Perhaps it may be urged that this is a form of procedural agreement that needs no consideration. While stipulations in the course of action may not require a technical consideration,10 we know of no exception to the rule that a contract outside of litigation must have consideration. The waiver theory in spite of its plausibility on first appearance does not seem to be supportable.

The novation theory. We have not found in the books any statement of such a theory as applied to the question here under consideration, but apparently no other remains. According to this theory, a new promise operates to substitute a promise of immediate payment for the sanctional duty to pay damages. The sanctional duty to pay damages is, as we have shown, infrangible-it cannot be broken. It is, therefore, in existence at the time of the new promise. If the bar of the statute has not yet intervened, the accessory power of action is abbreviated to whatever extent the statute has run. If the bar has intervened, the accessory power of action has not been extinguished, but it has been reduced to a lower juristic level. It is the content of a mesonomic relation11 and it is a simple power of action subject to be defeated if opposed by the power in the debtor to interpose the bar of the statute. The new duty to pay damages differs from the one released in that it is accompanied by a complete power of action, one not abbreviated in time and not subject to be opposed by a conflicting power to plead the statute, for a new term.

The old sanctional claim is clearly good consideration if the creditor gives it up. May it be good consideration for the debtor's agreement to substitute the old claim (to damages) for a new claim to payment of the damages? Here for the first time we encounter no difficulty about consideration. The consideration is clearly of a legal nature and is not merely moral. While it is hard to see how the debtor has been benefited on the juristic face of things by such any arrangement, yet, formally, the creditor has been disadvantaged by giving up something of value-a claim to damages subject, it is true, to be defeated if the debtor wills. However peculiar such an arrangement may seem, there is no denying the fact that debtors often do make new promises both before and after the statute of

10. There seem to be but few decisions on this question. Without discussion, they appear to imply the necessity of consideration. Cf. Washoe Copper Co. v. Hickey (1912) 46 Mont. 363, 128 Pac. 584. The correctness of this view is open to considerable doubt.

11. In contrast with a fully enforcible or zygnomic relation. For an explanation of this terminology, see Cornell L. Q. VII 11.

limitations has intervened, and there is, furthermore, no denying the fact that the courts give effect to such arrangements.

The new promise idea is an anomaly. It is difficult to explain on grounds consistent with other legal doctrines. It is a potential, and as many hundreds of decisions testify, an actual disturber of elegantia, but yet an explanation must be given. The novation theory, we believe, supplies the need. It may be admitted, it is not a theory that fits very snugly the words of a new promise. It may, furthermore, be acknowledged that the promisor would be surprised to learn what he has accomplished in a unique juristic feat of prestidigitation by substituting for a sanctional duty a promise to pay an equivalent. No doubt he would fail to understand the result if the juristic operations were explained to him, but that the law holds him responsible is a stubborn fact.

That the theory is somewhat cumbersome is not an objection to it. The legal fact upon which it operates has made it necessary. Many parallels may be found in mechanics, in biology, and in other sciences. It is the simplest operation possible tested by the surrounding circumstances. It is no more legitimate in law than in the other sciences to attempt to reverse for special cases the basic doctrines. To accept the idea of moral consideration would be such a basic reversal. It is unnecessary. It would perhaps be much

simpler to explain the efficacy of a new promise on the ground of moral consideration. We should, however, sacrifice truth for a doubtful convenience if we took that course. Perhaps it would be simpler still to suppose that such a promise needs no consideration at all. That radical departure finds justification in the legislative doctrine which extends the power of action for a new term12 upon the giving of a new promise. But it may be urged against this that the statute is only declaratory of the common law and that there should not be a common law theory based on one ground and then a statutory theory based on another ground.13

12. Cf. Sutherlin v. Roberts 4 Oreg. 78, which applies this theory to a payment.

13. An illustration of this is when a distinction is made between statutory actions and common law actions; in the former, a demurrer being available to present the bar of the statute; while in the latter a plea is necessary: People v. Herr 81 Ill. 125; cf. Wall v. Chesapeake R. Co. 200 Ill. 66, 65 N. E. 632. Of this multiplication "by distinctions and refinements which the common sense of mankind cannot keep pace with," Lord Mansfield long ago complained: cf. the remarks of Best C. J. in A'Court v. Gross 3 Bing. 329. But oddly enough, Lord Mansfield in chief is charged with laying the foundations for the subversion of the statute of James: Lamar, J. in Brewster v. Hardeman Dud. (Ga. Sup. Ct.) 138 (145).

The novation theory differs in three respects from the new promise theory which is its only serious competitor. The new promise theory, which is not a promise theory at all, creates a new sanctional claim to damages without accounting for the old sanctional claim. Apparently, it continues to exist and apparently an action could be commenced upon it and be prosecuted to judgment if the debtor did not raise the bar of the statute. The novation theory, on the contrary, obliterates the sanctional claim and substitutes in its place not a new relation created by grant but a new relation based on a promise.

Secondly, the new promise theory substitutes one sanctional claim for another. This is highly anomalous and probably no like instance can be found anywhere in the law. A sanctional claim is never the creation of the parties; it is an automatic creation of the law-a sanction imposed for a breach of duty. The novation theory avoids that analytical difficulty. It involves a new promise to pay at once. The sanctional duty does not come before a breach. There is nothing anomalous in our law in duties of immediate performance which the parties do not expect to be performed immediately, but it would be more consistent with the practical view of what the parties intend, to suppose that if the debtor did not promise immediate payment that he intended to pay after the lapse of a reasonable time. Logically, the statute should commence to run after the expiration of that reasonable period and not from the date of the new promise.

