in Wickens v. Evans (1) the agreement in restraint of trade was made to continue during the lives of the contracting parties; and no objection was taken on that ground. We cannot, therefore hold the agreement in this case to be void, merely on the ground of the restriction being indefinite as to duration, the same being in other respects a reasonable restriction. But it was urged, in the course of the argument, that there is an inadequacy of consideration, in this case, with respect to the defendant; and that, upon that ground, the judgment must be arrested. Undoubtedly in most, if not all, the decided cases, the Judges, in delivering their opinion that the agreement in the particular instance before them was a valid agreement, and the restriction reasonable, have used the expression, that such agreement appeared to have been made on an adequate consideration, and seem to have thought that an adequacy of consideration was essential to support a contract in restraint of trade. If by that expression it is intended, only, that there must be a good and valuable consideration, such consideration as is essential to support any contract not under seal, we concur in that opinion. If there is no consideration, or a consideration of no real value, the contract in restraint of *trade, which in itself is never favoured in law, must either be a fraud upon the rights of the party restrained, or a mere voluntary contract, a nudum pactum, and therefore void. But, if by adequacy of consideration more is intended, and that the Court must weigh whether the consideration is equal in value to that which the party gives up or loses by the restraint under which he has placed himself, we feel ourselves bound to differ from that doctrine. A duty would thereby be imposed upon the Court, in every particular case, which it has no means whatever to execute. It is impossible for the Court, looking at the record, to say whether, in any particular case, the party restrained has made an improvident bargain or not. The receiving instruction in a particular trade might be of much greater value to a man in one condition of life than in another; and the same may be observed as to other considerations. It is enough, as it appears to us, that there actually is a consideration for the bargain; and that such consideration is a legal (1) 32 R. R. 806 (3 Y. & J. 318). HITCHCOCK 2. COKER. [457] HITCHCOCK Consideration, and of some value. Such appears to be the case in 2. COKER. 1837. [469] [470] the present instance, where the defendant is retained and employed PICKARD . SEARS AND BARRETT (1). (6 Adol. & Ellis, 469-474; S. C. 2 N. & P. 488.) In an action of trover, it appeared that, plaintiff being the legal owner of the goods in question, they were seized while in the actual possession of a third party, under an execution against such third party, and sold to defendant: Held, that, under a plea denying plaintiff's possession, defendant might show that plaintiff authorised the sale; and that a jury might infer such authority from the plaintiff consulting with the execution creditor as to the disposal of the property, without mentioning his own claim, after he knew of the seizure and of the intention to sell. TROVER for machinery. Pleas: First, Not guilty Secondly, That the plaintiff was not possessed, &c. Issues on both pleas. On the trial before Lord Denman, Ch. J., at the London sittings after Trinity Term, 1835, it appeared that the property was taken by the sheriff of Surrey, under a fi. fa. issued against Metcalfe in April, 1834, at the suit of Hill, and was sold by the sheriff to the defendants in August, 1834. It was not disputed that the property had originally belonged to Metcalfe, and that he in fact was in possession at the time of the seizure. The plaintiff proved the execution of an indenture of mortgage, dated 15th January, 1834, between Metcalfe of the first part, and himself of the second; whereby, in consideration of 913l. 11s. 6d., paid to Metcalfe by the plaintiff, the land and house where the machinery was, together with the machinery itself, and all the right, title, and interest of Metcalfe therein, were assigned to the (1) The general principle enunciated in the judgment of Lord DENMAN is referred to, expressly or impliedly, in many other cases, of which, as among the more recent, it may suffice to mention Colonial Bank v. Cady (H. L. 1890) 15 App. Cas. 267, 60 L. J. Ch. 131, and Henderson v. Williams [1895] 1 Q. B. 521, 64 L. J. Q. B. 308, C. A.; and, as one of the most important, Freeman v. Cooke (1848) 2 Ex. 654, 18 L. J. Ex. 114.-R. C. * plaintiff, his executors, &c., subject to a proviso for redemption on payment to the plaintiff, his executors, &c., of the said sum of 913l. 11s. 6d., with interest, on the 15th of January, 1835; with a covenant that, if default should be made in payment, it should be lawful for Pickard to enter upon the messuage, &c., and take possession of the goods, &c. Notice of this deed was given by the plaintiff to the defendants, after the sale by the sheriff; and possession of the property was demanded of them, and refused. By the evidence of Hill's attorney, it appeared that, after the seizure, the plaintiff had repeatedly conversed with the witness, sometimes in Metcalfe's presence, referring to the seizure, and had never made any claim to the goods, though he stated that Metcalfe was his debtor for about 500l., and frequently consulted with the witness as to the best way of disposing of the property: that, after a negotiation for sale had gone off, the witness had advised the plaintiff and Metcalfe to