majority"> Allen, J.,

after stating the case: The defendant having-pleaded the statute of limitations,' the burden was on the plaintiff to prove that the cause of action accrued within the time limited for bringing it. Hussey v. Kirkman, 95 N. C., 66; House v. Arnold, 122 N. C., 222.

' If he relied on the fact that the submission to arbitration was under seal, or that the arbitrators, Lehman and Martin, adopted the seal, following the name of the arbitrator Griffith, it was incumbent on him to offer evidence of these facts, and having failed to do so, we must consider the case as upon a *83 submission and an award, not under seal, and in so considering it, tbe nature of the obligation imposed on the defendant will aid in determining whether the statute of limitations of three years or of ten years applies.

If it is a liability established by contract, or is an obligation arising out of contract, express or implied, the contract not being under seal, it would seem to follow that the limitation of three years, prescribed by Bevisal, sec. 395, subsec. 1, would be applicable, which is as follows: “An action upon a contract, obligation, or liability arising out of a contract, express or implied.”

In District of Columbia v. Bailey, 171 U. S., 170, Mr. Justice White quotes with approval from Morse on Arbitration and Award, that “a submission is a contract,” and that “the submission is the agreement of the parties to refer. It is, therefore, a contract, and will in general be governed by the law concerning contracts”; and from Witcher v. Witcher, 49 N. H., 176, that “A submission is a contract between two or more parties, whereby they agree to refer the subject in dispute to others, and be bound by their award, and the submission itself implies an agreement to abide the result, even if no such agreement were expressed.”

The question is discussed in Tullis v. Sewell, 3 Ohio, 513, and the Court says: “The liability of the defendant originates in the contract of submission that necessarily must precede the award. It. is from this contract that the arbitrators derive their authority as judges whose decision is to bind the parties. It is the submission, therefore, that is the foundation of the right claimed by the plaintiff, and it is only in virtue of the submission that the subsequent proceedings have a binding force. The action originates in the submission, and ought to correspond in character with it. If it is by deed, the remedy should be by debt or covenant. If by parol, or writing not under seal, it may be by assumpsit

We conclude, therefore, that the cause of action by the plaintiff is one arising out of a contract, not under seal, and as more than three years elapsed after the date of the alleged payment, before the commencement of this action, that the right of recovery is barred.

*84 The case of Rank v. Hill, 37 Am. Dec., 483 (2 W. & S., 70 Pa.), principally relied on 'by the plaintiff/seems to be in point, but the decision was upon the authority of Hodsden v. Harridge, 2 Saund., 64 b., which was an action upon an award under seal, and in which it was held that the action was not barred under the Statute of 21 Jac. I., ch. 16, providing that “All actions of debt grounded upon any lending or contract without specialty shall be sued within six years,” and this statute was in force in Pennsylvania. Wickersham v. Lee, 83 Pa., 422.

The English case was- based on the language of the statute, and as the award was under seal and it did not appear that the cause of action was “grounded upon any lending or contract without specialty,” the plea of the six-year statute of limitations was not sustained, and the Pennsylvania case first .referred to depended upon a construction of the same language.

In our opinion, his Honor decided correctly that, upon the facts in this record, the limitation of three years is applicable and that recovery on the cause of action is barred.

No error.

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