Cheale v Kenward
| Jurisdiction | England & Wales |
| Judgment Date | 24 July 1858 |
| Date | 24 July 1858 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 1179
BEFORE THE LORD CHANCELLOR LORD CHELMSFORD.
S. C. 27 L. J. Ch. 784; 4 Jur. (N. S.), 576, 984; 6 W. R. 810.
[27] cheale v. kenward. Before the Lord Chancellor Lord Chelmsford. July 21, 24, 1858. [S. C. 27 L. J. Ch. 784; 4 Jur. (N. S.), 576, 984; 6 W. E. 810.] An agreement to accept a transfer of railway shares on which nothing had been paid : Held, not nudum pachtm, but a contract which may be specifically enforced in equity. This was an appeal from the decision of the Master of the Eolls, allowing a demurrer. The bill stated an Act of Parliament authorizing the construction of a railway from Lewes to Uckfield, and that the Plaintiff, who was a landowner near Uckfield, had, before the passing of the Act, agreed to take shares in the company upon the understanding that the site for the station at Uckfield should be reconsidered. That, accordingly, he took and was the registered proprietor of ten £50 shares, on which however he had not paid anything. That upon the company declining to reconsider the site of the station, he expressed a wish to dispose of the shares; and that the Defendant, another shareholder in the company, knowing that nothing had been paid upon the shares, and in consideration of the Plaintiff agreeing to transfer them to him, agreed to accept and execute a transfer to himself of them, and to do all acts necessary to relieve the Plaintiff from liability in respect of the shares, but refused to perform the agreement. The prayer was, that the agreement might be specifically performed, that the Defendant might execute a proper transfer and pay the deposit and all the calls due or to become due on the shares, together with the costs occasioned by the non-performance of the agreement. The Master of the Eolls allowed the demurrer, on the ground that the agreement could not be enforced for want of consideration and of mutuality. Mr. Lloyd and Mr. Pole, in support of the demurrer. This is merely nudum pactwi. The only considera-[28]-tion relied upon is the obligation on the part of the Defendant to relieve the Plaintiff from liability in respect of the shares. But this is no distinct consideration. It is a consequence merely of the contract itself. [THE lobd chancellor referred to Haigh v. Brook-(10 A. & E. 309), and Walter v. Bartlett (18 C. B. 845).] In those cases a right had been given up. The consideration must be something dehors the agreement, not as in this case, or as...
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