The Journal of Legal History

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No obituary for Wennall v Adney

Samuel Stoljar

To cite this article: Samuel Stoljar (1990) No obituary for Wennall v Adney, The Journal of Legal
History, 11:2, 250-269, DOI: 10.1080/01440369008531005

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Published online: 30 Jul 2007.

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 No Obituary for Wennall v Adney
SAMUEL STOLJAR*

It may not have been generally realised how great an opportunity was
missed at common law with, or through, the note to Wennall v Adney.1 But
for this note, appended by the reporters, expressing as it did much too
firm views about legal principles at that time still quite fluid, important
parts of contract and quasi-contract, as of the no-man's land between
them, might well have developed very differently from the way they were
to shape afterwards. Contract could have ended up not so exclusively
tied to a bargain-theory, less tied, that is, to an omnipresent requirement
of consideration, while quasi-contract might well have emerged as more
readily accepting claims even for unrequested or unsolicited services, so
bringing it surprisingly closer to a doctrine usually taken to be entirely
alien to the common law, the doctrine civilians know as negotiorum
gestio.
As things happened, the note to Wennall v Adney rather buried a line of
cases, numerically perhaps thin (barely out of single figures) but
theoretically of the deepest importance, for they were cases advancing
alternative grounds for upholding promises or 'implying' contracts. Not
so much grounds replacing bargain-consideration as rather ideas sug-
gesting a supplementary vinculum juris in certain circumstances, - ideas
first drawing on a notion described as 'natural affection' but later to
broaden into one of'moral obligation'. Nor was either notion here used
in the wide or generous sense prevalent with natural lawyers; their com-
mon law purpose was always more distinct and restricted: to furnish an
independent justification for mainly two forms of liability not
covered by contract. To uphold, on the one hand, certain promises or
agreements which, if not themselves bargains, yet are closely related
with earlier if ineffective contracts; on the other hand, to hold a person
liable to recompense another for uncontracted or unrequested services
for his benefit, typically in situations of manifest urgency or necessity. I
shall first deal with the impact of Wennall v Adney upon the idea of moral
obligation, as this was the note's major preoccupation. I then discuss its
effect on 'love and affection' as a form of consideration for a subsequent
promise, i.e. a promise for past and executed service. I thereupon con-
sider the legacy of our note for quasi-contractual liability, in particular
liability for beneficial services given without any sort of prior promise or
request. I finally present some general conclusions.
*Emeritus Professor of Law and Visiting Fellow, Australian National University, Canberra.
NO OBITUARY FOR WENNALL v ADNEY 251
I

By itself, Wennall v Adney is not a very remarkable decision. Sued for

medical attendance to a sick servant, attendance unrequested by the
master, the latter was held not liable to reimburse the plaintiff. It is not
clear how the servant was injured, whether in the course of his employ-
ment or outside it; in any case the court was more concerned with other
issues such as the servant being attended not in the master's house but in
that of his own mother. As it was she who had called in the surgeon,
there was no basis for implying a request by the master. Neither was
there evidence, the servant not being hired for a longer (at least yearly)
term, of the master having even impliedly contracted to supply
necessaries, including medical assistance. Any claim for such assis-
tance, said the court, should have been addressed to the parish, it being
their duty to provide and pay for this under the poor law; many a master
would anyhow not be able to afford medical assistance in the event of a
servant's long or serious illness.2
A slightly earlier case had nevertheless allowed a similar claim for
non-contracted medicine against a master, Lord Kenyon there putting
the matter very broadly: that a master does incur medical liability so
long as the servant remains under his roof and part of the family.3 This
result was now distinguished as based on an implied contract: the plain-
tiff, it was said, in there attending to the servant in the house of the mas-
ter, a man known to be of large fortune, permitted an inference that the
plaintiff was to be paid by the master, though the latter did not so con-
tract expressly. The Wennall court was seriously divided as to how to
treat Lord Kenyon's decision, one judge seeing it as not 'a hasty opinion,
but formed upon reflection', whereas another thought Lord Kenyon to
have been 'misled' by his humanity. The whole court nevertheless
agreed that in the absence of any sort of contract either between master
and servant or between master and surgeon, liability for medical atten-
dance would rest with the parish.4
Just this liability of the parish a series of contemporary cases had
been strongly affirming. A parish, accordingly, did not succeed in an
action for money paid for medicines for a sick servant, claiming the
money to have been paid for the master's use, as it was the duty of the
parish to take care of such accidents.5 Conversely, the parish was liable
to recompense a person for supplying meat, drink, lodging and
medicine to a servant, the latter coming within the description of'casual
poor' to whom the parish was bound to give assistance.6 These and other
such decisions, it may be noted, also produced a curious result in
master-and-servant law: that whereas a servant could not be dismissed
when sick, nor his wages abated for the temporary period of his infirmity.
252 THE JOURNAL OF LEGAL HISTORY

