Wherefore, defendant prays that this cause be transferred to the equity docket of this court, and the plaintiffs be required to replead in accordance with the rules in equity, and that the same be tried in accordance with the practice in equity.

A. B. and C. D., Attorneys for Defendant.

(1) Judicial Code, Sec. 274a, and Equity Rule 22.

Prior to enactment of Section 274a it was held that by agreement of parties the court could transfer to the equity side an action at law which should have been brought in equity, instead of requiring a dismissal thereof. U. S. v. Wells, 203 Fed. 146.

That the courts are inclined to regard this section as authority for transferring from the equity docket to the law docket and vice versa, and for amending the pleadings appropriately, seems clear from the cases. Webb v. Sou. Ry. Co., 235 Fed. 578; Natl. Surety Co. v. U. S., 228 Fed. 577, 143 C. C. A. 99; John A. Roebling Sons v. Kinnicutt, 248 Fed. 596. Where a bill of complaint is insufficient to give jurisdiction in equity but states a cause of action at law, the court must transfer to the law side. Clinton Mining & Mineral Co. v. Cochran, 247 Fed. 449, 159 C. C. A. 503.

An action at law for damages for breach of contract to make a bequest can not be transferred to the equity side, and to transfer is error, rectifiable by mandamus issuing out of the supreme court. In re Simons, 247 U. S. 231, 62 L. Ed. 1094.

Where an action at law was tried as a suit in equity, injunctions being issued, and a decree (which was really a money judgment), and appeal, the reviewing court remanded with directions to transfer to the law side and to vacate the injunctions, and affirmed as so transferred. The error in this case was "that plaintiff brought in equity that which was not an equity action, and thereby obtained injunctive relief, which when considered in the light of the case actually made, amounted to a use of the writ of injunction as the substantial equivalent of the warrant of attachment, and for this there was no warrant, in that it gave rise to an appearance of lien or priority not justified by the evidence." Equitable Trust Co. v. D. & R. G. R. R., 250 Fed. 327, 162 C. C. A. 397.

The action of the judge upon motion to transfer to the other side of the court is reviewable in error, and is not the subject for mandamus proceedings. Ex parte Mason, 244 Fed. 154, 156 C. C. A. 582.

What the court says about Section 274a in Waldo v. Wilson, 231 Fed. 654, 145 C. C. A. 540, in apparent contradiction to the above cases, must be regarded as obiter.

No. 189.

Petition of Defendant for Transfer of Case to Equity Docket. [Caption.]

Comes now Union Pacific Railroad Company, defendant above named, by its attorneys, and respectfully petitions the court that by order entered herein, all issues, both of law and of fact, presented by or which may arise in connection with that portion of the plaintiff's reply herein designated as subdivision IV, and being "with reference to the allegations contained in the fifth affirmative defense" of the defendant's answer, be heard and determined upon the equity side of this court; and for ground hereof shows unto the court that while by the act of Congress of March 3, 1915, an equitable defense to the accord and satisfaction and release pleaded by the defendant herein in the fifth affirmative defense of its answer herein filed, may be interposed by replication without necessity of filing a bill on the equity side of this court, that nevertheless the said statute was not intended and does not undertake to do away with the distinction between legal and equity defenses and the former distinction between matters of legal and matters of equitable cognizance still exists; that all of the issues, both of law and of fact, presented by the said portion of the plaintiff's reply herein filed, are essentially of an equitable character and should be determined in limine by this court, sitting as a court of equity, prior to any trial of any of the other issues in this case as determined by the allegations of the complaint, the defendant's answer and the plaintiff's reply. (Signed) HUGHES & DORSEY,

(Signed) JOHN Q. DIER,

Attorneys for Defendant.

No. 190.

Notice to Plaintiff of Motions to Transfer Case to Equity Side and Strike Portions of Reply, etc.

[Caption.]

