The judgment of the circuit court is affirmed. Judgment affirmed. they consented to the probate of the former, their consent to that judgment was procurwe are of opinion they are now estopped to ed through fraud or mistake, and it does not ask to be relieved from the consequence of seem logical or necessary to require a septheir own acts. If their consent to the pro-arate proceeding for that purpose. If we are bate of the former will was procured by correct in these conclusions it necessarily fraud or through mistake this should have follows that the probate and circuit courts been shown by proof, and upon that subject did not err in refusing to admit the later will there is no proof whatever. There is some to probate. proof tending to show that the widow of the testator knew he had executed another will, but there is no proof that appellants and the heirs of testator had no knowledge of it. It was not shown that the widow knew the later will was in existence when the former . was probated, nor is it shown where the later will was from the time of the death of the testator until offered for probate nor when knowledge of its existence first came to the parties interested in seeking its probate. [5] The making of such proof would not be in violation of the rule governing the proof competent to be heard upon the application of the admission of a will to probate, either in the probate court or in the circuit court on appeal. Such proof would only go to the purpose of showing the admission of the first will was procured by fraud or mistake, and not to the establishment of the due execution of the later will. Conceding that the later will is, so far as shown by the proof, the valid last will and testament of Charles Conzet, deceased, if his heirs, with knowledge of its existence, aided in procuring the probate of the former will they ought not to be heard now to ask that its probate be set aside. (273 Ill. 124) LAKE COUNTY v. WESTERFIELD. (No. 10611.) (Supreme Court of Illinois. April 20, 1916.) 1. COUNTIES 94(3)-COMPENSATION OF OF. FICERS CONSTITUTIONAL AND STATUTORY PROVISIONS-INTEREST. the county board shall fix the compensation Under Const. art. 10, § 10, providing that of all county officers with the amount of necessary expenses, and all fees or allowances received in excess of this compensation shall be paid into the county treasury, and Fees and Salaries Act (Hurd's Rev. St. 1913, c. 53) § 52, containing similar provisions, and Rev. St. 1874, c. 36, § 4, providing that the county treasurer shall have custody of funds authorized by law to be paid to him, and various sections of the Revenue Act (Hurd's Rev. St. 1913, c. 120), prescribing the duties of the county treasurer as ex officio collector, and creating an absolute hands so as to make them insurers of the safety liability of county treasurers for money in their of such money, a county treasurer is not a bailee in the sense of having possession of money for temporary purposes with a qualified property in it, nor a debtor beyond the sense that he owes an obligation to pay over the money, but is a mere custodian of public funds, for the safety of which he gives his official bond, and although he is not required to make the money in his hands earn interest, if the funds do earn interest, he is not entitled to retain it, but must ac count for it as a prerequisite or emolument acquired by his official position. [Ed. Note.-For other cases, see Counties, Cent. Dig. § 126; Dec. Dig. 91(3).] 2. COUNTIES 94(3)-COMPENSATION OF OFFICERS CONSTITUTIONAL AND STATUTORY PROVISIONS. the meaning of a statute, a long-continued pracAlthough where there is a doubt concerning tical construction will be considered in determining the construction to be given it by the courts, where the constitutional and statutory provisions plainly provided that all fees and allowances received by county officers in excess of their lawful compensation should be paid into the county treasury, the fact that it is customary for public officers to appropriate interest on pub lic funds will have no weight, and cannot be permitted to defeat the purpose of the people in adopting the Constitution or the Legislature in enacting the law. [6] The grounds upon which the probate court may exercise its jurisdiction to revoke a former judgment of probate are fraud and mistake, and it seems to us the burden is upon those asking to have the former judgment of probate set aside to show that it was procured through fraud or mistake. That a party may by his conduct estop himself from procuring the probate of a subsequent will is supported by In re Lyman, 14 Misc. Rep. 352, 36 N. Y. Supp. 117, and Foote v. Foote, 61 Mich. 181, 28 N. W. 90. We think, also, the general rules governing the doctrine of estoppel are applicable under the circumstances of this case. The only purpose to be served by the admission of the later will to probate would be the disposition of the testator's estate according to its provisions. To effect this purpose it will be necessary to revoke the former probate, and we can see no good reason for instituting two separate proceedings to accomplish that purpose. The same proof would be required in a separate pro-Cent. Dig. § 126; Dec. Dig. 94(3).] [Ed. Note.