#### Theophilus Falls *et al. Ex’r. of*Robert Simonton *v.*James McKnight.

Where A owed B, and made him a payment taking' his acknowledgment with a promise to refund, in case the payment exceeded the amount due, and upon a reference, the arbitrator found that B was overpaid: It was held, in an action upon the acknowlegment, that the statute of limitations did not begin to run until the award was made.

Is a submission to arbitration a waiver of the statute of limitations. Q.U?

Assumpsit, upon the following accountable receipt:

“ Received of *Robert Simon!on,*executor of *J..mes Heart, $*953 24 “ which I have received as an heir of *James Heart,*and if it is too much, “ I am to return the balance.

James Mcknight.”

Plea — The statute of limitations.

On the trial, before Dantee, Judge, at Iredell, on the Fall Circuit of 1831, the defendant having made out a *prima facie*case, in support of his plea ; the plaintiffs to rebut the defence, proved, that a petition was pending in the County Court of Iredell against *Simonton,*by the next of kin of *James*Heart; that in the year 1828, it was agreed between the plaintiffs and the next of kin, of whom the defendant was one, that the suit by petition should be referred to an arbitrator, “with power and authority to *422
      *a*allow the said executors, (the plaintiffs) such credits “ for .all receipts in their bands, which, in bis opinion, “ they would be allowed by law or equity that in pursuance of this submission, the arbitrator by bis award, found that the defendant bad been overpaid the sum of S 905. Judgment was entered according to the award, which was made made within three years of the commencement of the action.

His Honor instructed the jury, that the submission and award prevented the defendant from availing himself of the statute of limitations, and a verdict being returned for the plaintiffs, the defendant appealed.

*Badger,*for the defendant.

*Gaston, contra.*

Henderson, Chief-Justice.

The receipt given by the defendant to *Simonton,*contains a promise to account with him, if the sum received by the defendant exceeded that due by *Simonton.*We will leave out of the question what would be the effect of a long delay on the part of *Simonton,*and his then by his own motion without the co-operation of the defendant, fixing the amount of these claims, and demanding the balance according to the terms of the receipt. I say it is unnecessary to examine such a case with respect to the statute of limitations, for this is a very different one. So far from the adjustment of those claims, and the proof of the fact that .they fall short of the defendant’s accountable receipt, being the sole act of *Simonton*or his executors, they were forced on his executors by the active agency of the defendant, who was a plaintiff in the petition for an adjustment of the accounts, and brings to view by his act, the fact which shews conclusively the amount of his claim on *Heart’s*estate, viz: by an award of an arbitrator of his own choosing, according to which, a judgment was entered in the suit, wherein the defendant was one of the plaintiffs, and the present plaintiffs were defendants; which judgment stands in full form. After this can the defendant say that a cause of action did not accrue upon that receipt within three years next before the *423bringing of the action, when it was brought within a few months after the confirmation of the award? I disregard all that was said about the effects of agreeing to submit, upon *Heart’s*estate, to arbitration. It is sufficient to state, that in this case there is a promise to pay, should the sum mentioned in the receipt exceed the- defendant’s interest in that estate, and that has been ascertained by the defendant. When it was thus ascertained, the present cause of action arose*

Per Curiam — Judgment apfirmed.