the master was yet not liable for medicines supplied to his servant,
without an express or implied contract to that effect.7
This brings us to our next and more crucial question. If a master is not
otherwise liable for his servant's medicines, can he yet become liable
where he makes an express promise to pay for them after the event? It is
precisely this question that moved the reporters to their annotation; their
immediate purpose to oppose the then widespread view that a subse-
quent promise to pay for broadly beneficial services does ground an
actionable assumpsit. In a much-cited case, Watson v Turner, 8 a subse-
quent promise by parish officers to pay for unrequested services was
strongly upheld: the promisor, Lord Mansfield said, is liable because of
a 'moral obligation' since such prior obligation is itself a sufficient con-
sideration for a subsequent promise. Such a promise, even without a
prior request, is therefore not nudum pactum, notwithstanding the rule
disallowing past consideration. If, as Selwyn later observed, a person is
under a moral obligation to do an act and another does it for him,
without his request, his subsequent promise is enforceable.9 Nor was
Watson v Turner the only case so deciding. In Hawkes v Sounders10 an
executor's promise to pay legacies was again upheld, there being a suf-
ficiency of assets, Lord Mansfield refusing to see bargain-consideration
as the only test of promissory liability. There was here, it was held, suffi-
cient consideration of another sort in that the executor was already
under a legal as well as equitable duty to pay out the legacies as he was
instructed to do. For very similar reasons was consideration earlier held
to exist where a subsequent promise to discharge a debt was given by an
erstwhile bankrupt, or an infant, or a debtor protected by the statute of
limitations.11 Here, too, the defendant, though not legally was yet seen to
be morally bound to repay the creditor, such that his subsequent prom-
ise was good because seen as resting on the 'consideration' of an antece-
dent moral obligation.
It is the proposition that a subsequent promise might be supported
even without a prior request or bargain that our note set itself to
challenge. A subsequent promise, its major argument runs, cannot of
itself make any difference to the promisor's liability. If the promisor is
under no existing legal duty, a later promise still amounts only to nudum
pactum, whether or not there is a moral obligation, and if the promisor
already is under a valid legal duty there is no need for a subsequent pro-
mise to bind him.12 In Watson v Turner, accordingly, the decision would
or should have been the same even without resorting to moral obliga-
tion, since the parish was anyhow bound to provide for the sick
parishioner, irrespective of the subsequent promise. While this argu-
ment was widely accepted (to become in fact what has long since been
official contract doctrine), it nonetheless invites some very serious
NO OBITUARY FOR WENNALL v ADNEY 253
objection. Without a (special or subsequent) promise, a plaintiff could
then have no common law action. In the eighteenth century, an
executor, for example, needed to make a special promise, without which
a beneficiary had no claim against him, whatever claims might be avail-
able in equity which, it may be noted, soon captured this juris-
diction. 13 ^ late as 1802 Lord Ellenborough would say that without a
subsequent promise a parish could not be liable, its obligation not being
such as 'to raise an implied promise at law'.14 A subsequent promise was
likewise essential in relation to the bankrupt or infant or (statute-
barred) debtor whose later liability also depended on a later promise
renewing his earlier indebtedness.
Furthermore, though the note here speaks of the subsequent promise
only 'reviving' a precedent debt which is merely 'suspended', without the
(later) promise therefore creating 'an original right of action',15 this, if
not exactly false, is also not completely true. Not only did the earlier
liability have to be revived by a subsequent promise (the bankrupt, for
example, had to repromise payment), the new liability so promised
could be different from the earlier, in that the later promise might under-
take to pay the old debt only in part, or at a postponed date, thus perhaps
substantially modifying the earlier liability. The subsequent promise, in
other words, did distinctly more than simply renew an old liability; the
new promise rather projected an altered obligation, one, moreover, now
enforceable on its own terms. It is true, as the note points out, that in all
these situations (the executor excepted) the invalid debt arose from a
commercial benefit the promisor had received earlier;16 also true that,
but for the vitiating incapacity, the law would imply an assumpsit, at
least as from the time when such synallagmatic assumpsits became
impliable. Still no assumpsits could be implied so long as a bankrupt or
infant remained without capacity to bind himself, or a debtor preferred
to remain behind the limitation bar. In each case, therefore, the debtor
had to make a special promise if his debt was to grow into a post-
incapacity liability.
Neither is it entirely accurate that, as the note suggests, the term
'moral obligation' was here used only to denote 'those imperative duties'
which some positive rule had suspended until revived by a subsequent
promise. Certainly this was so with regard to the bankrupt's or infant's
renewed liability; however moral obligation also referred to an
executor's duty to pay legacies from sufficient assets, if only because he
could not keep what was not his, independently of any promise by
him.17 The term moral obligation was important for still another reason.
Notwithstanding some contemporary views suggesting the contrary,18 a
promise was not legally binding, whether or not in writing, unless sup-
ported by some 'consideration' offering a sufficient ground for its en-
254 THE JOURNAL OF LEGAL HISTORY

forcement; hence an antecedent moral obligation became the only

other ground for enforcing a subsequent promise - such as a promise to
pay out legacies or to repay a loan or debt caught by some incapacity; to
this extent, indeed, moral obligation became the only viable alternative
to bargain-consideration.
A case like Lee v Muggeridge19 illustrates this admirably. For though
decided well after Wennall v Adney, it does not rely on it, rather on ideas
still current in the late eighteenth century. A married woman re-
promised to pay a debt owed by her son-in-law which she had earlier
guaranteed by a bond while her husband was alive. Earlier decisions
had held a feme covert's undertakings to be not merely voidable but
absolutely void, thus not even revivable by special confirmation after
the husband's death.20 The court now chose an approach based on
moral obligation. Where a person, it was now said, 'is bound morally or
conscientiously to pay a debt, though not legally bound, a subsequent
promise to pay will give a right of action'.21 However the Wennall note
was soon to triumph in Eastwood v Kenyon.11 The well-known facts are
that an infant, after coming of age, promised her guardian reimburse-
ment for the educational expenses earlier incurred on her behalf. The
defendant whom she later married made a similar promise to repay, a
promise he later resiled from, on the plea that this promise could only be
bad, there being no consideration for it. As everyone knows, the court
agreed with this, expressly following the views of the Wennall note, now
described as 'correct in general', and according to which a subsequent
promise such as this could not create a cause of action. For the obli-
gation on which the promise was made was not itself one capable of
being enforced at law, - either because the defendant himself had had
no prior benefit or because the benefit to his wife was part of a contract
by a married woman as yet treated as totally void rather than merely
voidable. The court, furthermore, firmly rejected the whole notion of
moral obligation, unless kept within the strict limits the note had
allowed, that is, confined to bankrupts, infants and limitation-debtors.
To countenance an express promise for a past benefit not conferred at
the promisor's request would, it was observed, 'annihilate the necessity
of any consideration' contrary to 'the old common law'.23
The great irony of this is that, apart from the words just quoted, little
else survived from this decision, as its particular result was largely
superseded by other developments. The married woman in due course
acquired the same contractual capacity as one unmarried, so dispensing
with subsequent promises to revive her contractual liability, while the
Infants' Relief Act, 1874, saved promises by ex-infants, specifically pro-
mises for necessaries. Technically moral obligation was not entirely
defunct. There might be some doubt as to whether, or to what extent, an
NO OBITUARY FOR WENNALL v ADNEY 255
ex-bankrupt might still bind himself by a subsequent promise; but there
was no doubt that a debtor might subsequently promise to repay the
creditor, notwithstanding the limitation period having run in his favour.
Nevertheless the damage done to moral obligation was too severe for it
to remain an active idea. This, to be sure, is not to argue for Lord
Mansfield's doctrine, if it was his doctrine, that promises deliberately
made should be enforced as such, even without consideration, only
because such promises represent a moral obligation. But it is to argue
that certain promises might have been allowed, despite their lacking
consideration, in particular subsequent promises which are distinctly
bargain-related as distinct from original promises which are bargain-
forming, - more exactly, not just subsequent promises, which, as we saw,
revived an antecedent yet ineffective contract, but, also, and no less
interestingly, such subsequent promises by which we alter or modify
already established agreements. Indeed, had contract law kept this
alternative or auxiliary notion of moral obligation, the rules relating to
the modification of contract might well have taken a more straight-
forward course than they have in fact taken.

