By the Court,
Weiton, 0. <LThis case was coinmenced by the defendant in error (Oorwith) against the State Bank of Illinois by attachment, and was prosecuted under the provisions of an Act of the Legislature of this state, passed on the 25th day of March, 1854. By this act any person having a demand not sounding’in tort, against any foreign corporation which has ceased to act as a body corporate in whole or in part, from any cause whatever, may commence and prosecute to final judgment any appropriate action, and may enforce satisfaction of such debt out of any property which would have belonged to any such corporation if it had not ceased to act as aforesaid.
This act contains other provisions relating to the prosecution of suits against these corporations, hut we do not‘deem it material to consider them, in order to determine the questions presented hy this record.
It appears that a motion to dismiss the case for various reasons was made in the circuit court, and by the court overruled.
At the trial, the plaintiff offered in evidence a certificate signed by T. Mather, the president of the bank, and by N. H. Ridgeley, cashier, to the effect that the certificate for fifty dollars would be received at all times by the bank in payment of any debt due the hank, and for any property which the bank might have for sale, and that it would entitle the bearer to the proper proportion of all dividends which might *576Re made to tlie creditors of tlie Rank. Across the face of the certificate, are written the following- words: “ N. H. Purple, dividend 16-f per cent, paid 15th August, 1851.”
It was admitted by the defendant that the certificate was issued for a balance of the Rills of the hank surrendered by the holder in pursuance of an act of the legislature of the state of Illinois hereinafter noticed, after receiving his dividend of the specie of the Rank, as required by the said act. A copy of the act of the legislature of Illinois in question, was offered in evidence by the plaintiff in connexion with the certificate. The act provides for the appointment of a bank commissioner, and requires the bank to go into liquidation within thirty days after its passage ; it also provides that the bank shall pay out all its specie to its creditors pro rata except fifteen thousand dollars. The act also provided that the Rank should make out and deliver to each, creditor a certificate signed by the president and cashier for the residue of his debt, which certificate should be received in payment of any debt due the bank, and also in payment for any real or personal estate purchased of the bank, or for the redemption of any land purchased, or to be purchased by the bank on execution. The act further provided that every twelve months after the first dividend, the bank or the receiver should take an account of the liabilities of the bank and pay out fro rata to bill, and certificate holders of said bank — stock holders excepted- — -the specie that might be on hand. The act further provided that the bank should issue no notes for circulation, -and should do no acts usually done by banks, except to wind up its affairs, collect its debts and pay its creditors.
The act provided for the appointment of officers and agents to carry its provisions into effect, and contained many provisions which appear to be all intended to wind up the affairs of the bank, and to distribute its property equitably among its creditors, who were required before they received the certificates above mentioned to deliver up to the bank all their evidences of debt against it. It appeared that this act of the legislature of Illinois was assented to by the bank.
*577Tlie defendant objected to this evidence, but the judge overruled the objection, and the defendant excepted.
The plaintiff then offered in evidence two hundred and twenty-one certificates like the one above mentioned, on each of which there was the same endorsement, that 16 2-3 per cent, had been paid. To the introduction of this evidence the defendant objected, but the judge overruled the objection and permitted the evidence to go to the jury. To this ruling the defendant excepted.
It appears from the bill of exceptions that the judge instructed the jury that the certificates entitled the plaintiff to recover. To this instruction the defendant excepted.
The jury gave a verdict for the plaintiff.
We are of opinion that the ruling of the judge was erroneous. The effect of the act of the legislature of Illinois above alluded to, was to put the bank in liquidation and to wind up its affairs. In effect it took from the bank the control of its property and applied it ratably and equitably to the payment of its debts, and operated like an assignment of it for thatpurpose. We will not say that the creditors of the bank who did not assent to the act were bound by it, but those who like the bank did assent to it, cannot now pursue their remedy against the bank, except in a way consistent with its provisions.
As between the bank and those of its creditors who assented to it, the act of the legislature became a contract, which must be the measure of their rights and duties.
It appears that the original holder of these certificates received his proportion of the specie belonging to the bankunder the act, and also 16 2-3 per cant, of the sum for which these certificates were given.
This sum was also received in accordance with the act and pursuant to its provisions.
This is conclusive evidence that the owner of these certificates assented to the act of the legislature and became bound by it. He must therefore be held to prosecute his claim against the bank in the way which the act provides.
*578Now it appears that the act contains minute provisions as to the manner in which the property, of the hank is to he converted into money, for distribution among its creditors, and it appears to have been supposed that a number of years would be required to accomplish this object.
These arrangements may be void as against those creditors of the bank who did not assent to them, on the ground that their effect is to hinder and delay the creditors in the collection of their debts, but this cannot be relied upon by those creditors who have assented to the act, for the purpose of enabling them to set aside a contract into which they have voluntarily entered with the bank.
Those creditors who have availed themselves ofthese arrangements, and have in pursuance of the act received their proportion of the property of the bank, cannot now be allowed to say, True, we have proceeded under the act, and have surrendered our evidences of debt against the bank, have taken our certificates, and received our proportion of the property of the bank, bxit now we claim the right to sue the bank and collect our debts out of any property belonging to the bank which we can find. This would be contrary to the plainest rules of morality and the soundest principles of law. (Hampshire vs. Franklin, 16 Mass. R. 86.)
It is true that an agreement not to commence a suit on a demand for a given time will not defeat an action commenced before the expiration of the term fixed in the agreement, but the contract contained in the act of the legislature of Illinois between the bank and the defendant in error, and the acts of the parties under it, are much more than such an agreement. By his assent to the act, the defendant in error not only agreed that he would take his dividends pro rata with the other creditors of the bank, as they should be made under the provisions of the act, but that the property of the bank should be converted into money for the purpose of making the payments to the creditors in the manner provided for in the act. And his conduct in receiving his proportion of the property of the bank *579which had been converted into money, shows a partial performance of the contract by the bank and the defendant in error. To permit the latter now to repudiate this contract and collect his debt as though the contract had no existence would, as we have before stated, be contrary, as well to the rules of morality as the principles of law.
The judgment of the court below must therefore be reversed and a new trial ordered.