
    
      Hagan vs. Casey.
    Tebspass quare clausum : (1,2.) Damages in, no lam to subsequent ao-tionfor subsequent üa/mages. "
    
    Practice : (3.) "Warner of affldmit on appeal.
    
    1. Judgment for damages in an action of trespass qua/re clausum will not Lar a subsequent action for damages resulting from the same trespass, but which had not accrued at the time of, and were not included in, such former judgment.
    2. Thus, where the damages recovered in the former action were for injuries to the close itself on account of defendant’s stallion breaking into it, this will not bar a subsequent action for damages resulting to plaintiff in consequence of bis mare running in said close, having been gotten with foal by said stallion; the fact of her being with foal not being known, and the damage to plaintiff therefrom (through loss of her work, checking of her growth, etc.), not having accrued when the former action'was tried.
    3. Where, on appeal from a J. P., the defendant, to entitle himself to a trial d& novo in the circuit cohrt, is required to file and serve a certain affidavit (laws of 1864, ch. 263), if the respondent goes to trial without objecting to the absence of such affidavit, he waives his right, and cannot urge the objection on appeal to this chart.
    APPEAL from the Circuit Court for Dodge County.
    . ' Action of trespass guare clausum, brought before a justice of the peace. The complaint alleged that in the month of August, 1869, the plaintiff, Hagan, was in possession of a mare colt, about two years old; that defendant was in possession of a horse, which he negligently allowed to enter plaintiff’s premises and to coyer plaintiff’s mare, in consequence of which a colt was delivered by said mare on the 25th of July, 1870, thereby damaging plaintiff in the injury to his mare and loss of her labor, to the amount of one hundred dollars. The answer denied the allegations of the complaint, and alleged, further, that before the commencement of this action, plaintiff had recovered judgment against defendant before a justice of the peace for the same cause of action. Judgment was had for plaintiff, from which defendant appealed to the circuit court.
    Upon the trial the plaintiff testified that about the 26th or 27th of August, 1869, he saw defendant’s stallion in the pasture with Ms (plaintiff’s) mare, and that afterwards and up to the 16th of September, the stallion was there on and off, sometimes as often as twice a day, and that his mare was delivered of a colt on the 25th of July following, whereby he lost the use of Ms mare from the 8th of July until some time in August. One Patrick Hagan also testified for plaintiff that- he had seen defendant’s horse in the pasture with plaintiff’s mareteu or twelve times, but that he never saw the horse cover the mare.
    
      Defendant, thereupon, moved a non-suit, for the reason that the evidence showed no cause of action, which motion was overruled. The evidence for the defendant, which was then offered, showed that one Me Govern, a neighbor of the parties, had a horse of about the same age with defendant’s, and closely resembling it in appearance, and that this horse was seen with plaintiff’s mare after the harvest of 1869, the precise time not being fixed. Defendant then offered in evidence a transcript of the record of a judgment recovered before a justice of the peace by the same plaintiff and against the same defendant, for damages incurred by defendant’s horse and bull breaking into plaintiff’s premises between the 1st and 22d days of September, 1869, which suit had been begun and judgment had been recovered before the commeneement of this action. The admission of the record was objected to by plaintiff, but the objection was overruled. The court refused to instruct the jury, at the request of defendant, first, that the judgment in evidence between the parties, dated October 9, 1869, was a bar to this action, and, second, that if there was no evidence to show that this cause of action was not included in the evidence on the trial of the former suit, then the former action was a bar to this. Yerdict for plaintiff, and a motion to set asidé the verdict and for a new trial being overruled, defendant appealed from the judgment.
    
      Harlow Pease., for appellant,
    argued, among other things, that the court erred in refusing the first and second instructions asked by defendant, since the former judgment barred this action. A judgment is final and conclusive upon the parties, not only as to matter! actually determined, but as to all matters which the parties might have litigated and had decided under the pleadings in the cause. In other words, everything covered by the pleadings is presumed to have been litigated and determined. Embury v. Connor, 8 Corns. 511; Cowen & Hill’s Notes to Phillips Evidence, 804 to 810, 971,2. &hejoardsonv. Oreen, June term, 1871, unpublished. The pleadings in tlie former suit coyer and include everything in issue in this action. Damages caused by negligent acts may be proved under an averment of wrongful, willful or malicious acts. Frank v. Avery, 21 Wis., 166.
    Orion, MuCberger & Gardner, for respondent,
    contended that there was no error in refusing the first instruction ashed by defendant, since the cause of action in this suit accrued after the commencement of the former action, and did not then exist and from the nature of the case could not have existed. The doctrine of res adjudicata is limited in its application to those matters which the parties under their pleadings, or the issue joined in the former action, might legitimately have controverted and have had decided, by the verdict and judgment, and has never been so extended as to compel one party having several different causes of action against another, to join them in one action because they were of such a character that the law would permit their union. Eastman v. Porter, 14 Wis., 39.
   Cole, J.

