In King v. Baldwin, 2 Johns. Ch. 557, it was decided that a party whose defence has been overruled as insufficient at law, shall not be relieved in equity merely on the same facts. Is not that the case of the party here, except that he was plaintiff in the suit at law? Moreover, his demand is barred by the statute of limitations; and if the doctrine of substitution is one of mere equity and benevolence, as it has been said to be, it will not be enforced at the expense of a legal right. The substitution was therefore improvident.

Order reversed, and assignment of the judgment stricken out.