opinion of the court was delivered by .
Lowrie, C. J.We must set aside this judgment, because, the case was not properly before the court below, the record of it having been removed to this court in 1857, and not being actually taken back. But without this, the court was in error in entering the judgment. If the offer of judgment had been made under the Act of 21st March 1806, § 5, and the law there set out be still in force, we suppose that the defendant might have been held to his offer, unless he had asked and obtained leave of the court to withdraw it. But the offer is not under that act, but was entirely voluntary and gratuitous, and the plaintiff- did not accept it until after he had tried his chance for more in the court below, and in this court. This was equivalent to a proposal rejected, or at least not accepted in proper time. It required to be renewed or continued, in order to entitle the plaintiff to bind the defendant by accepting it. The defendant refused to continue it by opposing the motion for judgment on it,'and none ought to have been entered. The plaintiff must take back the record brought up here on the former writ of error before he can proceed.
Judgment reversed, a procedendo awarded, and record remitted.