It needs to be seen that our note went seriously wrong, on the existing
law, in dismissing moral obligation in the particular manner it did dis
miss it. In Watson v Turner,24 it was there said, Lord Mansfield spoke of
moral obligation only to denote duties suspended by some 'positive rule',
not to indicate the possibility of'any vague or undefined claim arising
from nearness of relationship'.25 This was much too sweeping. What can
be said is that in Watson the question of moral obligation did not really
arise, for the simple reason (already mentioned) that a parish either was
under a legal duty to supply medicine or it was not, and, if not, neither a
moral obligation nor a subsequent promise would make any difference.
This apart, however, it was far from true that moral obligation had no
other role to play. In fact, as we shall try to show, moral obligation had,
for more than two hundred years, been operative in another guise,
closely associated with an older principle to the effect that a subsequent
promise to pay even for unrequested services might yet be upheld, if they
were services broadly describable as 'necessaries' and the promisor
stood in a special relationship, one of'natural affection', to the person to
whom the necessaries were provided. There was,pace our note, nothing
especially 'vague' or 'undefined' about these claims; on the contrary,
they were relatively specific.
The idea that 'love and affection' might serve as a consideration
entered the common law chiefly through Sharington v Strotton.26 In this
256 THE JOURNAL OF LEGAL HISTORY
landmark case natural affection for a person of one's blood was held to
be sufficient consideration to sustain a covenant to stand seised to the
use of that person. It is worth recalling that consideration had not been a
necessary requirement to pass property in land: a gift by livery of seisin
or a deed of conveyance passed title irrevocably. When (first in equity,
then at law) the rule emerged that in a gratuitous conveyance the grantee
is to be 'intended' to hold to the use of the grantor, as on a resulting trust,
unless the grant is to one's kinsman, love and affection become suffi-
cient consideration for the purpose of upholding the gift as valid. When
the Statute of Uses subsequently executed the use, a covenant to stand
seised to the use of another again failed as a conveyance unless, as
Sharington v Strotton indeed decided, it too was supported by natural
affection as it was if the gift was to a kinsman. An objection was that
consideration could not be anything other than part of a bargain (a
benefit to the covenantor or detriment to the covenantee); but the court
now accepted that in providing for one's own kin, out of love and affec-
tion, this may be sufficient consideration to validate a gratuitous con-
veyance. If, remarked Catline C.J., 'naturae vis maxima, I say natura bis
maxima, and it is the greatest consideration that can be to raise a
use.127
These ideas proved highly influential, as they also seemed relevant
for a new sort of informal promise which, too, stood outside regular
bargain-consideration, namely, the promise to reimburse another for
his unrequested services rendered to one's child in one's absence. If, it
was said in Style v Smith,2* a case surprisingly little noticed, a physician
who is my friend, hearing that my son is sick, goes to him in my absence,
and helps and recovers him, and I being informed thereof, promise him
in consideration, to give him 20 pounds, an action lies for the money.
Without such a later promise, as already said, there could as yet be no
action in assumpsit; neither of course could there be an assumpsit
without 'consideration', for it is only on the basis of a promise connect-
ing with some consideration that an informal promise was at all enfor-
ceable. Important as Style v Smith is, it is reported merely as part of
another case,Marsh v Rainsford,29 the latter quite a different situation, in
which a father promised his son-in-law financial support in considera-
tion of the latter having married his daughter after an elopement.
Though the consideration is 'precedent', said the court, the natural
affection of the father for his daughter is 'sufficient matter of considera-
tion', since 'her advancement is sufficient cause of the promise', her
advancement being a benefit to the father.30 This outcome can well be
seen as controversial, offending as it does the rule against 'past' con-
sideration (unless the subsequent promise is treated as a sort of 'con-
tinuation' of an earlier, pre-nuptial, promise, an interpretation indi-
NO OBITUARY FOR WENNALL v ADNEY 257
31
cated in two reports, though this too seems a little artificial). However
none of this affects Style v Smith together with the wider principle
emanating from it. At first sight, admittedly, it too seems quite at
variance with the rule against past consideration; but this is a variance
which, as we shall shortly see, easily permits a different explanation.
Now Style v Smith our note misunderstood almost completely. So it
asserts that 'it seems to have been much doubted whether mere natural
affection was a sufficient consideration to support an assumpsit, though
coupled with a subsequent express promise'.32 Certainly doubts existed,
but they were not so much about Style v Smith itself as in relation to
situations which superficially looked similar but were in fact very dis-
tinguishable. In Hunt v Bate33 the plaintiff unsolicitedly intervened to
bail out the defendant's servant, doing this 'of his own head', and 'for his
neighbourly part', for which the defendant promised to reimburse him;
this promise failed as the defendant had made no prior request to the
plaintiff. In Lampleigh v Braithwaite34 there was in fact a prior request for
the plaintiffs services, so that the defendant's subsequent promise to
reimburse was no longer a 'mere voluntary courtesy', for 'the promise,
though it follows, yet is not naked, but couples itself with the suit before'.
Though both results insist on a prior request, they are nevertheless far
from incompatible with Style. For it is one thing to deny reimbursement
where one does services for another, without request, even if there be a
promise to pay after the event; it is quite another to perform services
unrequestedly, but in situations of obvious emergency where the two
sides are in no position to agree beforehand, as where the defendant is
not even present at all, and where the party rendering the services may
therefore fairly presume that what he does is as urgent as it is in the
other's interest. Thus to perform urgent, necessary and beneficial ser-
vices is not to act officiously, or behind the other's back, or solely 'of his
own head', as did the plaintiff in Hunt v Bate.
Nor should Style v Smith be confused with a situation where the prom-
ise is based on mere ex postfacto gratitude, something the rule concern-
ing 'past' consideration is primarily directed against. If in Style the
defendant was liable on his subsequent promises for services that were
indeed past, this was, essentially, because the plaintiff intervened in the
defendant's absence, in a manifest emergency, in which the latter's child
was in immediate need of medical attention, with only the plaintiff
being at the moment in a position, or of a mind, to intervene helpfully.
Moreover, describing the plaintiff as a friend was here rather a way of
saying that he was not like a stranger who would have no occasion to
come forward at all, having knowledge of neither the defendant's
absence nor of his affairs; only a friend would intervene as only he
would be kindly disposed towards the defendant, including the welfare
258 THE JOURNAL OF LEGAL HISTORY
of his child. A person must clearly be moved by at least some kindness to
do what he does for another without any promise of payment in
advance, though even this kindness, or friendship, does not mean that
he acts as a 'mere volunteer'. A physician, kindly as he may be, still ren-
ders professional services - services he may well give on credit, but still
not animo donandi, unless indeed this remunerative presumption is
rebutted by circumstances suggesting the opposite. So while Style v
Smith, in its particular context, refers to love and affection as considera-
tion for the promise, what this means is not a wide, open-ended doc-
trine, warmly encouraging affectionate deeds, but rather a narrower
principle upholding a special category of subsequent promises, namely,
promises to pay for undoubted necessaries for one's child. To be legally
enforceable at all, a promise had technically to rest on some form of
consideration; here it could only rely on 'natural affection', as this was the
only other consideration admitted, this being of course a situation
where the usual bargain-consideration could not even arise. The true
name of the game, however, was what we would now call a father's
liability for necessaries; it is this liability the appeal to natural affection
probably tried to catch.
Another major misunderstanding lies in our note's peculiar re-
interpretation of Style v Smith. More closely examined, the note con-
tends, Style may not be found 'so discordant' with other cases which do
deny natural affection as sufficient consideration for promises. From
the words 'in the absence of the father', used in Style, the note argues, we
may infer that the son lived with the father, that the medicine was
administered in the father's house, hence given on the latter's credit,
thereby credit charging the father just as a prior request would do.35 This
explanation, it will be noticed, borrows from that in Wennall v Adney
itself; but it is not very adequate for present purposes. For the present
question is not whether the plaintiff supplied necessaries on the defen-
dant's credit, for if he did we would not have the difficulty we now face;
the defendant's liability would then be straightforwardly contractual as
are all such credit-purchases mediated through an intermediary. Rather
the precise question is whether the plaintiff may intervene apart from
any such contract; whether, more particularly, he may indeed presume
that, in a situation such as this, the defendant would be prepared to pay
for services rendered, especially since being absent he can make no
other arrangements, it being further understood that, acting as a pro-
fessional, the plaintiff acts with an intention to charge.
Nor is it possible to accept the note's view of other cases as in fact 'dis-
cordant' with Style v Smith. The alleged discordant cases tell quite a dif-
ferent tale. In Bret v J.S.36 it is certainly made very clear that natural
affection does not in itself constitute sufficient consideration, so that an
NO OBITUARY FOR WENNALL v ADNEY 259

