Fernekes and another vs. The Supervisors of Milwaukee County. James Hickcox, for the respondent, to the point that in trials for what were formerly known as capital offenses, the jury must be kept together, and therefore in charge of an officer, cited Keenan v. The State, 8 Wis., 132; Rowan v. The State, 30 id., 129; State v. Dolling, 37 id., 396. COLE, J. The controverted items in the accounts of the plaintiffs were the charges for meals and lodging furnished the deputy sheriffs who attended upon the juries in the two murder trials. That the meals and lodging were actually furnished such deputies, and were reasonably worth the sums charged for them, are facts admitted by the learned counsel for the county; as it was also admitted that the deputies took charge of such juries by order of the municipal court. It was the duty of the deputy sheriffs, in obedience to the order of the court, to attend upon and take charge of the juries, from time to time, during the trial, and to keep them together until they had agreed upon their verdict or were otherwise discharged. From the necessity of the case, the deputies had to be in constant attendance upon the juries, and could not properly leave them, and go to their homes for meals and lodging. It appears that the juries were taken to the hotel of the plaintiffs for meals and lodging, and that meals and lodging were furnished to the deputies while thus in attendance upon them. Under these circumstances, we think the county is liable for the meals and lodging furnished the officers, necessarily in attendance upon the juries. It is true that, at the time of the Spellen trial, deputy sheriffs in Milwaukee county were entitled to a per diem fee of four dollars, which, it is said, was a liberal compensation for all services required of them by law. As a general rule, officers take their offices cum onere, and must defray their own personal expenses, such as hotel bills, railroad fares, etc. But we think the case presented is an exception to that rule, and does not come within the doctrine of Crocker v. Supervisors of Brown Co., 35 Wis., 284. The Dean vs. The Chicago & Northwestern Railway Company. juries likewise received a per diem, and yet the county board paid, without dispute, for meals and lodging furnished them. We think the same liability on the part of the county applied to meals and lodging furnished the officers in charge of the juries. It would be proper for the trial court, in these murder cases, to give some order or direction for furnishing meals and lodging to the jury and officer in attendance upon them, in some suitable place, so that the jury might always be under the charge of an officer. -- By the Court. The judgment of the circuit court is affirmed. DEAN VS. THE CHICAGO & NORTHWESTERN RAILWAY COMPANY. DAMAGES: (1) For animal killed by negligence. (2) Allowance of interest in actions for tort. EXCEPTIONS: (3) Must be specific. REVERSAL OF JUDGMENT. (2) Slight excess in damages. (4) Harmless inaccuracy in charge. 1. In assessing damages for an injury to live stock which necessitated its killing, only the net amount which should have been realized from a sale of it, after reasonable allowance made for time and trouble required in effecting the sale, should be deducted from the value of the stock. 2. For injuries to property, interest may be recovered from the commencement of the action, on the immediate damages (Chapman v. Railway Co., 26 Wis., 295); but whether an allowance of interest from the date of the injury would be upheld in any case, and, if not, whether such allowance of interest upon a sum less than $45 for a few months would justify reversal of a judgment, quære. 3. An instruction stated the rule of damages in other respects correctly, and added that interest might be allowed from the date of the injury. An exception "to said instruction and to each and every part thereof," held, not sufficiently specific to raise the question whether the time for which interest might be allowed was correctly stated. 4. A judgment will not be reversed for an inaccuracy in the charge which could not injure the appellant in view of the evidence. APPEAL from the Circuit Court for Milwaukee County. VOL. XLIII.-20 Dean vs. The Chicago & Northwestern Railway Company. At about six o'clock in the morning of September 6, 1875, as the plaintiff's servant was driving the plaintiff's cows across defendant's railroad in the city of Milwaukee, a passing locomotive ran against one of the cows and fatally injured her. This action is to recover damages therefor. The hip of the cow was broken, and all of her ribs on one side were broken from her backbone. The plaintiff saw the cow immediately after she was injured. He did not then ascertain the extent of her injuries, nor do anything with her, but went at once to his daily work, returning at six o'clock in the evening of the same day. Finding the cow still alive, he had her killed and skinned the same evening, and sold some of the meat for food. He received $8.50 for the meat sold and the hide. He testified on the trial (and his testimony is undisputed), that at the time she was injured the cow was worth $50 for milking purposes, and $40 for beef. The questions