charged in the declaration were published at a time anterior to the day laid in the declaration, and also that the words had been spoken in more than two different conversations. Surely in this there was no error. Having once proved their cause of action as charged in the declaration, it was perfectly competent and proper for them to show, in aggravation of the damages, that the slander had been repeated at any time within the statute of limitations, even after the commencement of the suit.

It has been contended in the argument, that some instructions asked for by the appellant's counsel were improperly refused; but upon examination, it is found that exceptions to them, if made, have not been saved in the bill of exceptions, and, therefore, if they had been improperly withheld, it could not avail the party here.

The court is of opinion that there is no error in the record. The judgment of the circuit court is affirmed with costs. Judgment affirmed.

WILSON, C. J., and LOCKWOOD and CATON, JJ., did not sit.

MALICE IMPLIED FROM SPEAKING OF ACTIONABLE WORDS: See Estes w. Antrobus, 13 Am. Dec. 496; Gilman v. Lowell, 24 Id. 96; Faris v. Starke, 33 Id. 536; Byrket v. Monohon, 41 Id. 212, and notes to those cases.

SPEAKING OF SAME WORDS AFTER ACTION BROUGHT, or of actionable words having reference to the slander complained of, admissible as evidence of malice: See Miller v. Kerr, 13 Am. Dec. 722; McIntire v. Young, 39 Id. 443. See also Root v. Lowndes, 41 Id. 762. To this position the principal case was cited in Stowell v. Beagle, 79 Ill. 528.

EXPLANATION OF SLANDEROUS WORDS GIVEN at the Time, so as to take away their slanderous import, is admissible. But the explanation must be given before the parties separate: Trabue v. Mays, 28 Am. Dec. 61.

IF PART OF A CONVERSATION, DECLARATION, OR ADMISSION IS ADMITTED in evidence, the adverse party is entitled to the whole of it: Harrison v. Laverty, 13 Am. Dec. 283; Clark v. Smith, 25 Id. 47; Gordon v. Preston, 26 Id. 75; Field v. Hitchcock, 28 Id. 288; Mumford v. Whitney, 30 Id. 60; Brown v. Commonwealth, 33 Id. 263.

EVIDENCE OF RUMOR OF CHARGE IS INADMISSIBLE in evidence to mitigate the damages: Owen v. McKean, 14 Ill. 460, citing the principal case. See also Sanders v. Johnson, 36 Am. Dec. 564, and cases collected in note.

CONTRACT IN RESTRAINT OF TRADE IS NOT ILLEGAL because the duration of the restraint is indefinite in point of time, if in other respects it be partial and reasonable, consideration being had to the nature of the business, and the condition of the country.

BURDEN OF PROOF IS GENERALLY ON THE PARTY holding the affirmative.

DEBT. The opinion states the facts.

J. Brownlee, for the plaintiffs.

T. J. Sample, for the defendants.

By Court, BLACKFORD, J. This was an action of debt brought by Bliss and others against Bowser and another. The suit was founded on the following sealed note: "One year after date, we, or either of us, promise to pay Henry Bliss, Allison, and Ellis, 150 dollars, value received; provided, the firm of Bliss, Allison, and Ellis do not make, or sell, or trade any fanning-mills within 30 miles of Marion, south of the Wabash river. 30 July, 1840. Jacob C. Bowser (seal). James Story (seal)." The declaration avers that the plaintiffs have not, at any time since the making of said note, made, sold, or traded any fanning-mills within thirty miles of Marion, south of the Wabash river, with the exception of four, the right to sell which four was especially reserved to the plaintiffs by a certain article of agreement entered into by the plaintiffs and defendants on the same day with said note.

The article of agreement referred to in the declaration, and

executed by the plaintiffs and defendants, is substantially as follows: "Article of agreement made and agreed upon this day, between Henry Bliss, James J. Allison, and John W. Ellis, of the one part, and Jacob C. Bowser and James Story of the other part. The party of the first part bargain and sell their right of making, selling, and trading fanning-mills south of the Wabash river, within thirty miles of Marion, in Grant county. And whereas the party of the second part have given their obligation to the party of the first part for one hundred and fifty dollars, payable one year from this date, provided said party of the first part comply with the agreement after this date, with exception of four now on hand. If the party of the first part do make or sell any within the distance above mentioned, the obligation for one hundred and fifty dollars shall be void and of no effect. The party of the first part hold themselves liable for twenty dollars for every fanning-mill they may sell or trade within the bounds above mentioned, to the party of the second part. Dated the 30th of July, 1840."

