notes, each being for $67,000, and payable in one, two and three years, respectively. In accordance with the contract the remaining assets of the American Bank were placed in the hands of the trustee, Thomas L. Kimball, who proceeded to collect them and apply the proceeds on the notes until his death during the pendency of this suit. Subsequently a successor was appointed, who continued in performance of the trust until the entry of the decree. The execution of the contract of December 21, 1895, by the president and cashier of the American Bank was directed by resolution of its board of directors. On January 14, 1896, at an annual meeting of the shareholders of that bank, at which was represented 1,665 shares out of a total of 2,000, a resolution was adopted instructing the directors to take action looking to the liquidation of the bank. On February 25, 1896, another meeting of the shareholders was held, at which 1,696 shares were represented, and a resolution for voluntary liquidation was adopted by an affirmative vote of 1,639 shares. The Union Bank fulfilled its obligations under the contract, having taken up all the liabilities assumed by it. The trustee meeting with little success in collection of the assets, this suit was, after the first note had matured, instituted in the Circuit Court of the United States for the District of Nebraska by Sumner Wallace, a citizen of New Hampshire, to whom the note had been transferred, against the Union Bank, Thomas L. Kimball the trustee, the American Bank and its stockholders, including the appellants. By an amended bill the complainant sought on behalf of himself and all other creditors of the American Bank the winding up of the affairs of that bank, the determination of the amount due upon his note, the ascertainment of all the creditors and the amounts of their claims, the subjection of the remaining assets to the payment of those claims and the enforcement of the liability of the stockholders. He had not reduced the note to judgment prior to the commencement of this suit. Upon a final hearing a decree was entered ascertaining the amounts due the complainant and the Union Bank 201 U. S. Argument for Appellants. (they being the only creditors), after the application of all credits, the number of shares of stock held by each shareholder of the American Bank and directing a recovery of $97.23 on account of each share of stock. This decree was affirmed by the United States Circuit Court of Appeals for the Eighth Circuit, 68 C. C. A. 40; 135 Fed. Rep. 286, from whose decision an appeal was taken to this court. Mr. W. W. Morsman and Mr. Howard B. Smith for appellants in this case and in Nos. 192 and 193, submitted simultaneously herewith.1 Mr. Richard S. Horton for appellant in No. 194, argued at time of submission hereof.2 Mr. Richard S. Horton and Mr. Charles Battelle for appellants in No. 195, submitted simultaneously herewith.3 The court did not have jurisdiction on the ground of citizenship, because complainant is the assignee of a non-negotiable chose in action and his assignor, the Union National Bank, is a bank located in Nebraska, while the American National Bank, Kimball, and these appellants, were also citizens of Nebraska. Wilson v. Knox Co., 43 Fed. Rep. 481; Parker v. Armsby, 141 U. S. 81; Mexican Nat. R. R. Co. v. Davidson, 157 U. S. 201; Cloud v. City of Sumas, 32 Fed. Rep. 177. The American National Bank did not go into voluntary liquidation within the meaning and purpose of the United States banking laws. The word "liquidation," used in said sec. 2 and in sec. 5220, Rev. Stat., has a definite meaning and presupposes the existence of assets to be liquidated in the manner provided. But there remained under the control of the American National Bank or of its directors nothing to liquidate. All the assets of the American had been turned 1 No. 192, Frenzer v. Wallace; No. 193, Morsman v. Wallace, post, pp. 244, 245. 2 No. 194, Poppleton v. Wallace, post, p. 245.. 3 No. 195, McClellan v. Wallace, post, p. 244. Argument for Appellants. 201 U.S. over to the Union and Kimball, for them to collect and apply to the payment of the three notes, and they had proceeded to do this and were still engaged in the process of liquidation at the time the vote was taken. The complainant has not filed "a bill in the nature of a creditor's bill," as positively required by said sec. 2; for neither of his bills alleges and his proof does not show, any action at law upon his note. But a creditor's bill presupposes two things: (1), that the creditor has been able to establish his claim to be a valid and honest claim before the proper court at law; and (2), that he needs the assistance of a court of equity in order to realize upon it. Jones v. Green, 1 Wall. 330; Smith v. Railroad Co., 99 U. S. 398; Scott v. Neely, 140 U. S. 106; Nat. Tube Works Co. v. Ballou, 140 U. S. 517; Hollins v. Brierfield C. & I. Co., 150 U. S. 371. The American National Bank and its shareholders have been deprived of their right to have the validity of the note sued on determined in the proper court and before a jury. This right to a jury trial is preserved by