#### J. W. GODWIN v. J. D. GARDNER.

(Filed 5 October, 1921.)

Pleadings — Issues—Evidence—Nonsuit—Demurrer—Trials.

Where the complaint states a good cause of action to recover upon defendant’s notes secured by chattel mortgage, and the chattels are taken into possession by claim and delivery, which in turn are delivered to an intervener under bond for possession, the answer of the intervener stating that the defendant’s property had been taken upon his adjudication as a. bankrupt and his property thereunder distributed according to their respective priorities, raises matters of defense and are pleas in bar, which may neither be determined by motion as of nonsuit or on demurrer ore terms.

Appeal by plaintiff from Gramner, J., at April Term, ■ 1921, of HERTFORD.

Civil action, founded on contract and growing out of a certain promissory note and mortgage executed by the defendant and delivered to the plaintiff on 19 June, 1915. As an ancillary remedy, plaintiff seized the mortgaged property and took same into his possession under a writ of claim and delivery at the time of issuing summons. Jenkins & Boyette subsequently intervened and claimed title to said property by virtue of a prior mortgage, antedating that of the plaintiff’s. Upon the execution of a bond, the property was turned over to the interveners.

The defendant filed no answer, but the interveners replied and set up, as an affirmative defense, that since the institution of this action the defendant had been adjudged a bankrupt, and, upon order of the Federal Court, the mortgaged property had been turned over to the trustee in bankruptcy. It was further alleged, in bar of the plaintiff’s right to *98recover, tliat all tbe assets of tbe defendant, J. D. Gardner, bad been administered in said court' — tbe plaintiff and other creditors being paid tbeir pro rata part, according to tbeir respective priorities — and tbat tbe defendant bad been duly granted bis full discharge by tbe bankrupt court.

Upon motion, there was a judgment as of nonsuit entered on tbe pleadings. Plaintiff appealed.

Boswell 0. Bridger, 8. Brown Shepherd, and N. G. Fonville for plaintiff.

No counsel for defendant.

Stacv, J.

While it is stated in tbe record tbat a judgment of nonsuit was entered on tbe pleadings, we will assume tbat tbe action was dismissed on a demurrer ore terms. But, in either view, tbe judgment was erroneous.

Matters set up in defense, or as a bar to tbe plaintiff’s suit, and requiring proof, may not be considered upon a demurrer. Wood v. Kincaid, 144 N. C., 393.

A good cause of action is stated in tbe complaint; hence, tbe judgment of tbe Superior Court must be set aside and tbe parties will proceed as they may be advised. Tbe other questions discussed in plaintiff’s brief are not before us for decision.

Reversed.