chiefly litigated on the trial seem to have been, whether the cow was injured through the negligence of defendant's employees in charge of the locomotive, and whether the plaintiff or his servant was guilty of negligence which contributed to the injury. At the request of defendant's counsel, the judge instructed the jury as follows: "If the cow was fit for beef, and not killed outright, and only so injured that it was fit for food, it was the duty of the plaintiff to dispose of her to the best advantage, and he had no right to abandon her wantonly and claim full value." The judge, of his own motion, further gave this instruction: "If you find for the plaintiff, you will find the value of the cow, deducting however from the value as you find it, the amount which plaintiff received from the disposition of her after she died; and plaintiff would also be entitled to receive whatever the balance would be, with interest upon it from that time to the present." Defendant excepted to" said last instruction or charge, and to each and every part thereof." Dean vs. The Chicago & Northwestern Railway Company. The jury found for the plaintiff, and assessed his damages at $45.30. A motion for a new trial was denied, and judgment entered pursuant to the verdict; and defendant appealed. For the appellant, a brief was filed by Dixon, Hooker, Wegg & Noyes, and the cause was argued orally by George H. Noyes. They contended, 1. That a judgment will be reversed, and a new trial granted, for inconsistent instructions, where the inconsistency may have misled the jury. Sears v. Loy, 19 Wis., 96; Gove v. White, 23 id., 282; Imhoff v. Railway Co., 20 id., 344; C., B. & Q. R. R. Co. v. Dunn, 61 Ill., 385; Miss. C. R. R. Co. v. Miller, 40 Miss., 45; South. R. R. Co. v. Kendrick, id., 374. 2. That the instruction as to the rule of damages given at defendant's request was correct, and that given subsequently in the general charge erroneous (Ill. Cent. Railway Co. v. Finnigan, 21 Ill., 646; T., P. & W. Railway Co. v. Parker, 49 id., 385; T., P. & W. Railway Co. v. Sweeney, 41 id., 226; Loker v. Damon, 17 Pick., 284; Douglass v. Stephens, 18 Mo., 362; 2 Greenl. Ev., 254, § 261, and note); and that, upon the facts shown by plaintiff's own evidence, the jury should have been allowed to exercise their common sense and information as to what plaintiff's necessary and reasonable damage would have been if he had exercised proper diligence after ascertaining the injury. Prahl v. Gerhard, 25 Wis., 466-7; Eaton v. Woolly, 28 id., 628–32; Blair v. Railway Co., 20 id., 262; Jef. Ins. Co. v. Cotheal, 7 Wend., 72; Wells on Questions of Law and Fact, 444, § 535. 3. That in actions of tort, interest may be allowed by the jury, but they should not be instructed that plaintiff is entitled to it as matter of law (Sedgw. on Dam., 385-6; 2 Parsons on Con., 382, and note; Lincoln v. Claflin, 7 Wall., 132; Meyer v. Railroad Co., 64 Mo., 542; Atkinson v. Railroad Co., 63 id., 367; Kenney v. Railroad Co., id., 99; Walrath v. Redfield, 18 N. Y., 457; Holmes v. Misroon, 3 Brev. (S. C.), 209; Fowler v. Davenport, 21 Texas, 626); and that if the contrary doctrine be regarded as established here by Chapman v. Dean vs. The Chicago & Northwestern Railway Company. Railway Co., 26 Wis., 295, and McArthur v. G. B. & M. Canal Co., 34 id., 139, still it was error to direct the jury to allow interest from the date of the injury, instead of from the commencement of the action. McMahon v. R. R. Co., 20 N. Y., 463, 469-70; McCollum v. Seward, 62 id., 316-318; Renss. Glass Factory v. Reid, 5 Cow., 587, 623–633; Anon., 1 Johns., 315; Campbell v. Mesier, 6 Johns. Ch., 21; Thompson v. Stewart, 3 Conn., 171; Porter v. Bussey, 1 Mass., 436; Hubbard v. R. R. Co., 11 Met., 124; Gay v. Gardiner, 54 Me., 477; Brackett v. Edgerton, 14 Minn., 174; McIlvaine v. Wilkins, 12 N. H., 474; Simons' Ex'rs v. Walter's Ex'r, 1 McCord (S. C.), 97; Marsh v. Fraser, 37 Wis., 149; Lusk v. Smith, 21 id., 27; Gammell v. Skinner, 2 Gall., 45. Jared Thompson, Jr., for the respondent. LYON, J. No error is assigned upon the instructions of the county judge on questions of negligence, and the verdict of the jury disposes of those questions adversely to the defendant. A reversal of the judgment is claimed on two grounds: 1. Because (as it is alleged) the judge gave conflicting instructions as to the rule of damages; and 2. Because he directed the jury, if they found for the plaintiff, to allow interest on the damages from the time the cow was injured. These are the only errors assigned on this appeal. 1. There is an apparent conflict between the two instructions which the court gave the jury. That given at the request of counsel for defendant is, substantially, that the measure of damages is the difference between the value of the cow before she was injured, and the sum which the plaintiff might have realized for her had he disposed of her to the best advantage after she was injured; while the other instruction is, that the measure of damages is the difference between such value and the sum the plaintiff actually realized. Under the evidence we think the conflict is only apparent -not real. It is manifest that when the plaintiff testified |