which are original,—that is, for the debts, acts, or defaults, of the party himself who enters into them,-the consideration is not required to be expressed in them, but may be proved by evidence; they can never, however, be enforced, unless founded upon valuable or sufficient consideration (except in the case of bills of exchange and promissory notes in the hands, if holden for valuable consideration, as stated in page 50;) and the burden of proving adequate consideration is thrown upon the party seeking to recover the amounts due, or claimed to be due, under them, if the party sued impeach the consideration or title, he being at liberty to show that there was no consideration; or, if any, that it was illegal: and though a consideration may be expressed in such contract, (which expressed consideration would be valid,) yet it is in the power of a defendant to show that such was not, in fact, the consideration; and that the real consideration, or a part of it, was illegal.

Illegal consideration may be thus defined :-The doing any matter or thing which is prohibited by law, or declared unlawful; or if a penalty be attached by law to the performance of such matter or thing, though no prohibition be declared in such law. Such act or thing is illegal; and is no consideration, or, rather, is an illegal consideration: and any contract entered into for or about any such matter or thing is void. As, for ex ample

An agreement or undertaking to pay a sum of money in consideration of procuring an illegal marriage, or in consideration of doing, or aiding, or assisting in doing any act which is unlawful, is void.

VERBAL CONTRACTS.

These are either express or implied.

By express contracts are meant those wherein nothing is left to be implied or supposed, but the terms of which are fixed and expressed by the parties to such contracts, being created by the words of such parties.

As, if A undertakes to perform a certain act, as to build a house for a given sum, this is an express contract.

By implied contracts are meant such wherein the terms thereof really exist, though no expression of assent thereto, or adoption thereof, has been given by the contracting parties; it being supposed by the law to have been their meaning and intention to make those terms; and, therefore, the law implies such. For example

If A employs B to build a house, for which B is to be paid a fair and reasonable sum, it is not sufficient that B performs his part of the contract by running up, in an improper and unworkmanlike manner the four walls, and other necessary parts of the building; in the absence of all agreement on the subject, there is an implied contract on his part to build such house in a proper and workmanlike manner. This is an implied contract. Again, on the indorsement of a bill of exchange, it is implied that, if the drawer or acceptor do not pay the amount of it to him to whom it is indorsed, the indorser will pay it on having due notice of its non-payment.

EXPRESS CONTRACTS.

Where there is an express contract no different contract can be implied; the courts of law dealing with an express contract in the same manner as if it had been reduced to writing, with this difference, that every verbal contract is open to objection, and to be opposed by parol evidence, that is,

evidence by word of mouth. A verbal contract stated by one party to have been made in certain precise terms may be denied by the other side to have been so made, and though truth may ultimately prevail, (we say "may," for it is not possible always to arrive at the truth; and if the truth cannot be arrived at, and some decision must be come to, that deci sion will be made according to what is proved, and that will be taken to be the truth, though possibly it may not be,) yet there is a possibility of difficulty and doubt in all verbal contracts; and, therefore, they cannot, even though express, be reduced to the same certainty as written contracts.

It may be laid down, that every contract or engagement entered into between two or more parties, in which they themselves provide for and fix, though verbally, the terms and conditions of the contract or engagement, without leaving any part of it to implication, or to be supplied by presumption of law, may be called express.

And some contracts, though express, may involve, in addition to the express contract, an implied one; but such implied contract cannot be different, or contrary to, or inconsistent with, the express contract. For example

In the instance before stated of a builder engaging to build a house for a given sum; this is an express contract, and this further implied contract is involved therein, though not expressed, (if the consideration be fair and reasonable,) that he shall do the work in a proper and workmanlike man

ner.

IMPLIED CONTRACTS.

These have arisen from the complicated relations of society, and have been dictated by justice and reason; each member of society being bound by the rules formed by the community of which he may be a member. The law has therefore implied that, where no express contract is entered into between parties, but yet a contract subsists, each of those parties shall perform what duty and justice requires; as, for example,

If A purchase goods of a tradesman without stipulating for the price, the law implies an agreement and promise on his part, to pay the real value of those goods.

Or if a carrier, in consideration of payment, takes from any house a parcel to be delivered to another person, the law implies that he undertook to take care of such parcel, and if, through his negligence, the parcel be lost, he is liable to pay for it. The above are familiar examples of implied contracts; but the numerous and complicated nature of implied contracts, prevents more than a cursory notice of them here: they may be thus briefly stated.

