after stating the facts. We are of opinion that his Honor was in error in holding that the plaintiff did not state facts sufficient to enable him to submit an issue to the jury in regard to the alleged damage sustained by him for the eviction. While he could have demanded such an issue upon the rendition of the judgment of October Term, 1902, he Avas not compelled to do so. Section 1176 of The Code expressly secures to him the right to “recoArer damages of the plaintiff for his removal in such cases as the present. The question is settled by this Court in Woody v. Jordan, 69 N. C., 189. It is there said that the defendant who successfully resists an action of replevin may have his damages assessed in the original action but that he is not compelled to do so, and may have his separate action on the bond or on the case for damages sustained by the wrongful suing out of the writ and eviction. Mr. Justice Rodman says: “It must be, then, that the common law gave him full indemnity by means of a separate action for the damages for the taking and detention.” It seems from the statement of the case on appeal that his Honor was asked by the defendant to hold that the complaint did not state facts sufficient to constitute a cause of action against the defendant” for damages, for abuse of legal process, mental or physical anguish or malicious prosecution, and that the said complaint does not allege malice or want of probable cause, or special damages because of his eviction, *543“and moved tbe Court to dismiss tbe action as to any and all sucb alleged causes. Tbe motion was sustained. As we have seen, tbe judgment, wbicb is tbe record and 'controls in respect to wbat is decided, simply states that bis Honor ruled that tbe complaint did not allege any damage other than tbe loss of bis crop. We can not concur witb this construction of tbe complaint. We think it is sufficiently alleged that be suffered damages incident to bis wrongful eviction, i. e., “a shelter and support for bis family, etc.” We do not express any opinion in regard' to tbe character and nature of tbe damages wbicb be may recover upon tbe allegations. He alleges a wrongful eviction, and for this injury be may recover sucb damages as proximately resulted from sucb injury. His Honor should have submitted an issue involving this inquiry and instructed tbe jury in regard to tbe measure and kind of damages wbicb might be recovered. This Court has, in Remington v. Kirby, 120 N. C., 322, announced tbe principle upon wbicb punitive damages may be recovered.
We simply decide that upon tbe complaint tbe plaintiff was entitled to have an issue as to bis actual damages. To this end there must be a new trial.
IN defendant's appeal.
His Honor Judge Winston at tbe October Term, 1902, rendered judgment that tbe plaintiff be restored to tbe possession of tbe land from wbicb be bad been -wrongfully evicted, and recover one-balf tbe crops made. Tbe execution of this judgment was prevented by tbe appeal of tbe defendant, who remained in possession until tbe expiration of tbe plaintiff’s term, gathered and sold tbe crops. While it may be that tbe present plaintiff may have bad tbe value of tbe crops ascertained and judgment therefor at tbe next succeeding term of Court, tbe *544present defendant baying failed to perfect or prosecute bis appeal, be was not compelled to do so. In this action, he relies upon the judgment as an estoppel upon the defendant. It is an estoppel to the extent of what was decided or should have been decided. .It does not operate to prevent the present defendant from showing the value of the crop and what portion of it he is entitled to retain for advancements made before the eviction under the terms of the contract. By his wrongful act in evicting the plaintiff, he does not forfeit his rights under the contract and the statute as landlord which had accrued to him. The record shows that the plaintiff was evicted about May 1; that the defendant furnished guano, cotton-seed meal and cotton-seed used upon the crops. The date at which these articles were furnished is not given, but we may take notice of the season for planting and find that they must have been purchased or furnished at or about the time of the eviction. We infer from the record that the crop was not planted, as the controversy grew out of a difference between them as to what crop should be planted. However this may be, the defendant should be allowed a credit for the guano, cotton-seed meal and cottonseed used in planting and making the crop, as the use of them was necessary to the planting and making the crop and in no way affected by the eviction. In regard to the amount paid for labor, the defendant may not have credit. Having, as the record shows, and for the purpose of disposing of this appeal, conclusively so, • wrongfully evicted the plaintiff and prevented him from doing the work, he can not charge him for having it done by some other person. This would be to take advantage of his own wrong.
We are not sure that we understand the last two items on the account for corn and hay furnished to feed the mules “over amount furnished.” It does not appear when or under what circumstances these articles were furnished. It *545is possible that these questions may be adjusted under the advice of the intelligent counsel representing the parties. There are few controversies more difficult to adjust than those arising out of farming contracts. It is a subject of congratulation that they are usually settled by mutual concessions. This case would, as it seems to us, seem to offer an opportunity to do so. There must be a
New Trial.
in defendant’s appeal. I dissent in this case from the opinion and judgment of the Court in the defendant’s appeal. I can not agree with the Court as to the legal force and effect of the judgment awarding to the plaintiff in this case, who was the defendant in the other suit, one-half of all the crops grown on the land. The defendant Brodie, who was the plaintiff in that suit, had his day in Court and full opportunity to show that Burwell was not entitled to one-half of the crop, but to one-half less the part to be retained by him for advancements made before the eviction. If Brodie Avas entitled to any deduction on account of ad-A'ancements, then Bunvell Avas not entitled to one-half of the crop, and yet that is precisely what the Court decided Avhen the parties Avere at issue as to Avhat were their respective rights in the crop. The judgment or decree of a court possessing competent jurisdiction is final as to the subject-matter thereby determined, and as to every other matter which the parties by the exercise of reasonable diligence might have litigated in the cause and which might have been decided or determined therein. Clark, J., in Wagon Co. v. Byrd, 119 N. C., 460, thus states the rule: “The plea of res judi-cata applies, except in special cases, not only to the points upon which the Court was required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject in litigation and *546which the parties, exercising reasonable diligence, might have brought forward at the time and determined respecting it,” citing 1 Herman on Estoppel, sections 122 and 123. I do not think it can be successfully contended that the defendant Brodie did not have full time and opportunity to bring forward the matter of advancements, now claimed to have been made by him to Burwell, and to have his right to so much of Burwell’s half of the crop as was necessary to pay them adjudicated. The point was directly presented in that action. Tylor v. Capehart, 125 N. C., 64. The judgment declares that Burwell is entitled to one-half of the crop, and that finding and determination preclude the other question now attempted to be raised. Bryan v. Alexander, 111 N. C., 142.