We differ with the Circuit Court of Appeals in its holding that, as brought in review before it, this cause was an action at law. We think the cause was then equitable, and the proper review was by appeal. The case began as an action at law for money had and received. When the defendant bank claimed to be only a stakeholder of the deposit, disclaimed interest therein, and offered to pay it into court, and asked that the other claimants of the fund be made parties, its answer and cross-petition became an equitable defense and a prayer for affirmative equitable relief in the nature of a bill for interpleader. Section 274b of the Judicial Code, as amended by Act of March 3, 1915, c. 90, 38 Stat. 956 (Comp. St. § 1251b), provides:
'That in all actions at law equitable defenses may be interposed by answer, plea, or replication without the necessity of filing a bill on the equity side of the court. The defendant shall have the same rights in such case as if he had filed a bill embodying the defense of seeking the relief prayed for in such answer or plea. Equitable relief respecting the subject matter of the suit may thus be obtained by answer or plea. In case affirmative relief is prayed in such answer or plea, the plaintiff shall file a replication. Review of the judgment or decree entered in such case shall be regulated by rule of court. Whether such review be sought by writ of error or by appeal the appellate court shall have full power to render such judgment upon the records as law and justice shall require.'
This section applies to the case before us. The proceeding was changed by defendant's answer and cross-petition from one at law to one in equity with all the consequences flowing therefrom. The better practice would perhaps have been, on the defendant's filing its answer and cross-petition, to order the cause transferred to the equity side of the court. Under equity rule No. 22 (33 Sup. Ct. xxiv), a suit in equity which should have been brought at law must be transferred to the law side of the court. There is no corresponding provision in rule or statute which expressly directs this to be done when the action begun at law should have been by a bill on the equity side, but we think the power of the trial court to order a transfer in a case like this is implied from the broad language of section 274b, above quoted, by which the defendant who files an equitable defense is to be given the same rights as if he had set them up in a bill in equity, and from section 274a of the Judicial Code (Comp. St. § 1251a), quoted below, in which the court is directed, when a suit at law should have been brought in equity, to order amendments to the pleadings necessary to confrom them to the proper practice. Webb v. Southern Ry. Co. (D. C.) 235 Fed. 578, 593, 594. We are aware that a different conclusion has been reached by the Circuit Court of Appeals of the Fourth Circuit in Waldo et al. v. Wilson, 231 Fed. 654, 145 C. C. A. 540, but for the reasons stated, and after a full examination of that case, we think the conclusion of that court upon this point was too narrow.
Nor, by the failure to order the transfer in this case, did the suit lose the equitable character it had taken on by the answer and cross-petition of the defendant. The situation thus produced was quite like that under state Civil Codes of Procedure in which there is but one form of civil action, the formal distinction between proceedings in law and equity is abolished, and remedies at law and in equity are available to the parties in the same court and the same cause. Neither legal nor equitable remedies are abolished under such Codes.
'What was an action at law before the Code is still an action founded on legal principles; and what was a bill in equity before the Code is still a civil action founded on principles of equity.' Sutherland on Code Pleading Practice and Forms, § 87; De Witt v. Hays, 2 Cal. 464, 56 Am. Dec. 352; Smith v. Rowe, 4 Cal. 6; Howard v. Tiffany, 5 N. Y. Super. Ct. 695.
Section 274b is an important step toward a consolidation of the federal courts of law and equity, and the questions presented in this union are to be solved much as they have been under the state Codes. United States v. Richardson, 223 Fed. 1010, 1013, 139 C. C. A. 386. The most important limitation upon a federal union of the two kinds of remedies in one form of action is the requirement of the Constitution in the Seventh Amendment that:
'In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.'