It is often said that the new promise of a debtor whose debt is barred by the Statute of Limitations by a discharge in bankruptcy or other similar defence waives the defence by a new promise rather than creates a new cause of action. This explanation, however, seems unsatisfactory for several reasons. First, because though there are few principles in the law with vaguer boundaries than those applied under the name of waiver, it cannot be admitted as a general rule that a defence can be surrendered without either consideration or a promissory estoppel based on action in reliance on the promise, and even such an estoppel while sufficient to excuse the performance of conditions or to destroy a defence is insufficient as a substitute for consideration to support a promise.12 A bare agreement to surrender defences other than those within the special classes under consideration is not generally recognized as binding.13 For the same reason a promise to surrender the defence of the Statute of Limitations itself is not binding in regard to torts, and perhaps some other forms of action.14 If an agreement to surrender a defence were ever effectual as such without consideration or estoppel, it should be as effectual in one form of action as in another. Again, a new promise to pay a barred debt, if made after action brought is ineffectual.15 If the new promise took effect as a waiver of defence it should be good at this time. Moreover, the debtor's promise is to pay the debt, not to give up a particular defence, and the distinction is important.16 But the strongest reason for refusing to accept the doctrine of waiver is because it is well recognized that the new promise and not the old indebtedness is the measure of the creditor's right. This is so stated expressly in the cases 17 and is proved by a number of decisions which are well established law. Conditional promises are binding.18 Promises of partial performance are binding; 19 promises to pay in instalments are binding; 20 a new promise by a joint debtor binds him separately.21 The only countervailing arguments of importance are (1) that in many jurisdictions the action is based on the old obligation. As to this it may be said that in the first place in many jurisdictions the law is otherwise;22 but more particularly that in England and and in jurisdictions which have followed England in allowing an action on the old indebtedness, it has been generally recognized that this form of pleading is anomalous and that the creditor's right is really based on the new promise;23 (2) that in some cases a new promise has been held to impose further liability for a statutory period such as was applicable to the original indebtedness.24 Except where such decisions can be sustained under the words of particular statutes, they Been open to objection both theoretically and practically.
10 See supra, Sec. 147.
11 See supra, Sec. 157.
12 See supra, Sec. 139, and infra, Sec.Sec. 679
13In Monkman v. Shepherdson, 11 Ad. & E. 411, a servant had committed a breach of duty justifying the master under the terms of the contract in refusing to pay his wages. The master promised to waive his defence, but the promise was held not to bind him. See also Green v. Coos Bay Wagon Road Co., 23 Fed. Rep. 67, 70; Danforth v.
Pratt, 42 Me. 50; but see Bell v. Smith, 99 Mass. 617; Cahill v. Patterson, 30 Vt. 592; Patnote v. Sanders, 41 Vt. 66, 98 Am. Dec. 564. See further, infra, Sec.Sec. 693, 763 et teq.
14 See supra, Sec. 186.
15See supra, Sec. 197.
16 See supra, Sec. 184.
17 See infra, Sec. 196.
18 See supra, Sec. 182.