delivered the opinion of the Court.

W e feel no difficulty in declaring, that both decrees k are j-jgjjt. Although the appellant might have resorted to a Court of Equity in the first instance, if his case would bear it, it is now too late, after having made his election, to take a trial at Law. As to the surprise, which is made the pretext for this application to a Court of Equity, it ought not to benefit the appellant in the present case ; since, when he discovered a disposition in the appellee to avail himself of his legal advantage at the trial, he might have suffered a non-suit.

Decree affirmed.(1)