assumpsit cannot be actionable without an express quid pro quo. But the
facts here invited this very point. A mother promised to reimburse the
plaintiff for (future) board and lodging to be provided for her son, while
also reiterating a promise made by her (deceased) husband to pay for
board for the son provided earlier. Both father and mother, no doubt,
made their several promises out of affection for the son; for all that they
were also straightforward bargain-promises as they were promises to
procure (in advance) benefits for a child. In Harford v Gardner*1 also
allegedly 'discordant', natural affection is again rejected, for good
reason as quickly appears. The defendant (D) promised the plaintiff (P)
100 pounds in consideration of P's father having rendered services to
D's father. D's promise was held unenforceable, the consideration being
entirely past, the services having been given to D's father, not even to D
himself. Mere love and friendship was again said not to be sufficient
consideration, though in the context this remark applied particularly to
the given promise, differing as this did from a promise as in Style v Smith.
The difference is that the former promise could only be construed as a
promise of a gift, inspired by friendship and gratitude for services ren-
dered by another person in the past as well as probably given purely
generously; many promises for a past consideration are indeed little
more than grateful acknowledgments for earlier services, precisely
where the relevant parties could have made a proper (remunerative)
contract but did not; quite unlike the situation in Style where services are
rendered in circumstances allowing no making of a contract, being cir-
cumstances brooking no delay, as where the promisor is absent and so
unable to provide immediately wanted necessaries for his child.
Somewhat similar comments are germane to various other cases
referred to in the note. In Best v Jolly™ the father was held not liable for
his son's debt, though he was liable on his own promise to pay, having
induced the plaintiff to forbear suing the son, while in Butcher v
Andrews*9 where there was no such promise the father was not liable on
his son's debt at all. Had there been a later promise following a prior
request, it would have been a good promise because it would then have
been the father's debt, virtually a debt owed by a guarantor; but since the
money was lent to the son, it was his own debt. For the same reason, a
son was held not liable in Barber v Fox,40 on his promise to pay his
father's debt, due on a bond, the son not being expressly bound in the
bond. Our note suggests that the son should have been liable on his sub-
sequent promise, just as was the father in Style v Smith, for if a father is to
be liable 'by the mere force of moral obligation', so should be the son.41
And since the son was not so liable, our note implies, the whole rationale
of Style, based as it was on 'natural affection' now renamed 'moral
obligation', was (it now emerges) already then departed from. But this,
260 THE JOURNAL OF LEGAL HISTORY
once again, overlooks a crucial distinction between the former cases
and the facts and decision in Style. Whereas in the latter the promise was
for services rendered in extremis, in the former cases there was absolutely
no evidence of this. Since there the father or son had, respectively, each
incurred his own debt, it was surely correct to hold that either's sub-
sequent promise could not alter the other's personal liability as prin-
cipal debtor.
Before Wennall v Adney, then, two lines of principle had emerged: a
major and a minor stream. The major categorically affirmed a bargain-
principle of promissory liability, thereby denying natural affection or
moral obligation as sufficient consideration for a promise, especially
where the promise is for services both past and unrequested by the pro-
misor. The minor stream, perhaps more tentative and certainly more
obscure, did uphold love and affection as a basis for certain actionable
promises. Even if apparently antithetical, each seemingly moving in an
opposite sense, the two streams are not necessarily at odds. There is
nothing fundamentally inconsistent about the law typically or regularly
recognising only bargain-promises, promises for agreed or requested
services on the one hand, yet on the other exceptionally upholding a
class of subsequent promises by which a parent agrees to pay for
necessaries already supplied in one's absence to one's child. In this light,
therefore, a bargain-principle is by no means incompatible with enforc-
ing promises for unrequested services, provided these services are given
outside any possible bargain at all. For our classical bargain-principle is
not, or at least does not have to be, a totally exclusive test, its purpose
rather being to deny legal enforcement to transactions which are, or can
or should be, bargains but somehow fail to be. The bargain-theory, on
this view, does not extend to situations which clearly preclude any prior
bargain even being made. Indeed it is only where the facts give a hint of
officiousness or gratuity in the two parties' relationship, where (in other
words) the defendant can legitimately object there could or should have
been a proper agreement for the plaintiff to be paid, that the bargain-
theory clashes with the minor stream.
This minor stream, moreover, was not to be limited to cases exactly
like Style. The question soon arose whether a subsequent promise might
also be good in respect of other services such as expenses incurred for
the promisor's dependant, or necessaries supplied for an illegitimate
child. Suppose a plaintiff incurred expenses arranging the burial of the
defendant's wife or child, for which the defendant later promised to pay.
Though burials were always regarded as a necessary expense if under-
taken by an executor, the question now was whether money paid or laid
out by a stranger in procuring an undertaker also was a reimbursable
claim. This was much discussed in Besfich v Coggil42 where the defen-
NO OBITUARY FOR WENNALL v ADNEY 261

