#### W. B. COOPER v. W. A. HAIR.

(Filed 22 October, 1919.)

Judgment — Credits—Execution Suspended — Reference.

Where, under claim and delivery in an action, plaintiff has seized per- ‘ sonal property of the defendant, including certain notes, which should' have been allowed as a credit to the defendant by the referee, but not-considered by him, though the question had been raised by the defendant’s' pleadings and exceptions, the execution on the judgment confirming the report adverse to defendant will be suspended until the proper amount of the credit can be ascertained and given. Smith v. French, 141 N. C., 1, cited and approved.

Appeal by defendant from Oalvert, J., at the August Term, 1919, of BlADEN.

This is an action on two notes, one for $1,254 secured by an agricultural lien, and the other for $287.78, secured by notes deposited as collateral, and an account for fertilizers also secured in said lien.

The plaintiff sued out claim and delivery papers in the action under which twenty-five bushels of corn and the collateral notes were seized, and delivered to the plaintiff in January, 1916.

*658Tbe issues joined between tbe parties were referred by consent and tbe referee bas made a full report except tbat be does not find tbe value of tbe notes delivered to tbe plaintiff, and tbe defendant bas received no credit therefor, altbougb in bis answer be demanded tbat tbe plaintiff be charged with tbe value of tbe notes, and be made tbis same demand in bis exceptions to tbe report of tbe referee, and at tbe time tbe judgment was signed.

Judgment was entered in favor of tbe plaintiff, and tbe defendant appealed.

Bayard Clark, McLean, Varser, McLean & Stacy, and Sinclair & Dye for plaintiff.

E. F. McCulloch, Jr.,, for defendant.

Pee Cubiam.

Tbe defendant is entitled to be credited witb tbe value of tbe notes seized in' tbis action and delivered to tbe plaintiff, under tbe authority of Smith v. Branch, 141 N. C., 1, and tbe execution upon tbe judgment is suspended until tbis amount can be ascertained by reference or otherwise, and due- credit be given.

We have examined tbe other exceptions relied on by tbe defendant and find no error.

Modified and affirmed. .