When one person employs another in any capacity to work or labor, or transact business, or do any matter or thing for and on his behalf, without any agreement as to the amount of pay or remuneration, the law implies a promise and undertaking to pay a reasonable compensation; and, in return, the law implies an undertaking, on the part of the person employed, to do the work or labor, or transact the business for such other party, in a proper and business like manner.

If money has been received belonging to another without any liability subsisting, or reason assigned, or consideration for it; or if paid by mistake, or if laid out by one party for and at the request of another; the

law implies, in the former cases, a promise to account for the money so received; and, in the latter, a promise of re-payment.

Where a person sets up as, and undertakes the duties or trusts of any office, or situation, or employment, such as a public officer, an attorney, carrier, wharfinger, factor, farrier, or the like, the law implies, on the part of all such parties, a contract with those who employ them to use due care, diligence and skill; and to act with honesty and integrity in their several offices or employments; and any loss or injury arising to those who may employ them, for the non-performance or insufficient or improper performance of such implied contract, renders them liable to an action for damages.

Having entered as fully as the limits of our Magazine will allow into the general nature of contracts, we shall proceed in the next number to consider the precautions to be observed and taken on entering into such

contracts.

ART. VIII.-FAMILIAR SCENES IN THE LIFE OF A CLERK.

NUMBER II.

THE interest which clerks generally feel in the business and success of their employers, is, I believe, estimated too cheaply; and that many feel so little, is, perhaps, as often the fault of their employers as their own. The majority of clerks are young men who have hopes and prospects of business before them. They have not yet thrown off that trusting confidence and generous friendship peculiar to youth-they are disposed to think well of themselves and the world, and they feel it deeply when too great a distance is maintained between themselves and their superiors. They have not become so selfish, cold and calculating as men are apt to when they grow older, and find all their pleasure in reckoning profits and per cents. They are ardent, impassionate, generous, and sympathizing— they cannot enter into the purely selfish feelings of another, and ardently endeavor to promote their interests; but they will do any thing for the promptings of a fellow feeling their service is reluctant and venal, if they are looked down upon, but prompt and disinterested when taken by the hand. Most of them have tastes of their own, which may be safely cultivated, and ought to be encouraged; and none of them, perhaps, are so low in their ambitious views, as to be content to spend a life merely in pursuit of a living. They have hopes and expectations; and to be placed on a par with the dray-horse, to perform as much work as their strength and faculties will enable them to do, and to be discharged when it is done, is to them the most degrading servitude.

A good clerk feels that he has an interest in the credit and success of his employer beyond the amount of his salary; and with the close of every successful year, he feels that he too, by his assiduity and fidelity, has added something to his capital-something to his future prospects, and something to his support if overtaken with adversity; and a good merchant encourages and reciprocates all these feelings.

I have in my mind's eye at this moment a gentleman of Massachu

setts, who is still living, and retired upon a large fortune, in the enjoyment of a green and happy old age, whose generous and paternal regard for his clerks I shall never forget. He had always several, and when faithful, generally retained them in his employment for years. Although much scattered over the world, as their interest or inclinations have led them in the pursuit of business, those living, so far as I know, are all distinguished for their integrity and high character as merchants. He was a firm supporter of the government under Mr. Jefferson's and Mr. Madison's administrations, and an advocate of the war of 1812. Although extensively engaged in foreign commerce and a ship-owner, he approved the measure of the embargo, which compelled him to lay up his ships. This curtailed his business greatly, but still he kept his clerks in employment who were with him before and wished to remain, although he reduced their salaries a small per centage, to compare with the times and their usefulness; and he did the same thing in the war of 1812. Although a supporter of the war to the end of it, no man was more heartily rejoiced at the declaration of peace; and notwithstanding that the war had more and firmer supporters at its close than at its commencement, the joy that thrilled through the town on the announcement of peace was universal, and can only be imagined by those who witnessed its extravagance.

