The opinion of the court was delivered by

By the demurrer to the plea, the plaintiff admits that the cause of action set forth in the new assignment did not accrue within six years and thirty days prior to the death o the intestate. The action being assumpsit upon a contract, 'an the plea a proper one to that form of action, if the fact theie admitted is true, the plea furnishes a full defence to the auction. But the plaintiff now contends, notwithstanding this admission, that the cause of action set forth in the new assignment must, from the allegation of the breach of the contract therein con tained, have accrued within six years and thirty days prior to the death of the intestate, so that the plea is no answer. If this contention is true, the plaintiff should have traversed, instead o demurring to the plea. The traverse would put in issue the allegations of the plea and be consistent with his contention in regard to the allegations of the breach of the contract contained in the new assignment, and the pleadings would be closed. He would have obtained all that he .endeavors to reach by^ the demurrer. By the demurrer he makes an admission which i» inconsistent with, and diametrically opposed to his present contention. He cannot be allowed to maintain such inconsistent > positions in regard to a single issue tendered by himself by the demurrer. The demurrer was properly overruled, and the many other questions discussed need not be considered.

The judgment of the County Court is affirmed and the cause remanded.