Page:Federal Reporter, 1st Series, Volume 3.djvu/195

 188 FEDERAL REPORTER. �view of the constitution or law can he be considered a Htigant party ; both look to things, not names : to the action in con- troversies and suits, and not to the mere forms or inactive instruments used in conducting them, in view of some positive law." �Upon the authority of these and other similar cases I con- clude that, where jurisdiction is dependent upon the parties to the suit, we are to look to the real and not to the merely nominal or formai parties. Where suit is brought against a national bank, by virtue of the statute under consideration, it must appear that the bank is a real active party to the liti- gation in order to maintain the jurisdiction. If the case stood upon the original bill and answer I should entertain grave doubts as to jurisdiction. It eould, in that case, be upheld, if at ail, only upon the ground that the proceeding, if conducted to a termination, -vrould resuit in a jiulgment against the bank. �3. But the bank itself bas chosen, by its cross-bill, to invoke the aid and protection of this court as a court of equity, and I will now consider whether it haa, in this way, brought the controversy within the jurisdiction, �The circuit courts have jurisdiction of suits instituted by national banks in equity as well as at law ; and the question to be determined is whether the cross-bill in this case may be regarded as in itself constituting a suit within the meau- ing of the equity rules and praetice prevailing in this court. The cross-bill is filed by the bank against ail the claimants of the fund in question, and it sets out the facts already re- ferred to in this opinion. It also avers that plaintiff in the cross-bill is a national bank, organized and existing under the national banking act approved June 3, 1864, and amenda- tory acts, doing business at Denver, Colorado, within this district. It sets forth the fact of the filing of the original bill in this case, and the substance of the allegations therein, as well as a statement of the conflicting claims and demands upon said fund, of Posa and Hunter on one aide and Bissell on the other. Concerning the fund in dispute, the cross-bill Bets forth that "the same is now in the bank of your orator, ����