Thirdly, the new promise theory fails in accounting for legal consideration. The creditor gives up nothing and the debtor suffers a new detriment. On the novation theory the creditor suffers the detriment of releasing his sanctional claim which is exchanged for an equivalent promise to pay it.

It will be noted that the new promise theory could easily be adjusted to the theory of creation not of a new sanctional claim but of an actual promise relation. No doubt, since the distinction between a sanctioned and a sanctional claim has not been observed either in the language or the reasoning of the courts, it is not unlikely that the real basis of many new promise theory decisions is that of a new promise relation. The constant use of the words 'new promise' implies that basis, but even though that be conceded, the agreement creating such a new promise under the new promise theory would still be unilateral, and the objection of consideration would remain. If the theory went so far as to extinguish the old

sanctional claim, it would simply be the novation theory as we have stated it. A new promise is found in both theories.

A distinction is sometimes made between new promises made before the bar has intervened and new promises made after the bar has intervened, it being held in many jurisdictions that a new promise before the bar has intervened extends the old cause of action,14 while a new promise made after the bar has intervened creates a new cause of action.15 In either case there is a novation or there is not a novation. If there is a novation, the statute runs from the date of the breach of the new duty. If there is not a novation there are two possible consequences: (a) if the promise operates as a valid promise not to plead the statute, the breach of that promise is actionable;16 or (b) the promise may be availed of by way of estoppel to avoid circuity of action.17

The distinction whether a promise is made before the bar or after the bar is a plausible one. Application of the novation theory seems unnatural, at least unnecessarily cumbersome, if the bar of the statute has not yet attached. Since the new promise cannot revive a duty already broken, and since it does not create a new duty to pay what is already owed, the most natural effect of the words, to give effect to the decisions, is to imply a promise not to plead the statute upon consideration of reasonable forbearance to sue. If the bar of the statute has already intervened the situation is so far changed that there is no room for the estoppel theory and the novation theory alone will satisfy the requirements of the doctrine of consideration.

One of the difficulties arising out of lack of a consistent theory is the question what actions are affected by new promises. It is generally held that a new promise affects only the action of assumpsit. 18 A new promise will not extend the statute of limitations of a tort action,19 of an action of debt,20 or upon a judgment.21 Where the theory of a new promise is that the old debt is revived22 it is said that unless the action is assumpsit a new promise cannot be replied

14. Deshler v. Cabiness 10 Ala. 959.

15. McCormick v. Brown 36 Cal. 180, 95 Am. Dec. 170; cf. the actio constitutoria: D. 13. 5. 18. 1.

16. East India Co. v. Paul 14 Jur. 253, 7 Moo. P. C. 85, 13 Eng. Rep. 811. Newell v. Clark 73 N. H. 289, 61 Atl. 555.

17.

18. Tanner v. Smart 6 B. & C. 603.

19. Except by way of estoppel: Armstrong v. Levan 109 Pa. St. 177, 1 Atl. 204.

20. Douser v. Shaw 28 N. H. 151.

21. Niblack v. Goodwin 67 Ind. 174.

22. Phillips v. Phillips 3 Hare 281.

since the action is not upon a promise.23 From the standpoint of pleading this seems logically correct, but where the theory is that a new promise operates as a waiver it is hard to see why a new promise should not operate on other actions as it does upon assumpsit. The same is equally true under the new cause of action theory and under the novation theory. Apart from the historical accidents. or misadventures of the matter, no reason is apparent why a new promise if it has any efficacy in any case should not be extended to all legal duties.2

24a

There are three classes of cases in particular where the favored old claim and waiver theories entirely fail to function.

1. Where there is a joint obligation the general rule is that a new promise by one after the bar has attached will not remove the bar as to the other obligor.25 It has also been held that where the bar has attached as to one of two joint creditors, the joint action is barred.26 A joint debt implies a single performance owed to or by two or more persons. The statute of limitations does not affect the substantive right but only the instrumental right. If the bar has attached, it attaches as to all the persons connected with the performance whether creditors or debtors. Consistently with the unitary nature of the performance, a new promise should either remove the bar of the debt as against all joint debtors" or else create a new legal relation, binding the promiser alone and abrogating the old relation, since what operates to release one (the promiser) releases the others.28 As applied to such a situation, the old claim and the waiver theory present insurmountable technical difficulties which the novation theory avoids.

2. Where there is a new promise to pay upon condition, the plaintiff must show performance of the condition.29 These conditional promises may be promises to pay in instalments, or after a certain time, or upon the performance of an act or the happening of an event. To attempt to support the old claim upon new condi

23. Hurst v. Parker 1 B. & Ald. 92.

24. Heyling v. Hastings 1 Ld. Raym. 421, 5 Mod. 425, 1 Salk. 29.
24a. Cf. Prof. Charles E. Clark in Yale L. Jour. XXIX 91 (95).
25. Boynton v. Spafford 162 Ill. 113, 44 N. E. 379, 53 Am. St. Rep. 274.
26. Davis v. Coblens 174 U. S. 719.

27. Morgan v. Métayer 14 La. Ann. 612. In Roman law, acknowledgment by part payment, etc., by one joint debtor of a joint debt inured to the benefit of the joint creditors and bound all the debtors, at least before the bar of the statute: C. 8. 40. 5 (de duobus reis).

28. Cf. Monidah Trust v. Kemper 44 Mont. 1, 118 Pac. 811, 1 Ann. Cas. 1912 D. 1326.

29. Wetzell v. Bussard 11 Wheat. 309; Rodgers v. Byers 127 Cal. 528.