A promise not to plead the statute will generally on a fair construction imply a promise to pay the debt. If such a promise is fairly to be implied, the debt will be revived to the same extent as if there had been an express acknowledgment or new promise in terms to pay it.67 It is possible, however, for a debtor to make a promise which fairly construed means merely that the debtor will not rely on the defence of the Statute of Limitations, but may take advantage of any other defence open to him. It is doubtful if such a promise is binding without either consideration,68 or action by the promisee in reliance on the promise.69 The exceptional doctrine which allows the enforcement of promises based on antecedent debts must, it would seem, be confined to promises to pay the debts in whole or in part.70 Where the promise not to plead the statute is made prior to the expiration of the statutory period, and the creditor relying on the promise refrains from bringing action, some cases hold the debtor estopped to plead the statute.71 It may seem at first sight that there is no greater reason for applying the doctrine of estoppel in such a case than in any other case where a promise is made without consideration given or requested, but with the knowledge or expectation that the promisee will change his position on the faith of the promise;72 but there is much authority to indicate that though original contractual rights cannot be created by means of such a promissory estoppel, defences may be thus effectively waived or surrendered.73
Cameron v. Cameron, 95 Ala. 344, 10 So. 506; Crane v. French, 38 Miss. 503; Bowmar v. Peine, 64 Mice. 99, 8 So. 166; Newell v. Clark, 73 N. H. 289, 61 Atl. 555; Joyner v. Maasey, 97 N. C. 148, 1 S. E. 702; Cecil v. Henderson, 121 N. C. 244, 28 S. £. 481. Mcintosh v. Condron, 20 Pa. Sup. 118. Under this construction a promise not to plead the Statute made as part of the original transaction would not extend the obligation beyond the period within which it would have been enforceable had there been no promise to waive the Statute. Newell v. Clark, 73 N. H. 289,61 Atl. 555. See also Mutual L. I. Co. v. United States Hotel Co., 82 N. Y. Misc. 632, 144 N. Y. S. 476. Therefore cases like Quick v. Corlies, 39 N. J. L. 11, and State Trust Co. v. Sheldon, 68 Vt. 259, 35 Atl. 177, which allow the creditor to sue after the lapse of the original statutory period are opposed to the decisions previously cited.
67 Gardner v. M'Mahon, 3 Q. B. 561; Trask v. Weeks, 81 Me. 325, 17 Atl. 162; Bowmar v. Peine, 64 Miss. 99, 8 So. 166; Shapley v. Abbott, 42 N. Y. 443, 446, 1 Am. Rep. 548; Lowry v. Dubose, 2 Bailey (S. C), 425; Garden-hire v, Rogers (Tenn. Ch. App.), 60 S. W. 616; Jordan a. Jordan, 85 Tenn, 561, 3 S. W. 896; Burton v. Stevens, 24 Vt. 131, 58 Am. Dec. 153; Stearns v. Stearns' Adin., 32 Vt. 678.
68 Mann v. Cooper, 2 D. C. App. 226, 238; Warren v. Walker, 23 Me. 453; Stockett v. Sasscer, 8 Md. 374; Marseilles v. Kenton's Exec, 17 Pa. 238, 245. See also Woodham v. Hollis, 3 L. J. K. B. (N. S.) 70; Alexander v. Muse, 112 Tenn. 233, 79 S. W. 117 But see State, Trust Co. v. Cochran, 130 Cal. 245, 251, 62 Pac. 466, 600.
69 See supra, Sec. 139.
70 See supra, Sec. 143.
71 See supra, Sec. 139.