dant subsequently promised to repay the plaintiffs expenses for his

son's burial which had taken place abroad. The defendant even main-
tained his (subsequent) promise to be bad since not preceded by an
appropriate request, while the plaintiff argued that the promise was backed
by sufficient consideration, that of continuing love and affection of the
promisor for his son. The decision seems to have gone for the plaintiff,
as a little later it did in Church v Church.43 This, following Style v Smith,
held assumpsit to lie in such circumstances on a subsequent promise to
reimburse. Later still, this was extended to a subsequent promise to pay
for necessaries for an illegitimate child, apparently without much
debate. An indebitatus assumpsit lies, said Pemberton C J., on a special
promise 'for meat and drink for a bastard child'.44 The case also
indicates a change in terminology. Instead of the promisor's liability
grounded on love and affection, it is now put on a parent's liability for
necessaries, perhaps for no better reason than it may have seemed
impious to speak of love and affection for a natural child in the same
breath as a legitimate one. Yet this did not alter a father's duty to pay for
his necessitous infant, legitimate or not, though so far only if he had sub-
sequently promised so to do.

ill
The second stream of cases took a different, and more confusing, turn
when promises began to be implied. Such implied promises first began
when assumpsits were enforced either without a subsequent promise, or
even without the need to prove a prior request, but in either case only if
the parties' relationship was truly synallagmatic, a contract being then
implied in fact. Thus promises were easily enough implied, where there
was no doubt that these services, even if executed, were given as part of a
(tacit) quid pro quo; even if there was no prior request, the rule became
that a request did not have to be averred in relation to acts or services
which, in their very nature, could not have been officious or gratuitous,
such as claims for money lent or goods sold and delivered, since a defen-
dant, if perhaps not expressly requesting, nevertheless accepted or kept
the money or goods given to him.45 As regards situations, however,
where a defendant had no like option to return things received, a request
had still to be averred in any claim for executed services, not without
reason if only to ensure that a defendant would not be charged for ser-
vices he had never wanted or remotely bargained for or merely accepted
believing them to be a kindness or gift.46 A case of some notoriety at that
time, Hayes v Warren,41 illustrates the general difficulty. The plaintiff
averred a promise by the defendant to pay him so much after he had
done work for him. After judgment by default for plaintiff, the King's
262 THE JOURNAL OF LEGAL HISTORY

Bench reversed the Common Pleas on error, on the ground that the
work was not laid to have been at the defendant's request, neither
appeared to have been done in circumstances in which the defendant
was 'privy' to the work. Had this been after verdict rather than on error,
the court added, they might have been able to imply a prior request, by
drawing appropriate inferences from the words in the declaration that
the work was 'for' the defendant and from the fact that the work was of
benefit as well as accepted by him. One can see that the prior-request-
rule, far from being always rigidly applied, had a very functional pur-
pose, that of protecting a person from being charged for entirely
officious services, that is, services he never agreed, or possibly even
wished, to have done for him.
In the Wennall note, however, the request became something of very
superior significance. Not only did it view a prior request as absolutely
essential to uphold every claim in respect of services (hence its contrived
credit-interpretation of Style v Smith, as we have seen). It also failed to
see that a prior request was, as it still is, altogether out of place in claims of
an intrinsically non-bargain nature, where a problem such as the pre-
sent only arises precisely because there can be no prior request, even
though there can be, and in the beginning there normally was (as in
Style v Smith itself), a subsequent promise to pay, that is, a promise made
only after the (unrequested) event. Yet it was the 'clarification' that the
note introduced that was so firmly to guide lawyers in the early
nineteenth century, a most crucial time. The note, it is true, did clarify
some minor because uncontroversial aspects of contractual liability,
but in so doing managed to throw out the whole principle of Style v Smith
together with the old idea that an ex postfacto promise to pay for certain
services might, in certain limited situations, be grounded in natural
affection or moral obligation; and this, as we have seen, quite apart from
the otherwise dominant bargain-principle.
It may be said that common lawyers, preoccupied with assumpsit as a
basis of contractual liability, could not be expected to concern them-
selves with a liability outside contract such as liability more akin to what
we now describe as liability arising in quasi-contract. But any such
objection would not only overlook the way indebitatus assumpsit,
through its count of money had and received, pioneered the bulk of
quasi-contractual actions; it would also overlook the most interesting
potentiality of another indebitatus count for quasi-contractual pur-
poses, namely, that of money paid, laid out and expended to the defen-
dant's use. A wider role for money paid had, albeit indirectly, indeed
been prepared by Style v Smith, and the cases following it. For if in those
cases a person could be liable on his subsequent promise for necessaries
supplied to his child, without any prior bargain, why should that person not
NO OBITUARY FOR WENNALL v ADNEY 263

