(f) Att.-Gen. v. Great Eastern Ry. Co , 5 App. Cas.473; 49 L. J. (Ch.) 545. (g) See on the subject of contracts ultra vires of companies, Lindley on Partnership, Bk. ii. c. 1. s. 2, pp. 249-253, 4th ed.; see, too, Brice on Ultra Vires. 416 form of contracting; but as companies registered under this Act are incorporated by sect. 18, the modes by which a corporation contracts were in general applicable to them (h). The powers, however, of companies registered under the Companies Act, 1862, as to the manner of contracting have been greatly enlarged by the Companies Act, 1867 (30 & 31 Vict., c. 131), s. 37, under which section contracts on behalf of any such company may be made as follows:"(1.) Any contract, which, if made between private persons, would be by law required to be in writing, and if made according to English law to be under seal, may be made on behalf of the Company in writing under the common seal of the Company, and such contract may be in the same manner varied or discharged: "(2.) Any contract, which, if made between private persons, would be by law required to be in writing, and signed by the parties to be charged therewith, may be made on behalf of the Company in writing, signed by any person acting under the express or implied authority of the Company, and such contract may in the same manner be varied or discharged: "(3.) Any contract, which, if made between *private persons, would by law be valid, although made by parol only, and not reduced into writing, may be made by parol on behalf of the Company by any person acting under the express or implied authority of the Company, and such contract may in the same way be varied or discharged." The section concludes with declaring "that all contracts made according to the provisions
(h) See South of Ireland Colliery Co. v. Waddle, L. R. 3 C. P. 463, 4 C P. 617 (Ex. Ch.); S. C, 37 L. J. (C. P.) 211, 38 lb. 338, ante, p. *377.
27 417 therein contained shall be effectual in law, and shall be binding upon the Company and their successors and all other parties thereto, their heirs, executors, or administrators, as the case may be."
By s. 55 of the principal Act, the company by instrument under their common seal, may empower any person as their attorney to execute deeds in their behalf anywhere out of the United Kingdom, and any deed so signed by the attorney on behalf of the company and under his seal shall be as binding as if under the company's seal.
By s. 47 of the same Act, bills of exchange and promissory notes shall be deemed to have been made, accepted, or endorsed on behalf of any company under this Act, if made, accepted, or endorsed, in the name of the company by any one acting under their express or implied authority, or if made, accepted, or endorsed by or on behalf of the company by any person acting under the authority of the company, and will be binding on them. Where a promissory note was made in this form: "Three *months after date we jointly promise to pay to F. G. or order £600 for value received in stock, on account of the London and Birmingham Iron and Hardware Company, Limited. Payable at the London Joint Stock Bank, Princes Street, Mansion House.-William Melrose, H. W. Wood, John Harris, Directors; Edwin Guest, Secretary,"-the Court considered that the note was made in the name of the company within the similar provisions of 19 & 20 Vict., c. 47, s. 43 (now repealed), and was therefore binding on the company, and not on the directors who signed it (i). Still, it must not be understood that either the company, as it is called (s. 79). The result of these as to the liability of the existing shareholders is, that they shall upon the winding up be liable to contribute to the assets of the company, to an *amount sufficient to pay its debts, and the costs, charges, and expenses of winding it up; but if the company is limited, each shareholder will be liable to contribute to the assets of the company to the amount, if any, which may remain unpaid on the shares held or the amount guaranteed by him (ss. 38, 90, 134). Moreover, no person who has ceased to be a shareholder for the period of one year prior to the commencement of the winding up, shall be liable to contribute to those assets, nor shall any past member be liable in respect of any debts of the company contracted since he ceased to be a shareholder (s. 38). But if the company being wound up be limited, no past or present member can be made to contribute more than the amount unpaid on his share, or the amount he has guaranteed; nor, whether the company be limited or not, shall any past member be liable to contribute, unless the existing members are unable to satisfy the contributions required. The liability of any person to contribute to the assets of a company registered under the Act, in the event of its being wound up, is to be deemed to create a debt of the nature of a specialty accruing due from such person at the time when his liability commenced, but payable at the times when calls shall be made for enforcing such liability (s. 75).
(i) Lindust; Melrose, 27 L.J. (Ex.) 326; 3 H. & N. 177. See Smith v. Johnson, lb. 363; 3 H. & N. 222; Penrose v. Martin, 28 L. J. (Q. B.) 28; Alexander v. Sizer, L. R. 4 Ex. 102; 38 L. J. (Ex.) 59 (where J. S, the 418 by the above 47th sect, or elsewhere by the Act of 1862, is the power of accepting bills of exchange or issuing negotiable instruments given to companies as an incident of their incorporation under that Act. The Act leaves the power of a company so incorporated, with regard to negotiable securities, to be determined upon the proper construction of the memorandum and articles of association. There may, under the Act, be companies which *communicate to their directors the power to bind the shareholders by negotiable instruments. There may be companies which do not communicate any such power. If the power is to be given to the directors it must be given by the memorandum, and articles of association (k).