majority"> Avery, J.

An action between the same parties to recover the same land and damages for detention (including the value of timber cut down or destroyed), was brought to the Fall Term, 1887, of the same Court in which this cause was tried, and judgment in favor of the plaintiff, for the recovery of *128 the land and nominal damages, was rendered at the Fall Term, 1888. Therefore, if the defendant had set up the estoppel as a defence in his answer, it would have barred the plaintiff’s right of action, as plaintiff contended on the argument. Yates v. Yates, 81 N. C., 397; Tuttle v. Harrill, 85 N. C., 456; Gay v. Stancell, 76 N. C., 369. But his failure to plead the estoppel, specifically, deprives him of the right to avail himself of that defence. Blackwell v. Dibbrell Bros. & Co., ante.

But the defendant did plead, by way of new matter, that the action of claim and delivery would not lie to recover logs that had been severed from the land, while the defendant was in possession, and thereby availed himself of the very same principle that made the judgment in the former action a bar. It was held, that fodder which had been severed did not pass to the plaintiff in ejectment, wheu put into possession under a writ, while growing corn did .pass to him with the land, because he could recover the value of the fodder in his action for mesne profits. Moreover, the additional reason for confining the owner to his action of trespass for mesne profits was, that if the action of trover was allowed to be brought for the goods, it would subject to liability any person who bought a bushel of corn from the trespasser while in possession. Brothers v. Hurdle, 10 Ired., 490; Ray v. Gardner, 82 N. C., 454.

The motion for new trial was properly refused. The judgment is affirmed.

No error. Affirmed.

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