The defendants pleaded as follows: 1. Nil debet. 2. The plaintiffs did sell and trade divers fanning-mills within thirty miles of Marion, south of the Wabash river, to divers persons. 3. The plaintiffs did sell five fanning-mills within thirty miles of Marion, south of the Wabash river. 4. There is no such article of agreement as mentioned in the declaration. General demurrer to the second plea, and the demurrer correctly sustained. Replication in denial of the third plea. The fourth plea, not being sworn to, was correctly set aside on motion of the plaintiffs. On the trial of the issue on the third plea, the plaintiffs gave in evidence the writing obligatory and the article of agreement above described, and proved that they were partners. It also appeared that the defendants were partners. There was no other evidence. The court instructed the jury, that it lay on the defendants to prove, that the plaintiffs had sold more than four fanning-mills south of the Wabash river, within thirty miles of Marion. The defendants excepted to this instruction. Verdict for the plaintiffs. Motion for a new trial overruled, and judgment on the verdict. The first error assigned is, that the being in restraint of trade. But this objection is unfounded. There is this distinction on the subject: Where the contract is for the general restraint of any business, it is illegal; but it is otherwise, if the restraint be partial and reasonable: Mitchel v. Reynolds, 1 P. Wms. 181, the leading case on the subject.

contract was illegal as

There must also be a valuable consideration for the contract; such a consideration as is necessary in other contracts: Hitchcock v. Coker, 6 Ad. & El. 438. In the case before us, the restriction, as it regards the space, is not unreasonable, considering the nature of the business and the newness of the country. The circumstance that the restraint is indefinite in point of time, does not invalidate the contract. This objection-the want of limit as to time has been recently very fully discussed in the English courts. In the king's bench, the objection was sustained; but the decision was reversed in the exchequer chamber. In the last-named court, Tindal, C. J., said, that in many of the cases cited, the restriction had been held good, though it continued for the life of the party restrained. On the other hand, no case had been referred to, where the contrary doctrine had been laid down. He cited the cases of Bunn v. Guy, 4 East, 190; Chesman v. Nainby, 2 Stra. 739; and Wickens v. Evans, 3 You. & Jer. 318, to support the position, that the agreement was not void merely on the ground that the restriction was indefinite as to duration, the same being in other respects a reasonable restriction: Hitchcock v. Coker, above cited.

It is also assigned for error, that the instruction to the jury is contrary to law. It appears to us that the instruction is unexceptionable. The note and the article of agreement having been made at the same time, formed one contract; and the question, so far as the instruction is concerned, was, whether the plaintiffs had afterwards sold more than four mills within the space described in the agreement? The affirmative of that question was with the defendants, and the burden of proof, therefore, according to the general rule in such cases, was upon them. Ei incumbit probatio qui dicit, non qui negat: 1 Stark. Ev. 418. It was scarcely possible for the plaintiffs to prove the negative of the issue, viz., that they had not sold the mills, which they were not to sell; but if they had sold them, the sale might be ascertained and proved by the defendants. The negative, when it involves a criminal omission by the party, must be proved: Williams v. The East India Company, 3 East, 192; but that is an exception to the rule, and does not affect this case.

Taking the note and article of agreement together, the evident meaning of the contract is, that the plaintiffs were to have the money for which the note was given, unless they should sell more than four mills within the space specified. And there being no evidence that the plaintiffs had made such sale, they must be entitled to recover.

The judgment is affirmed, with five per cent. damages and costs.

CONTRACTS IN RESTRAINT OF TRADE, WHEN INVALID: See this general subject discussed in the note to Pike v. Thomas, 7 Am. Dec. 741. Contracts in general restraint of trade are void on the ground of public policy; but where the restraint is limited as to the locality in which it shall operate, and is otherwise reasonable, the contract will be upheld: Pierce v. Fuller, 5 Id. 102; Grundy v. Edwards, 23 Id. 409; Palmer v. Stebbins, 15 Id. 204; Alger v. Thacher, 31 Id. 119, and note.

THE PRINCIPAL CASE IS CITED in Cook v. Johnson, 47 Conn. 178, to the effect that the mere fact that the duration of the restriction as to time is indefinite, will not of itself avoid the contract if it is limited as to place, and is reasonable and proper in other respects; and in Linn v. Sigsbee, 67 Ill. 81, to the effect that the reasonableness of the restriction is a question for the court to determine.

MCKINNEY V. HARTER.

[7 BLACKFORD, 385.]

AMENDMENT OF DECLARATION, Made DURING TRIAL, which does not affect the merits, or prejudice the defendant, is no ground for a continuance. PROMISSORY NOTE, IN WHICH PAYEE IS REFERRED TO BY DESCRIPTION, may be sued on by him in his individual name.

ASSUMPSIT. The opinion states the facts.

A. Davison, for the appellant.

J. Ryman, for the appellee.

By Court, BLACKFORD, J. Assumpsit brought by Joseph Harter on a promissory note. The declaration alleges that the defendant made his promissory note, commonly called a due bill, by which he acknowledged himself indebted to the plaintiff, by the name and description of "The estate of Thomas Eager, deceased," the plaintiff being the administrator of said estate, in the sum of, etc.; and then and there delivered the same to the plaintiff; by means whereof, etc. Plea, non assumpsit. The declaration, as originally filed, contained the name of Thomas Edgar, and not that of Thomas Eager. After issue joined, and before the trial, the plaintiff, by leave of the court, amended the declaration by inserting the name of Thomas Eager instead of that of Thomas Edgar. In consequence of that amendment, the defendant moved for a continuance of the cause; but the motion was overruled. On the trial, the plaintiff offered in evidence the following writing: "$136.50. For value received, due to the estate of Thomas Eager, deceased, one hundred and