Preserving the forms thus required, a joint stock company may enter into any lawful contracts requisite to attain the objects for which it was established. Bearing in mind what has been said of the illegality of contracts ultra vires of the company, it will not probably be very difficult to determine whether any proposed contract is such as will bind the company with regard to the objects declared in the memorandum and articles of association. Upon such contracts the company thus incorporated may sue and be sued like any other corporation. If the company, on judgment being obtained against it, does not pay or satisfy the judgment, and execution issued thereon is unsatisfied in whole or part, the company shall be deemed unable to pay its debts (s. 80), and proceedings may then be taken for winding up secretary of a railway company, was held not to be personally liable, on a note signed by him,"J. S., Secretary"); Dutton v. Marsh, L. R. 6 Q. B. 3G1 (in which case the directors were held personally liable as the makers of a note to which the company's seal was affixed).
(k) Peruvian Railways Co v. Thames and Mersey Ins. Co., per Lord Cairns, L. J., L. R. 2 Ch. App. 617, 623, 36 L. J. (Ch.) 864, 865. See also ante, p. *374.
As to the rights of shareholders against the company, every person who has accepted any share in a company registered under this Act, and whose *name is entered in the register of members, shall for the purposes of this Act be deemed a member. The transfer of any share may be in a form provided by the
Act, and to be executed by transferor and transferee; but the transferor shall be deemed to remain a holder of his share until the name of the transferee is entered on the register, and the title of every shareholder to his shares shall be a certificate under the common seal of the company specifying the shares held by him. Finally, the amount of calls for the time being unpaid on his shares shall be deemed a debt due from the shareholder to the company (ss. 23, 31, Table A.) (l).
I have now specified the various classes of parties with regard to whose competency to enter into contracts I had any particular observations to make; and now, assuming that none of the various cases of disability which I have mentioned arises, but that the parties entering into the contract are competent by law to do so, there remains one other *very important subject to advert to, namely, the mode in which they may become parties to the contract. And this must be in one of two ways; either personally or by the intervention of an agent.
There are few branches, perhaps no branch, of the law of England, to which it becomes so often necessary to refer, as that which regulates the rights of parties under contracts made by agents. The truth is, that, as society is now constituted, the business of life has become so complicated, that "no man's individual efforts can embrace all the subjects with which he is called on to deal." Hence we are oliged to transact a variety of business and enter into a variety of engagements through the medium of agents, the precise effect of whose acts ill binding or advantaging us becomes of course a matter of the utmost practical importance. I cannot, however, attempt, in the time which remains to me for that purpose, to do more than state the general principles by which the subject (so far as relates to contracts) is regulated.
(l) It seems undesirable to introduce more fully the subject of the law of joint-stock companies within the limits of this work. For further information on that subject reference may be made to the chapter on Joint Stock Companies in the 9th edition of Smith's Mercantile Law, by Mr. Dowdeswell, where the statutes are abridged and the leading decisions arranged with singular fulness, clearness, and brevity. The student will also find great advantage in consulting on this subject the last edition of Lindley on Partnership.
Generally speaking, whatever contract a man may enter into in his own person, he may, if he think lit, appoint an agent to enter into in his behalf. There are, indeed, one or two exceptions to this rule, which arise out of the wording of certain Acts of Parliament, requiring the intervention of the principal party himself in certain contracts. For instance, a man could not appoint an agent to *sign a writing for the purpose of exempting a case from the operation of the Statute of Limitations, as 9 Geo. IV., c. 14, s. 1, required the writing to be signed by the party chargeable thereby (m). Now, however, by 19 & 20 Vict., c. 97 (Mercantile Law Amendment Act, 1856), a. 13, the signature of a duly authorized agent is sufficient in that case. Nor can a person who objects to the name of another being retained upon the list of voters in a parliamentary borough empower an agent to sign the objection for him (n), as 6 & 7 Vict., c. 18, s. 100, requires every notice of objection to be signed by the person objecting. But it seems that, unless strictly required to be signed by the principal, it is sufficient if a contract required to be in writing, be signed by an authorized agent (o).
(m) Hyde v. Johnson, 2 Bing. N. C. (29 E. C L. R.) 176; Ley v. Peter, 27 L. J. (Ex.) 239; 3 H. & N. 101.
(n) Toms, app., Cuming, resp.,7 M.&Gr. (49 E. C. L.R.) 88. See Davies v. Hopkins, 27 L. J. (C. P.) 6; 3 C. B. (N. S.) (91 E. C. L. R.) 376.
(o) Morton v. Copeland, 24 L. J. (C. P.) 169; 16 C. B. (81 E. C. L. R.) 517.
But, generally speaking, whatever contract a man may lawfully enter into himself, he may appoint an agent to enter into for him. There is, however, another extensive and important exception to this rule, which takes place when a man is himself an agent (p). He cannot, in this instance, appoint an agent to transact the matters entrusted to his own *agency. The exception evidently arises from the very nature of his own appointment; for it is one thing to trust a man's discretion to transact your affairs and for which you may know him to be quite competent, but altogether another and a different thing to trust his discretion to select a stranger to transact your affairs at your responsibility. The maxims of law, therefore, are-"Delegatus non potest delegare" and "Vicarius non kabet vicarium"-maxims which, it is obvious, are necessary for the principal's protection, but which, it is clear, cannot apply where you give your agent power to appoint a deputy either expressly (q),or by implication. For such a power may be implied, either from the conduct of the parties to the original contract of agency, the usage of trade, or the nature of the particular business which is the subject of the agency; or again, where in the course of the employment, unforeseen emergencies arise which impose upon the agent the necessity of appointing a substitute (r).