It is the custom in the eastern towns on the alarm of fire for the whole population to turn out. The news of peace arrived in the dead of night

the thermometer at sixteen below zero-and the inhabitants were first alarmed by the merry peal of bells. The streets were soon thronged with people. I was then a young man of 18, a clerk, and an inmate of the house of my employer. I of course turned out with the feelings of a boy always desirous of being first on such an occasion. As I rushed into the cold air of the street, slamming the door after me, I set up a ringing shout "Fire-e-e!" 66 Where is it?" asked another, as he issued from the house opposite. "Peace-e-e! you fools-hurra!" cried a man who at this moment came running through the street from the point whence the alarm had sprung. Coarse as this reply was, it excited none of the pugnacious qualities for which the firemen in this city are somewhat celebrated, but in the surprise it occasioned, I stopped short for a moment, and then catching the man's enthusiasm, I set up another shout-" Hur. ra-a!" The chamber window over my head was now lifted, and a nightcap with the old gentleman's head in it, (as boys were in the habit of designating their employers, whether they were of the age of twenty-five or sixty,) was thrust two feet out into the cold air. "What is it?" he asked, in tones of anxious surprise. "Peace-e-e!" I yelled out, and started on a run for the stage office to find out the truth, while the "old gentleman," with no less enthusiasm, thrust himself into his integuments, and sallied out for the same purpose, forgetting, as his wife said, to let down the window before he went, which gave her a cold for a week afterward.

In the course of an hour all was confusion of joy. The "Truckmen" got out their teams-some of them loaded their sleds with a barrel of tar, which they set fire to and went galloping through the town. Some public places were illuminated, and notwithstanding the extreme cold, for the remainder of the night, the streets and public places were thronged with gladsome men and noisy boys, expressing their tumultuous joy by every kind of extravagance. At sunrise, the truckmen, who had illuminated the town with their blazing tar, met together at the head of a wharf VOL. VI. NO 1.

8

in a great thoroughfare, and throwing their combustibles into a heap, they piled on all the empty boxes and loose signs they could lay hold of, while some of them unhitched their horses, and tumbled their sleds upon the fire, as a sacrifice to their love of country and of peace.

The house-maids partook the general joy, and gave us our breakfast of steaming-hot cakes and coffee, at peep of day, (the best-conditioned people were content with rye and pea coffee in those days;) and that morning, I believe every store in the town was open when the sun rose. It was scarcely seven o'clock when the merchant here spoken of was at his office, whom -although the two are not to be identified, yet by the same liberty I took in the last sketch-I will call Mr. Mason. The clerks, four in number, were already at their post, and met their employer with a smile each. "Well, boys," said he, "this is good news-now we must be up and doing." He seldom used the first person, I, but spoke to his clerks, and of them, as being part and parcel with himself. "We shall have our hands full now," he continued, "but we can do as much as anybody."

That promptness of action, on which Americans, and particularly Amer. ican merchants pride themselves as a part of their character, and which was so conspicuous in New York just after the great fire, is not of recent. origin.

Mr. Mason was the owner and part owner of several ships, which during the war had been hauled ashore three miles up the river, and dismantled, and they were now enclosed by a bay of solid ice, for the whole distance, from one to two feet thick, while the weather was so cold that when broken up the pieces would unite and congeal again in an hour or two; but this formed no discouragement in the present case. It would be a month before the ice would yield to the season, and that would give time for merchants in other places, where the harbors were open, to be in the markets abroad before him. The decision was therefore made on the instant."Reuben," said Mr. Mason to one of the clerks, as soon as the greeting was past, and he had told them his intentions, "go out and collect as many laborers as possible to go up the river; Charles, do you go and find Mr., the rigger, and Mr. the sail-maker, and tell

them I want to see them immediately; John, go and engage half a dozen truckmen for to-day and to-morrow; Stephen, hunt up as many caulkers and gravers as you can find, and engage them to work;" and Mr. Mason then sallied out himself to provide the implements for ice-breaking, and before twelve o'clock more than a hundred men were three miles up the river, clearing away the ships and cutting ice, which they sawed out in large squares and then shoved them under the main body, to open the channel. The roofing over the ships was torn off, and the clatter of caulk. ers' mallets was like the rattling of a hail storm-loads of rigging were passing up on the ice-riggers had buckled on their belt and knife-sailmakers were plying the needle, and the whole was such a busy scene as had not been witnessed in the town for years. Reuben, who went up to look after some of the proceedings, engaged as heartily in sawing ice, when he had an opportunity of doing so, as any laborer among them. Before night the ships were afloat, and moved some distance in the channel, and by the time they had reached the wharf-which was eight or ten days their rigging and spars were aloft, their upper works caulked, and every thing in a great state of forwardness for sea.

It was late in the evening, when the clerks and Mr. Mason were all