We cannot agree with counsel for respondent that what was said by Mr. Justice BURNETT in the Peacock case was dictum and unnecessary to a decision. It was pertinent to the issue and, furthermore, is supported by the weight of authority: Cobbey on Replevin (2 ed.), §§ 847, 893; Freeman on Judgments (5 ed.), § 597; Van Horne v. Treadwell, 164 Cal. 620 ( 130 P. 5); Jackson v. Morgan, 49 Ind. App. 376 ( 94 N.E. 1021); Stevens v. Tuite, 104 Mass. 328; White v. VanHouten, 51 Mo. 577; Teel v. Miles, 51 Neb. 542 ( 71 N.W. 296); Mounts v. Murphy, 126 Ky. 803 ( 104 S.W. 978); Drewyour v. Merrell, 112 Mich. 681 ( 71 N.W. 486). For authority to the contrary, see Bowen v. King, 146 N.C. 385 ( 59 S.E. 1044); Crump v. Love, 193 N.C. 464 ( 137 S.E. 418); Gould v. Hayes, 71 Conn. 86 ( 40 A. 930); Johnson v. Boehme, 66 Kan. 72 ( 71 P. 243, 97 Am. St. Rep. 357); 34 Cyc. 1571. We are not unmindful that the statutory provisions of the various states relative to assessment of damages in replevin actions differ as to being permissive or mandatory.

In Moore v. Edwards, 192 N.C. at p. 448, it was said: "We can find no statutory provision prohibiting separate actions in a case of this kind. It is no doubt better practice to try out the entire controversy in one action." See Polson v. Strickland, 193 N.C. 299; Crump v. Love, 193 N.C. 464. Second. "Where, from all the evidence before the court the jury can draw but one inference, will a new trial be granted on account of error in the charge of the trial judge?

But a matter is not in issue in the suit which was neither pleaded nor brought into contest therein, although within the general scope of the litigation, and although it might have determined the judgment if it had been set up and tried." Hardison v. Everett, 192 N.C. 371; R. R. v. Story, 193 N.C. 362; Crump v. Love, 193 N.C. 464. For the reasons given, the judgment in the court below is

Pretermitting the question as to whether res adjudicata or estoppel may be pleaded, other than by answer ( Upton v. Ferebee, 178 N.C. 194), we deem it sufficient to say that the gravamen of the plaintiffs' complaint was neither set up nor litigated in the foreclosure proceeding. Crump v. Love, 193 N.C. 464; Polson v. Strickland, ibid., 300; Holloway v. Durham, 176 N.C. 550; McKimmon v. Caulk, 170 N.C. 54; Clarke v. Aldridge, 162 N.C. 326; Gillam v. Edmonson, 154 N.C. 127. Hence, the authorities cited by appellants, Wagon Co. v. Byrd, 119 N.C. 462, and others, are not controlling on the allegations presently appearing of record.

No error. Cited: Rogers v. Booker, 184 N.C. 186; Motor Co. v. Sands, 186 N.C. 734; Garner v. Quakenbush, 188 N.C. 184; Trust Co. v. Hayes, 191 N.C. 544; Crump v. Love, 193 N.C. 466; McCormick v. Crotts, 198 N.C. 667; Credit Corp. v. Saunders, 235 N.C. 371.