be liable without such a later promise, always assuming the necessaries

were supplied in manifest urgency? Here the step from promissory to
non-promissory liability seems at first considerable, entailing as it does
a shift from contractual liability to one decidedly quasi-contractual in
character. But seen in terms only of attributing liability for necessaries,
the difference between contract and quasi-contract is, in this particular
situation, not quite so significant. Except of course that where there is a
subsequent promise, we are, technically or at least historically, still in
the realm of contractual liability, though one outside the bargain-
principle; whereas where no such subsequent promise exists, nor can be
implied in fact, the relevant liability becomes purely quasi-contractual.
But quasi-contractual extensions were as yet not on the agenda. Even
in the following two cases where such extensions did occur, their quasi-
contractual significance was not fully realised. In Jenkins v Tucker** the
plaintiff claimed in an indebitatus count of money paid for expenses
incurred for the burial of the defendant's wife, the defendant demurring
that any payment without prior request is no basis for an assumpsit.
Were such an action allowed, so ran the defendant's plea, it would cause
him injury as he would be precluded from contesting the 'legality of the
original demand'. This point was easily dismissed, on one view because
there was here sufficient consideration to support a claim for funeral
expenses, even without a prior request, since the plaintiff acted in dis-
charge of a duty the defendant himself was under a strict legal necessity
of discharging; according to another view because the law will 'imply' a
promise to reimburse as the husband, already liable had the plaintiff
buried the deceased himself, should in justice be equally liable where
the plaintiff only defrayed the expenses of the funeral.49 Our second
case,Nicholson v Chapman,50 concerns very different facts. A found, and
took to a place of safety, some timber belonging to B. Though A became
liable in trover when refusing to return the timber on demand, nothing
having been tendered to him by way of a reward, the court was nonethe-
less careful to point out that A's securing of B's timber was 'a good office,
and meritorious', which 'certainly entitles the party to some reasonable
recompense', for which 'a court of justice would go as far as it could go
towards enforcing the payment'.51 The finder, in other words, though
without any lien over the goods, a lien he would have in maritime
salvage, may yet claim reasonable recompense for his labour and skill,
just as he would be entitled to some payment where he takes care of a
strayed horse.
It should be obvious that these cases seminally point to a broader
principle, one indeed closely comparable to negotiorum gestio. Just as the
latter allows claims for unrequested services, provided these are
manifestly necessary or urgent rather than officious, as well as
264 THE JOURNAL OF LEGAL HISTORY

remunerative rather than gratuitous, so the above decisions coun-

tenance actions for clearly non-contractual yet useful services rendered
in one's absence, in an emergency. It will also be obvious that claims of
this nature will not be frequent; the occasions are relatively few on
which unrequested services are both non-officious and non-gratuitous
and thus justifying payment. The fact remains that the principle just
identified can, in a number of cases, have quite critical relevance,
though in the post-Wennall vAdney era this was a principle destined to
be disregarded at common law. In relation to Nicholson v Chapman, in
particular, something most telling was to occur. Henry Blackstone, its
reporter, at first felt able to say (in a footnote) that it is 'probable' that the
plaintiffs recompense would be recoverable by an assumpsit for work
and labour (the court here implying a prior request though the claim
would come before the jury as on a quantum meruit); in a later comment,
however, added apparently after Wennall vAdney, the suggestion of there
possibly being such an action is withdrawn, on the ground, echoing
Lampleigh v Braithwaite,52 that unrequested services being a mere volun-
tary courtesy support no claim.53 This approach to unsolicited services
was of course fully in accord with orthodox contractual rules under
which such services were not actionable, not being based on (express or
tacit) synallagmatic requests. But the new vision, inspired by Wennall v
Adney, rode roughshod over the principle that Style v Smith had pre-
pared and that Jenkins v Tucker and (at any rate important dicta in)
Nicholson v Chapman had given a new quasi-contractual potentiality.
After the Wennall note, Jenkins v Tucker, as well, became little more than
an anomaly, a sort of English actio funeraria, losing its truer status as a
quasi-contractual paradigm.
Concomitantly, Style v Smith disappeared in limbo, followed by the
father's liability for necessaries, a rule increasingly shrouded in
obscurity. While it was admitted that a parent or spouse would be liable
for a dependant's funeral expenses, with or without a subsequent prom-
ise, it became surprisingly unclear whether a parent was liable for (unre-
quested) services to a child even in circumstances of necessity. Though a
deserted wife acquired relatively early a so-called agency of necessity,
thereby giving a supplier a claim for necessary things obtained on credit
by her,54 other liability for necessaries underwent a curious change. If in
1682, an indebitatus assumpsit would lie, at least in Lord Hale's opinion,
for meat and drink for a child,55 in the nineteenth century it could be
said that 'in point of law' a father who makes no request or contract is no
more liable for necessaries to his son than a brother or uncle or mere
stranger; for though a father is under a 'moral obligation' to provide for
his children, he is under no legal one, nor can there be a legal obligation
upon him without any evidence of an authority or request on his part.56
NO OBITUARY FOR WENNALL v ADNEY 265