the Seventh Amendment to the Constitution of the United States, and by sec. VI of Art. I of the constitution of Nebraska. Cates v. Allen, 149 U. S. 451; Scott v. Neely, 140 U. S. 106. There are only two methods of liquidating a national bank, one by direction of the Comptroller and the other under § 5220, Rev. Stat., and the bringing of this action by a party not a judgment creditor conflicts with both of these methods. The American National Bank was not obligated to make good any deficiency remaining after the exhaustion of its assets in the hands of the Union National Bank and Kimball, and hence appellants were not liable therefor as shareholders. Cases in the Federal courts sustain the power of national banks to borrow money only where the moneys were loaned, borrowed and used by banks in good faith in the usual course of the business of banking; or if not actually so used the loaning banks had no knowledge of the diversion thereof and were not parties thereto. Those cases establish that the power to 201 U. S. Argument for Appellants. borrow money is incidental and limited to occasions when borrowing is necessary to carry on the business of banking, and that all borrowing must be of a temporary nature. First Nat. Bank v. Nat. Exch. Bank, 92 U. S. 122; Western Nat. Bank v. Armstrong, 152 U. S. 346, 351; U. S. Nat. Bank v. First Nat. Bank, 27 U. S. App. 605; Auten v. U. S. Nat. Bank, 174 U. S. 125; Stapleton v. Stockton, 91 Fed. Rep. 326; Ditty v. Dominion Nat. Bank, 75 Fed. Rep. 769; Aldrich v. Chemical Nat. Bank, 176 U. S. 618. In this case the nature of the transaction and its natural and inevitable results was not a simple borrowing of money but was one beyond the powers of the board of directors acting alone, and ultra vires the bank itself. Directors have no power to perform acts not within the ordinary business of the corporation. Chicago City Ry. Co. v. Allerton, 18 Wall. 233. If a national bank is in contemplation of insolvency when the fact becomes reasonably apparent to its officers that the concern will presently be unable to meet its obligations, the Comptroller should have been notified and the shareholders of the bank would, under § 5205, have then been by him given the option either to continue the business of the bank by making good its capital stock, or to submit to liquidation under the supervision of the Comptroller. Roberts v. Hill, 24 Fed. Rep. 571. If, on the other hand, a bank is insolvent only when it is unable to meet the demands actually made upon it, then the circumstances did not authorize the directors to take the action they did; and the condition of the American National Bank was well known to the officers of the Union National Bank. Corporations, including national banks, have such powers and such powers only as are expressly or impliedly conferred upon them, and any act which is not within the powers so conferred is impliedly prohibited. Germania &c. Co. v. Boynton, 71 Fed. Rep. 797, 801; Central Trans. Co. v. P. P. C. Co., 139 U. S. 24; Cal. Nat. Bank v. Kennedy, 167 U. S. 362, 366. Argument for Appellants. 201 U.S. The power to enter into this transaction, if existing, must be an incidental power, as it is not expressly conferred. The incidental powers of national banks are defined and limited in and by 5136, Rev. Stat., and do not authorize a transaction such as the one between the banks. The power to enter into such a transaction is impliedly denied by the general trend of the laws governing national banks and the object such laws have in view. The power to enter into such a transaction is impliedly prohibited by Rev. Stat. §§ 5133, 5137, 5145, 5146, 5147, 5153, 5202, 5222, 5230, 5497 and expressly prohibited by § 5242. National banks are public corporations and the banking laws governing them are complete in themselves, provide expressly when and by whom a bank shall be liquidated, and exclude all other methods. National Bank v. United States, 107 U. S. 445; In re Mfrs. Nat. Bank, 5 Biss. 499; First Nat. Bank v. Colby, 21 Wall. 609; Hunt v. American &c. Co., 81 Fed. Rep. 532; Bank Commissioners v. The Bank of Brest, 1 Harr. Ch. (Mich.) 106, 111, 112. The fact that a contract had been executed by one party of which the other party has received the benefit, does not give the contract validity, and no action will lie on the contract, and stockholders of a bank may show the nature of the transaction, i. e., that it was not such as to impose any liability upon them. Pearce v. Madison R. R., 21 How. 441; Central Trans. Co. v. P. P. C. Co., 139 U. S. 24; Louisville &c. v. Louisville &c., 174 U. S. 552, 567; O'Brien v. Whelock, 184 U. S. 450, 490; Whitman v. Nat. Bank, 176 U. S. 559; Ward v. Joslin, 186 U. S. 142. The liability of shareholders in national banks is a restricted liability and the transaction between the banks was of such a nature that appellants are not liable for any deficit arising therefrom. Sec. 5151, Rev. Stat., is the only provision imposing liability upon shareholders of national banks; and the cases show: that the liability imposed by § 5151 is a means of securing the payment of a bank's debts at the time when |