try to raise 1,000l. to pay off the execution creditor, and the remainder to go to carry on the business that the plaintiff had named a party, from whom it was attempted, but without success, to obtain the money; and that the witness had told the plaintiff that the defendants were about to purchase the property. It was not disputed that the mortgage was made bonâ fide, nor that the defendants had purchased bona fide and without notice of the mortgage. The defendant's counsel applied to the Lord Chief Justice to amend the pleas by inserting a plea of leave and licence; which was refused. They then suggested that it should be left to the jury whether the plaintiff had concurred in the sale: but his Lordship was of opinion that there was no evidence of such concurrence, and directed the jury to find for the plaintiff, if they thought that the mortgage was a bona fide transaction. Verdict for the plaintiff. In Michaelmas Term, 1835, Sir F. Pollock obtained a rule nisi for a new trial. Erle and Sewell showed cause in Hilary Term last (1): The articles were in Metcalfe's possession according to the intention of the mortgage deed; there was no badge of fraud. The property was in the plaintiff, and never passed to the defendants. This is the only question open on the pleadings, (1) January 16th. Before Lord Denman, Ch. J., Williams and Coleridge, JJ. PICKARD v. SEARS. [ *471 ] no doubt being raised as to the conversion, which alone can be disputed on the first plea. Now the fact, that the plaintiff made no objection when the sale was going to take place without his knowledge, could not divest him of the property. *He was not bound to interfere. The plaintiff's consent, if material to the defence, should have been pleaded. Sir F. Pollock and Cleasby, contrà : The sale took place with the knowledge of the plaintiff, and virtually by his authority. He had full power to authorise a sale, either generally, or to a particular party; and his acts went far enough to give the authority. Then he cannot dispute that the sale was valid, and transferred the possession, so as to support the second plea. His conduct induced the attorney of the execution creditor to change the situation of the parties; and the case resembles that of admissions made, upon which the party to whom they are made acts so as to change his situation; there he who makes the admission is estopped from disputing the fact admitted; judgments of the Court of K. B. in Graves v. Key (1) and Heane v. Rogers (2). The jury should, therefore, have been asked whether the plaintiff authorised the sale. Cur, adv, vult. LORD DENMAN, Ch. J., in this Term (April 27th), delivered the judgment of the COURT: This was an action of trover for machinery and other articles, brought by a mortgagee of one Metcalfe, the former owner, against a purchaser from the sheriff, under an execution levied against the former owner. The pleas were: first, Not guilty : second, That plaintiff was not possessed of the property as his own. Sufficient evidence of a bona fide mortgage was adduced to prove that the property had been assigned to the plaintiff some *months before the execution; and no doubt was ultimately made that the property was in fact his. The mortgagor had however remained in possession, carrying on his trade, till the execution issued: and the defendant made it plainly appear that, even after the sheriff had entered, and even after the plaintiff (2) 9 B. & C. 586. (1) 3 B. & Ad. 318, n. knew that a sale was in contemplation, he had come to the premises, and given no notice of his claim; on the contrary, he called on the execution creditor's attorney, with the mortgagor, and consulted him about the state of affairs, and the course to be taken. He stated, indeed, that he was Metcalfe's creditor to the amount of 500l., but never spoke of the mortgage, or claimed the goods as his own, though the attorney told him that he had some intention to sell them. The defendant purchased bona fide, and in total ignorance that the plaintiff had any interest. The bill of sale was executed on the 12th of August, the plaintiff's first application was made in December, when he demanded the sum advanced; which being refused, he demanded the goods they were refused also. The difficulty was, to give the defendant the benefit of these facts under the pleas on the record. After I had summed up the evidence, an application to amend by introducing a plea of leave and licence was, for obvious reasons, refused. The defendant's counsel then contended that the plaintiff's conduct amounted to a concurrence in the sale, so as to make him in truth the vendor, and divest the property. I thought there was no evidence of this; and declined to take the jury's opinion, whether the facts proved it. We granted a rule for a new trial, being *desirous of considering whether this view of the case ought not to have been submitted to the jury. Much doubt has been entertained whether these acts of the plaintiff, however culpable and injurious to the defendant, and however much they might be evidence of the goods not being his, in the sense that any persons, and amongst others the defendant, would be naturally induced thereby to believe that they were not, furnished any real proof that they were not his. His title having been once established, the property could only be divested by gift or sale; of which no specific act was even surmised. But the rule of law is clear, that, where one by his words or conduct wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time; and the plaintiff, in this case, might PICKARD v. SEARS. [ *474 ] |