This was not the only view; one or two cases hinted at a father perhaps
being liable for necessaries for a deserted infant unable to maintain
himself. But no case actually decided this.57
If this indecision may not have been of great practical moment (for
necessitous infants were usually with their mothers who did retain an
agency of necessity), theoretically the present uncertainty was as strik-
ing as it went deep. Even if the law did recognise some principle of
liability for necessaries for (say) very young children, the question
remained how such a principle was to be explained. Merely to say that a
promise to pay for necessaries is implied by law, does not yet tell us how,
technically, it can be, having regard to the prior request-requirement
that the note so much emphasised. On the other hand, to say that a
father's liability for necessaries can only be put in quasi-contract,
especially if there is no subsequent promise to pay, just as an infant's
own liability is generally now taken to be quasi-contractual, this of
course amounts to admitting that the common law did, or at any rate
now does, recognise certain claims for unrequested services - in par-
ticular services which cannot be the subject of a prior request, as where
the defendant is absent and the matter urgent (as a child's sickness is). If
so, furthermore, we actually do possess an inherently broader principle
that not only accommodates cases like Jenkins v Tucker and Nicholson v
Chapman, but also Style v Smith, where a subsequent promise
underscores that liability; if so, we also possess a principle which, realis-
ing its full potentiality, could encompass other situations of one person
intervening both beneficially and urgently on behalf of another, always
provided they are interventions rather like those of a putative agent's,
hence definitely not acts which prove merely officious or gratuitious.
And this broader principle, already applying (or assumed to apply) to
the supply of necessaries as to the finding or protecting another's pro-
perty, might by the same token extend to another type of situation as
well. That is the situation where one person advances money on behalf
of another, as by paying the latter's debt without prior authority. Though
(as Jenkins v Tucker shows) a count of money paid can lie to recover
money expended for the use of another, it has nevertheless been thought
not to lie for advances of one for another, this being regarded as a claim
fraught with special danger for the person on whose behalf the advance
is made; the latter may have many reasons to oppose such a payment; he
may simply not wish to become, without his consent, the intervenor's
debtor.58 But the principle now suggested is highly sensitive to that wish.
As in earlier situations, here too the plaintiff cannot intervene except in
circumstances of some emergency, such as where the defendant hap-
pens to be absent, his debt overdue, without there being any doubt
whatever of his in fact owing the money to the particular creditor claim-
266 THE JOURNAL OF LEGAL HISTORY

ing it. If a plaintiff, in this situation, liquidates the debt, thereby saving
the defendant from serious inconvenience or financial harm, there
surely can be no objection to the advance being recoverable. At first
sight, the decisions, led by Exall v Partridge*9 seem to deny recovery. But
further considered, quite a different construction can be put on
them.
In Exall the plaintiff recovered his advance where his goods were dis-
trained on the defendant's premises for arrears of rent, the plaintiff
being obliged to pay the rent to redeem his own property. The plaintiff,
said the court, could not have relieved himself from the distress without
paying the due amount: 'It was not therefore a voluntary, but a com-
pulsory payment. Under these circumstances, the law implies a
promise.'60 The point is, however, that recovery need not be confined to a
payment qualifying as compulsory in this sense. Certainly compulsion
becomes a crucial factor where a plaintiff advances money not just for
the defendant's but also his own benefit, and where we do not have the
sort of emergency earlier described, since the defendant may be present
rather than absent throughout, even if the plaintiffs payment may be
deemed to be an unrequested one. What is more, if facts like these can be
taken as 'evidence of a prior request', if only to allow a promise to be
implied, both implied request and promise here being obviously only
fictions, why cannot recovery be similarly allowed where the plaintiff
intervenes in the debtor's absence, paying the latter's overdue bill to a
creditor no less insistent, and where the circumstances of the interven-
tion, even if not perhaps quite as compulsory as before, are nevertheless
no less compelling and no less beneficial to the debtor? The law has not
taken, at least not yet, any such course, limiting recovery to 'compulsory'
payments on the closest analogy with Exall v Partridge itself. This seems
yet another effect of the note's dogmatic embargo on all claims for unre-
quested services, even entirely unofficious and beneficial ones.

IV

To summarise the preceding arguments. The first and fundamental res-

pect in which our note went wrong is in its total rejection of moral
obligation as an alternative, if subsidiary, source of promissory liability.
It was one thing to enter a corrective to Lord Mansfield's view, if it was
his view, that promises deliberately made should all be enforced. It was
quite another to insist that every promise has to be supported by
orthodox bargain-consideration. No doubt, bargains or synallagmatic
agreements by which we buy or sell goods and services remain at com-
mon law, as perhaps in most legal systems, a paramount reason for con-
tractual enforceability. This, nonetheless, does not have to exclude all
NO OBITUARY FOR WENNALL v ADNEY 267

other promises, in particular those which, though not themselves con-

stitutive of an original bargain, are yet closely bargain-related, in fact
promises which a contract system cannot really do without. For
bargain-related promises are just those ancillary undertakings by
which parties can reaffirm antecedent agreements flawed by an
erstwhile incapacity (notably promises by an ex-bankrupt, ex-infant
etc.), or they are promises by which we can adjust or modify ongoing
contracts; indeed, and as earlier mentioned, had such modificatory pro-
mises been upheld - as perhaps they might have been had moral obliga-
tion, properly adapted, survived rather longer - it would have saved the
need for other devices like waiver or estoppel having to come to our aid.
But this is another story.
Not only did our note emasculate the notion of moral obligation,
reducing subsequent promises to nothing more than confirmations of
suspended (or voidable as distinct from void) contracts, its blunt attack
also damaged another principle we have described as that of Style v
Smith, under which a subsequent promise to pay for unrequested ser-
vices might be good if supported by the promisor's natural affection.
Again, it was one thing to hold that natural affection could not, by itself,
function as sufficient consideration, if the bargain-principle was to
maintain its central role. It was quite another to dismiss natural affec-
tion altogether, even where it only denominated a father's liability for
necessary services supplied to his sick or dead child in his absence, for
this constituted a very special situation completely distinct from any
possibility of bargaining. Furthermore, radically reinterpreting Style v
Smith as it did, the note not only left subsequent (non-bargain) promises
without a feather to fly with, it made it impossible for such promises to
be implied by law when assumpsits became legally impliable, that is,
implied for the specific purpose of enabling an action for recompense
for certain unrequested services. Thus the note virtually bolted the door
to a new form of quasi-contractual liability based on as well as develop-
ing the count of money paid, laid out and expended to the defendant's
use - in fact a liability that might thus have laid the groundwork for
something remarkably similar to negotiorum gestio. Somehow only Jen-
kins v Tucker61 survived as a going precedent, though it, too, ended up
distinctly marginalised instead of the fecund paradigm it could have
been. In all, it is at least possible that, undeflected by the note to Wennall
v Adney, and the ideas it expressed, the common law might well have
taken quite a different course.
268 THE JOURNAL OF LEGAL HISTORY
NOTES

