#### L. H. FOCHTMAN v. WALTER GREER.

(Filed 7 December, 1927.)

1. Limitation of Actions — Pleadings—Courts—Justices of the Peace — Appeal — Trial de Novo — Discretion.

An appeal from a court of a justice of the peace is tried ate novo in the Superior Court, C. S., 661, and when the account sued on is admitted in the former court, it is discretionary with the trial judge to permit the plea of the statute of limitations which is necessary to defendant’s right to set it up.

2. Actions — Interveners—Burden of Proof.

The burden of proof is upon the intervener in an action.

Appeal by defendant from Sinclair, J., and a jury, at May Special Term, 1927, of Ashe.

No error.

W. B. Austin for plaintiff.

W. B. Bauguess for defendant.

Pee Curiam:.

Plaintiff brought an action against defendant on a promissory note, before a justice of the peace. A warrant of attachment was sued out at the time and service was had by publication. We are bound by the record. It discloses that when the cause came on for trial before the justice of the peace defendant, through his attorney, entered a special appearance, admitted the correctness of the account, and moved to vacate the attachment on the ground that defendant was a resident of this State. This motion was overruled and judgment was rendered in favor of the plaintiff, from which the defendant appealed to the Superior Court. Subsequent thereto Emma Greer and Fay Graham intervened, alleging ownership to certain personal property at*675tached in tbe action. Tbis issue was tried in tbe Superior Court. Tbe jury decided against tbe interveners. Tbe attorney wbo appeared in tbe justice of tbe peace’s court for defendant represented tbe inter-veners in tbe Superior Court.

Tbe burden of tbe issue tó be answered by tbe jury was upon tbe interveners. Sugg v. Engine Co., 193 N. C., p. 814.

From tbe record we find tbat in tbe justice of tbe peace’s court defendant “admitted tbe correctness of tbe account.” In tbe Superior Court defendant offered to plead tbe statute of limitation, tbrougb tbe same attorney wbo represented tbe interveners and wbo bad entered a special appearance for defendant in tbe justice of tbe peace’s court and moved to vacate tbe attachment on tbe ground tbat defendant was a resident, but admitted tbe correctness of tbe account. Tbe court refused to allow tbis to be done. On an appeal to tbe Superior Court tbe trial is de novo, “a new trial of tbe whole matter.” C. S., 661. Tbe defense of tbe statute of limitation, to be available, must be pleaded. 8 Eneye. Dig., N. C. Eeports, p. 887, see. 134, and cases cited.

Defendant did not plead tbe statute of limitation, but admitted in tbe justice of tbe peace’s court tbe correctness of tbe debt. Tbe leave to file answer in tbe Superior Court and plead tbe statute of limitations, under tbe facts and circumstances of tbis case, was in tbe discretion of tbe court below. Defendant cannot “blow hot and cold in tbe same breath.”

Tbe cases of Woodard v. Milling Co., 142 N. C., p. 100, and White v. Peanut Co., 165 N. C., p. 132, are not in conflict with tbe position here taken. We find

No error.