You are hereby notified that at the incoming of the United States district court for the district of Colorado, on Wednes

day, the 28th day of June, 1916, or as soon thereafter as counsel for the defendant in the above entitled cause can be heard, we will present to the court the petition of the defendant that all issues, both of law and of fact, presented by or which may arise in connection with that portion of the plaintiff's reply herein designated as sub-division IV and being "with reference to the allegations contained in the fifth affirmative defense" of the defendant's answer, be heard and determined upon the equity side of the court, and pray the entry of an order granting said petition, a copy of which petition is herewith served upon you:

You are further notified that at said time and place, the defendant will present to and ask that the court hear and determine the defendant's motion, which is in the nature of a demurrer for insufficiency, that there be stricken from the reply of the plaintiff herein filed that portion thereof designated as sub-division IV, the same being "with reference to the allegations contained in the fifth affirmative defense," of the defendant's answer herein, a copy of which said motion is herewith served upon you.

(Signed) HUGHES & DORSEY,
JOHN Q. DIER,

Attorneys for Defendant.

No. 191.

Order Denying Motion of Defendant to Strike Portions of Reply to Answer, and Petition of Defendant to Trans

[Caption.]

fer the Case to the Equity Docket.

At this day comes defendant, by John Q. Dier, its attorney, no one appearing for or on behalf of the plaintiff. And the motion of defendant to strike out certain portions of the reply to the answer herein, and the petition of the defendant to transfer this cause to the equity docket of this court, coming on now to be heard, are argued by counsel, and the court, having con

sidered the same, and being now fully advised in the premises: It is ordered by the court, for good and sufficient reasons to the court appearing, that the said motion and petition and each thereof be, and the same are, hereby denied.

No. 191a.

Petition for Assignment of a District Judge. [Caption.]

To the Honorable, the Circuit Judges of the Fifth Circuit:

The petition of The N. K. Fairbank Company, defendant in the above entitled cause, with respect, shows that the same was removed into said court from the [name of state court] on the [date] and the transcript duly filed in said district court on the [date], as will appear by reference to the certificate of the clerk hereto annexed and made a part hereof; that in spite of diligent effort, your petitioner has been unable, up to the present time, to secure a trial of said cause; that, at very great expense, it has procured the attendance of witnesses at said. court, expecting and urging a trial, but various matters and things intervened to prevent; that one of its witnesses has already died, and there is danger of others, whose oral testimony is desired, becoming scattered and rendering it impossible for petitioner to secure their attendance; that his Honor, the presiding judge of said court, has recently announced his purpose to hold a court for two weeks at and will not resume the trial of causes in said district court until [time], and that petitioner has reason to believe that, unless another judge shall be presently assigned to hold said court for the trial of said cause among others, petitioner will be greatly delayed through no fault of its own, and may lose the opportunity to present its defense fully as it desires and is now able to do. And petitioner represents that, in thus applying for the assignment of a district judge to hold said court temporarily, or during the absence of the presiding judge, no disrespect whatever is meant to the latter.

Prayer. The premises considered, your petitioner respectfully prays that it may please your Honors to assign and direct a district judge to proceed and hold said court, within some short date, for the purpose of trying and disposing of said cause at least; and that the clerk of said court be directed to notify all parties of such assignment. A. B.,

[Date.]

Attorney for Defendant.

No. 191b.

[Caption.]

Certificate of Good Faith.

I hereby certify that I am the attorney for the N. K. Fairbank Company, the defendant in the above entitled cause, and that I reside in the city of St. Louis, and am a member of the bar of the city of St. Louis, of the state of Missouri, and that I have prepared the foregoing affidavits at the request and as the attorney of the said defendant, and that I prepared the former petition which was presented by attorneys, to the circuit judges of the fifth circuit, and I further certify that I am familiar with the proceedings in this cause, and that the affidavit and application for the designation of a district judge are made in good faith and not for the purpose of delay or hindrance of the proceedings herein, and therefore the defendant prays that the said Thomas G. Jones, judge of the district court for the northern division of the middle district of Alabama, shall proceed no further in the hearing hereof, and defendant further prays that the said Thomas G. Jones shall cause this fact to be entered on the records of the court, and also for an order that an authenticated copy thereof shall be forthwith certified to the senior circuit judge of the said fifth circuit, and for all other and further proceedings herein as may be provided in sections 14, 20, 21 and 23 of an act to codify, revise and amend the laws relating to the judiciary passed by Congress, approved March 3, 1911, and effective from January 1, 1912. X. Y. Z., Attorney for Defendant.

[Date.]