We do not think there was any error in the refusal of the court to grant the nonsuit. The evidence tended to prove, indeed did prove, that the defendant’s young horse had been seen several times in the same pasture with plaintiff’s mare, about a year before she had a colt It was very true that no witness was able to testify that he had ever seen the horse cover the mare, but the fact that the animals were together about the time the mare was got with foal by somebody’s horse, was a circumstance to go to the jury upon the question whether the defendant’s horse was the sire of the foal, or not. And we may, in this connection, dispose of another objection raised by defendant’s counsel, that the verdict was unsupported by evidence, and should have been set aside. According to our view of the testimony this objection is untenable. There was evidence which justified the verdict. It is said there was as much proof to show that McGovern's horse got the plaintiff’s mare with foal as that the defendant’s horse did it. This is a mistake. The defendant’s borse was seen several times in tbe pasture-with plaintiff’s mare. No witness swears to seeing McGovern’s borse in tbe pasture with tbe mare. It is true McGovern’s borse was seen in tbe defendant’s lot after harvest, and it was running in tbe road part of tbe time that summer. It was not impossible for it to be tbe sire of tbe foal, but tbe probabilities are strongly against that supposition. But at all events these questions were proper matter for tbe jury to determine upon tbe evidence submitted. ¥e are unable to say that tbe verdict has no sufficient evidence to sustain it.

It is claimed further that the court erred in not instructing the jury as requested by thé defendant that the judgment in the former action between the parties was a bar to this. Tbe former suit was commenced September 22d, 1869, for trespass qucire clausumfregit. It was alleged in the complaint in that action that the defendant bad at divers times between the 1st and 22d days of September, 1869, “ by bis stud-borse ,and bull ” trespassed upon the plaintiff’s close. Under this complaint the plaintiff might have recovered any damages which be bad sustained prior to the commencement of the suit to the amount claimed in bis complaint. But at that time it is obvious the damages claimed in the present suit did not and could not from the nature of the case exist. Tbe gravamen oí this case is that the defendant’s borse got the plaintiff’s mare with foal, which it is claimed injured the mare in her growth, and that the plaintiff was deprived of her use the next season, in consequence of the animal being in that condition. And it may be true that the damages resulting to the plaintiff by reason of bis mare having been got with foal is a legitimate consequence of the original trespass. But the former action was solely for that wrongful act, and for such damages as the plaintiff bad then sustained by it to bis close. These subsequent damages did not then exist and of course could not possibly have been adjudicated in that action. No evidence could have been submitted to the jury in respect to them, and they could not then have been litigated. That the mare was with foal was a fact not developed or known when the former action was tried, and how her being in that condition would afféct her growth, or whether it would prevent the plaintiff from using her on his farm, as he otherwise might do, were matters not disclosed until many months afterwards.

The principle is well .settled, that matters which have been once determined by judicial decision cannot be again drawn into controversy as between the parties .and privies to the action ; but this only extends as far as the subject matter of the second suit is substantially the same as that of the first. Had the plaintiff waited until September, 1870, before he brought his action for the trespass to his close, he might have recovered in that suit by way of special damage for the loss occasioned by reason of the defendant’s horse getting his mare with a foal. But he would .have had to lay the foundation for this special damage in his complaint. But no such special damage was alleged in the former suit and could .not be, for the obvious reason that none such had been sustained. Por any damage done to the plaintiff’s close by the horse and bull, the former recovery is a complete bar. But it is very apparent that the injury complained of in this suit was not a matter which was or could be litigated or dra vn in question in the former action. The subject matter of this action did not then exist, and could not have been within the issue .of the former adjudication. The counsel in this case do not differ as to the conclusiveness of a former recovery upon the cause of action there in issue and determined. They only differ as to the application of that rule of law. It seems to us .that it cannot apply here, for the obvious reason that the matter for which the plaintiff now sues has never been heard or determined. The transcript of the docket of the justice-in the former action .abundantly proves of itself, that the particular matter of this suit did not come in question. And this remark is all we deem it. necessary to say in answer .to the exception to the refusal of the court to give the second special instruction asked by tbe defendant. In order to make a record evidence to conclude any matter, it should appear tbat tbat matter was in issue. It did not appear from tbe transcript of tbe justice’s docket tbat tbe cause of action herein was included in tbe former suit, but tbe contrary inference arises therefrom. Tbe objection tbat tbe plaintiff’s affidavit for a trial de novo in tbe circuit court was not served on tbe defend■ant or filed with tbe clerk eight days prior to tbe term at which tbe appeal was tried, as required by chap. 262, Laws of 1864, was'not taken in tbe court below and was waived by tbe parties going to trial.

It follows, from these views, tbat tbe judgment of tbe circuit court must be affirmed.

By the Court. — Judgment affirmed.  