1. (1802) 3B. & P.247, 249n. This, oddly enough, has not been extensively discussed in
the literature, except notably by C.H.S. Fifoot, History and Sources of the Common
Law (London, 1949), pp.407, 411, 435 ff, though even there only along traditional
and somewhat uncritical lines.
2. Ibid. at pp.253-4.
3. Scarman v Castell (1795) 1 Esp. 270, 271.
4. Wennall v Adney, supra, at 248.
5. Newby v Wiltshire (1784) 2 Esp. 739, 743.
6. Simmons v Wilmott (1800) 3 Esp. 91.
7. Wennall v Adney, supra, at 249. See more generally Schwarzer, Wages During Tem-
porary Impossibility (1952), 5 Stanford L.R. 30.
8. (1767) Bull. N.P. 129, 147, 281.
9. Selwyn's Nisi Prius (6th ed. 1824), p.56.
10. (1782) 1 Cowp. 289.
11. See, respectively, Trueman v Fenton (1772) 2 Cowp. 544; Hyling v Hastings (1699) 1Ld.
Raym. 389, 421; Southerton v Whitlock (1726) 1 Stra. 690, followed in Cooper v Martin
(1803) 4 East 76 which though apparently contemporary with Wennall v Adney was
still decided on earlier grounds.
12. Wennall v Adney, supra, at 249n.
13. Cf. Deek v Strutt (1794) 5 T.R. 690.
14. Atkins v Banwell (1802) 2 East 506. If there was no subsequent promise a prior
request from the parish had to be at least impliable in fact: Lamb v Bunce (1815) 4 M.
& S. 275. Not until a little later did a parish become liable on an implied-in-law
indebitatus: Paynter v Williams (1833) 1 C. & M. 810.
15. Wennall v Adney, supra. 250n, 253n.
16. Ibid. at 253n.
17. The executor could not keep what was not his if there was a residuary legatee. If
none was named, the executor could keep the balance of the estate, after paying all
debts, until the law was changed by statute in 1830.
18. See, e.g., Pillans v Van Mierop (1765) 3 Burr. 1663.
19. (1813) 5 Taunt. 36.
20. See, e.g., Loyd v Lee (1719) 1 Stra. 94.
21. 5 Taunt. at 46.
22. (1840) 11 Ad. & E. 438.
23. Ibid. at 450-2.
24. (1767) Bull. N.P. 129, 147, 281.
25. Wennall v Adney, supra, at 251n, 253n.
26. (1566) 1 Plowd. 298.
27. Ibid at 309.
28. (1587) 2 Leon. 111.
29. (1588) Cro. Eliz. 59, 2 Leon. 111, 3 Dyer 272b.
30. 2 Leon. 111, Cro. Eliz. 59.
31. See ibid for this idea of 'continuation' to defeat the 'past' consideration rule.
32. Wennall v Adney, supra, at 251.
33. (1568) 3 Dyer 272a; Godb. 31, 32.
34. (1616) Hob. 105, 106.
35. Wennall v Adney, supra, at 253n.
36. (1600) Cro. Eliz. 755.
37. (1588) 2 Leon. 30.
38. (1661) 1 Sid. 38.
39. (1698) Carth. 446.
40. (1670) 2 Wms. Saund. 134, 136. And see also Hunt v Swain (1665) 1 Lev. 165.
41. Wennall v Adney, supra, at 253n.
42. (1628) Palm. 559.
43. (1656) T. Raym. 260, 3 Dyer 272b, pl. 32n.
NO OBITUARY FOR WENNALL v ADNEY 269
44. Anon. (1682) 2 Show. 184.
45. See Franklin v Bradell (1650) Hutt. 84; Osborne v Rogers (1667) 1 Wms. Saund. 264
note (1); Victors v Davis (1844) 12 M. & W. 758; Fisher v Pyne (1840) 1 M. & G.
265n.
46. 'For it is not reasonable that one man should do another a kindness, and then
charge him with a recompense: this would be obliging him whether he would or
not, and bringing him under an obligation without his concurrence': Osborne v
Rogers, supra.
47. (1731) 2 Str. 933.
48. (1788) 1 H. Bl. 90.
49. Ibid. at 93-4.
50. (1793) 2 H.B1. 254.
51. Ibid. at 258, per Eyre C.J.
52. See at note 34 supra.
53. 2 H.B1. at 258n.
54. Manby v Scott (1663) 1 Sid. 109; Houliston v Smyth (1825) 3 Bing. 127.
55. Anon. (1682) 2 Show. 184.
56. Mortimore v Wright (1840) 6 M. & W. 482; Shelton v Springett (1851) 11 C.B. 452.
57. See Urmston v Newcomen (1836) 4 A. & E. 899; Coldington Parish Council v Smith
(1918) 2 K.B. 90, 96. In Mortimore v Wright, supra, it might be said that the things sup-
plied were perhaps not true necessaries since the son was 20 years of age, living and
working away from home, and about to inherit a sum of money large enough to
meet his debts. What nevertheless is astonishing is that the plaintiff (the son's land-
lady) suggested the son might be taken home, but the father apparently did nothing
except to assure the plaintiff that the son would soon have enough money of his
own. For an opposite decision see in Nichole v Allen (1827) 3 C. & P. 36.
58. See Stokes v Lewis (1785) 1 T.R. 20; Durnford v Messiter (1816) 5 M. & W. 446.
59. (1799) 8 T.R. 308.
60. Ibid. at 310-11.
61. (1788) 1 H. Bl. 254. And see at note 49 supra.