TERRY

v.

ANDERSON

Mr. Chief Justice Waite delivered, the opinion of the court.

In Terry v. Tubman, 92 U. S. 156, we decided that where the charter of a hank contained a provision binding .the individual property, of its-stockholders for-the ultimate redemption of its bills in proportion to the number of shares held by them respectively, the liability-of the stockholder. arose when the bank refused or ceased to redeem, and was notoriously insolvent; and'that when such insolvency occurred prior to June 1, 1865, ah action against' a'stockholder not -commenced by Jan. 1, 1870, was barred-by the. Statute of Limitations-of Georgia of March 16, 1869. That act, as recited in', its preamble, was passed on account of the confusion that had “ grown oufof the distracted condition' of affairs during the late war,”." and substantially barred suits upon all actions which accrued before the close of the war, if not' commenced by the first day of January, 1870, .

This is a suit to enforce the liability of the stockholders of a. bank, under, a provision .of the charter similar to that considered in Terry v. Tubman; and it is expressly averred in the bill that the bank stopped payment on the 20th of February, 1865, and never resumed. -The affairs of. the bank were closed up under an assignment made July 9, 1866, the proceeds of which paid only a small, percentage upon its liabilities. The case is thus broúght directly within our former ruling; but it is insisted that the act of 1869 is unconstitutional, because it impairs the obligation under which the complainants. claim, and, as that question was not directly passed upon in the other case, we areásked to consider it now. The argument is, that as’the statute of limitations in force,when the liability of. the defendants Was incurred did not bar an action .until the expiration.of' twenty .years from the time "the action accrued, a statute-passed subsequently reducing the limitation impaired the contract,; and was consequently void.

This court has often decided that statute? of limitation affecting existing rights - are not unconstitutional, if ,a reasonable time is given for the commencement of an action before the bar takes effect. Hawkins v. Barney, 5 Pet. 451; Jackson v. Lamphire, 3 id. 280; Sohn v. Waterson, 17 Wall. 596; Christmas v. Russell, 5 id. 290; Sturges v. Crowninshield, 4 Wheat. 122. It is difficult to see why, if the legislature may prescribe a limitation where none existed before, it may not change''one which has already been established. The parties to a' contract have no morp-a vested interest in-a particular limitation which has been fixed, than'they have in an unrestricted right to sue.. They have no more a vested interest in:>the"time"for the commencement of an action than they-have' in thé form of the action to be commencedand as to the-forms of action or modes of remedy, it is well settled that the legislature to ay change them at its discretion, provided' ádéquate means of enforcing the right remain.

In all such cates, the question' krone of reasonableness^ and we have, therefore,'only to consider whether the. time allowed in this'statute is, under all the, circumstances, reasonable.- Of that the legislature is primarily'the judge; and wé cannot over-, rule the decision of that, department of .'the government, upless' a palpable erf or has been committed; •. Ih judging Of that;! we' must place ourselves in the position of the legislators, and must 'measure the time of limitation "ip hhe midst'of the. circum-: stances which surrounded them, as nearly as possible; for what is reasonable in a particular case depends upon its..particular facts. assignees to close up the assignment, they proved their claims, and the amount due them was found for the purposes of a dividend. The finding was-sufficient for the, purposes of distribution; but it has none.' of the characteristics of a judgment or decree, to be enforced as against anything but the fund which • the court'was then administering.

We see nothing to take this case out of the operation of the decision ’ in Terry v. Tubman, and the decree of the Circuit Court is therefore Affirmed;

At a subsequent day of the term, a petition for rehearing was filed.

Mr. Chief Justice Waite delivered the opinion of the • court.

In this petition it is suggested that the provision of the [*636] charter of the Planters’ Bank, in respect to. the liability of subscribers to the capital stoek for the payment of the balances due- upon their subscriptions, is substantially the same as that passed upon in Cherry v. Lamar, and that consequently; under-the ruling in' that case, the Statute of Limitations is no bar to this action for the recovery of balances due. This does not appear either in the record or in the voluminous printed , arguments filed at the hearing. If it was mentioned in the oral argument, it did not attract our attention.

.' But.upon the facts as they are now stated the result will not be. changed.. The liability of the stockholders upon their unpaid subscriptions is that of debtors to the bank. Ogilvie v. Knox Insurance Co. et al., 22 How. 380. Consequently the balances now in cqntroversy passed to the assignees under the assignment, which was “of all the property, estate, credits, and assets of -the” bank.. The-liability of a stockholder for his subscription.is entirely different from that imposed by the. charter “for the ultimate redemption of the bills” issued by the bank. The subscription inures to the benefit of all creditors, while the individual liability under the charter operates only in favor of billholders.

Since the debts due upon the subscriptions passed to the assignees, the appellants, being parties to the suit instituted by them to close their trust, had the right to insist that this part of the assets should be reduced to possession, - and distributed before the trust was blosed and the assignees were discharged.

Ordinarily, a creditor must put his .demand into judgment against his debtor and exhaust his remedies at law before he can proceed in equity to subjfect choses in actiqn to its payment. To this rule, however, there are some exceptions ; and we are not prepared to say that a creditor of a ’dissolved corporation may not, under certain circumstances; claim to be exempted from its operation, If he can, however, it is upon the ground that the ..assets of the corporation constitute a trust fund which will be administered' by a court of equity in the absence óf a trustee; the principle being that equity will riot permit a trust to fail for want- of a trustee. But here, there was a trustee invested with ample poWers to collect arid dispose of all the assets belonging, to the alleged trust fund. In a suit to which [*637] these appellants were parties one court of equity has found-that. this trustee has fully executed,his trust, and that the fund is exhausted. That decree is a bar to' any further proceeding in equity by .them, as creditors of the bank before judgment, for the purpose of securing the administration of the same trust. If there are assets which the trustee did not reach,, the appellants are remitted to their remedies, after judgment against the bank, to subject equitable assets to the payment of their, demands. We have seen, in the former opinion filed, tha,t they do not now. occupy the position of judgment creditors.

The other questions presented by the petition- for rehearing have already been sufficiently considered. A liability by statute is as much the subject of remedial legislation as a liability by contract, unless the remedy enters into and forms part of. the obligation which the statute creates. Such, we think, is not the Case here. - Petition overruled.

Note. — In Terry v. Coskery, error to the Circuit Court of the United States for the Southern District of Georgia, which was argued at the same time as was the preceding case by Mr. Harvey Terry and Mr. William Stone for the plaintiff, in error, arid by Mr. W. H. Hull for the defendant in error, Mr. Chief Justice Waite', in delivering the opinion of the court, remarked: “ There is nothing to distinguish this case in principle from that, of Terry v. Tubman, 92 U. S. 156, and that of Terry v. Anderson, supra, p. 628.” Judgment affirmed.