The Plaintiffs and the Defendants having agreed to refer the masters in dispute between them to arbitrators, takes the case out of the statute of limitations, and the present suit having been brought within three years after the reference had been entered into and made a rule of Court, the present Plaintiffs are entitled to recover in this suit.
Administrators of Colkings v. Surviving Partner of Thackston & Co., 1 N.C. 93, 1 Cam. & Nor. 93 (1800)
June 1800
·
North Carolina Court of Conference
1 N.C. 93, 1 Cam. & Nor. 93
The Administrators of Elias Colkings vs. the surviving Partner of James Thackston & Co.
This was an Action on the Case brought in Fayetteville Superior Court of Law, pleas general is*94sue, statute limitations. The Jury sworn find the Defendant did assume and assess the Plaintiff's damages to £76 8 2, subject to the opinion, of the Court on the following points: In July term, 1792, two actions were depending in the County Court of Cumberland, between John Burgwin, surviving partner of James Thackston & Co. against the present Plaintiffs. The plea of set-off was pleaded, and the death of James Thackstone was suggested at that term, and an order was made referring both causes to John Eccles and John Winslow, as by the records of the County Court will appear, and which are to be considered as part of this case ; that on the 10th day of October, 1792, the said referees made their award as follows: " We, the Subscribers, appointed referees in the suits depending in the County Court of Cumberland, between the surviving Partners of James Thackston & Co. and the Administrators of Elias Colkings, having examined the several accounts between the parties, and taken the Testimony of Lewis Barge, John Baker, and Archibald M'Mullan, find a balance due the estate of Elias Colkings, as above stated.
Fayetteville, Oct. 10, 1792.
Signed ,
JOHN ECCLES.
JOHN WINSLOW.
That the award was returned to the County Court, and at January term, 1793, of said Court, judgment was given thereon in both suits for the Defendants, the Administrators of Elias Colkings, that this action was brought within three years after the reference aforesaid. If the Court should be of opinion, that the above reference, award and judgment, are sufficient to take the cause of action out of the statute of limitations; or if the Plaintiff in *95this action can maintain it on the references and submissions aforesaid, then and in either of those cases, judgment is to be given for the Plaintitf on the verdict. But if the Court shall be of opinion that this action cannot be maintained either way, then judgment of nonsuit to be entered.