Upon the evidence adduced by Hooper, and demurred to by Couch, it clearly appears, that Hooper did not comply with the condition of the offer made him by Couch, to pay the debt specified in his letter making the offer. That condition was, that Hooper should dismiss the suit he was then prosecuting against Coughlan the surety of Couch’s son, at his Hooper’s costs. But instead of doing that, Hooper dismissed the suit generally, leaving the defendant in that suit to pay his portion of the costs. Nor can the supposed ratification of that dismissal of the suit, if established by the evidence (which is doubtful) avail Hooper ; since this matter is not alleged in the declaration, or put in issue by the pleadings : so that, if the suit had been dismissed generally, as it eventually was, upon the first tender of the letter of Couch to Hooper, the objection to such a dismissal of the suit would not have been obviated

The judgment is to be reversed, and judgment entered for the appellant.