#### Elias B. Baldwin v. Jacob Baldwin.

Statute of Limitations—Acts of 18Í9 and 1873—Netv Promise,

1. A payment in 1875 on a note executed in 1868, being within the Statute o£ Limitations of 3872, only extended the note for ten years.

2. Under the Act of 1872 a new promise must be in writing.

[Opinion filed March 20, 1888.]

In ebbob to the Circuit Court of Warren County; the Hon. John J. Glenn, Judge, presiding.

Mr, James W. Davidson, for plaintiff in error.

Mr. William X. Stewaet, for defendant in error.

Bakek, J.

In Zeigler v. Tennery, 23 Ill. App. 133, we held that where a promissory note was executed while the Limitation Act of November 5,1849, was in force, and a payment was made thereon after July 1, 1872, when the Statute of Limitations, approved April 4, 1872, went in force, such payment did not have the effect to extend the Statute of Limitations for a period of sixteen years from the date of the pay*177ment, as if under the Act of 1849, but was only effective to extend the period of limitation for ten years, the period of limitation fixed by the Act of 1872. We based our decision upon the theory the new promise operated as a new delivery of the note. Sennott, Adm’r, v. Horner, 30 Ill. 429; Kallenbach v. Dickinson, 100 Ill. 427.

We also decided, in Zeigler v. Tennery, that a promise, not in writing, made after the Statute of 1872 went in force, to pay a note executed while the Act of 1849 was in force, can avail nothing and is not binding, for the reason such promise woiVd be governed by Sec. 16 of the Limitation Act of 1872, which requires the new promise to pay to be in writing. Zeigler v. Tennery is on all fours with this case, and disposes of both of the questions involved herein.

Here, the payment was made on the note in January, 1875, and only revived the note for ten years from that date, and this suit was not brought until April, 1887. The new promise relied on here was made in 1880, and was not in writing.

There is no error in the record. The judgment is affirmed.

Judgment affirmed.