-For other cases, see Counties, ceeding to set aside the probate of a former will as in the proceeding with reference to 3. APPEAL AND ERROR the application to admit the later will to probate. If the probate court had admitted Where by a stipulation of facts it is agreed the later will it would be incumbent upon that the amount claimed was received by the those interested in its provisions, if they in- defendant as interest on public funds in his hands as county treasurer, there being no statestituted a separate proceeding to revoke the ment of fact or proposition of law that the mouformer judgment of probate, to show thatey did not belong to the plaintiff county but to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes QUESTIONS PRESENTED 547(1) REVIEW STIPULATIONS OF the owners of the several funds, there is no 4. APPEAL AND ERROR 1094(1)-REVIEW- The pellant made no claim to the money on account of salary, clerk hire, or other necessary expenses, and the county had demanded that he turn the money into the treasury. stipulation stated the defense to be that neither the county board nor the county had any interest in or right to any of the money received as interest; that such money was not an earning of the office, but the private money of the defendant, which he was not required to account for or pay into the coun In an action by a county against its treasurer for interest on money in his hands as ex officio collector, the judgment of the Appellate Court is conclusive of the amount of damages. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4348; Dec. Dig. ty treasury. The court held as the law 24 1094(1).] 5. COUNTIES 94(1)-COMPENSATION OF OFFICERS INTEREST ON PUBLIC FUNDS-RIGHT OF ACTION BY A COUNTY. Where the county board fixes the salaries of county officers and the statute requires such officers to pay the county treasurer all fees received by them above the amounts so fixed, the officers are to account with the county board, and legal title is in the county which may maintain suit, the distribution of separate funds being a matter of accounting. [Ed. Note. For other cases, see Counties, Cent. Dig. §§ 122, 123; Dec. Dig. 94(1).] propositions submitted by the appellee, which stated with unnecessary repetition and mere verbal variations that the county treasurer and ex officio county collector was not entitled to the interest on moneys in his hands as such officer above the amount of his com pensation fixed by the county board and the amount allowed for clerk hire and other necessary expenses. The appellant submitted four propositions of law, to the effect that county treasurers are not liable for, and need not account for, interest which they may re Appeal from Appellate Court, Second Dis-ceive upon funds in their hands by virtue of trict, on Appeal from Circuit Court, Lake County; Claire C. Edwards, Judge. their office, and need not pay the same into the county treasury. All of these propositions were refused. The court found the is Action by the County of Lake against Carl P. Westerfield. From a judgment of the Ap-sues for the appellee, and rendered judgment pellate Court for the Second District, affirming a judgment for the plaintiff, the defendant appeals. Affirmed. See, also, 268 Ill. 537, 109 N. E. 309; 268 Ill. 501, 109 N. E. 310. A. F. Beaubien, of Waukegan, and Church, Shepard & Day, of Chicago (Frank L. Shepard, of Chicago, of counsel), for appellant. Ralph J. Dady, State's Atty., of Waukegan (E. M. Runyard, of Waukegan, of counsel), for appellee. for the amount of the interest and costs of suit. The appellant removed the record to the Appellate Court for the Second District by appeal, where the judgment was affirmed and a certificate of importance was granted and an appeal to this court. [1] Section 10, art. 10, of the Constitution provides that the county board shall fix the compensation of all county officers, with the amount of their necessary clerk hire, stationery, fuel, or other expenses, which compensation shall not be increased nor diminished during the term of office, and that all fees or allowances received by such officers in excess of their compensation shall be paid into the county treasury. Section 52 of the Fees and Salaries Act provides that all fees, perquisites, and emoluments received by county officers in counties of the class to which Lake belongs, above the amount of their compensation fixed by the county board and for clerk hire and other necessary expenses, shall be paid into the county treasury. These provisions of the Constitution and statute have established the law concerning the compensation to be received by county treasurers for the performance of their official duties, and the question of law which may be reviewed in this court, arising upon the propositions of law held and refused, is whether interest on public funds comes within the constitutional and statutory provisions. CARTWRIGHT, J. The county of Lake, appellee, brought this suit in the circuit court of that county in assumpsit against Carl P. Westerfield, appellant, and on September 10, 1914, filed a declaration containing six counts. In each of the first five counts it was alleged that the appellant had been county treasurer and ex officio county collector of said county since December 5, 1910; that his salary was fixed by the county board at $2,500 per annum, which he had received; that on June 1, 1913, there was in his hands the sum of $7,343.90, which he had received during his term of office from banks as interest on moneys in his hands by virtue of his office; that he never kept any account of said money received as interest, and never reported the same to the county board, and never paid the said sum, or any part thereof, into the county treasury. The sixth was the consolidated money count. The plea was the general issue, and, a jury having been waived, the issues The argument against the ruling of the were submitted to the court upon a stipula- | trial court on the propositions of law is based tion of facts which corresponded with the on various provisions of the statutes. Secaverments of the special counts. The ap- tion 4, c. 36, of the Revised Statutes of 1874, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes fund by the officer. We are also unable to discover any reason for the decisions in the cases cited that the absolute liability of the county treasurer entitles him to interest. A trustee or bailee may ordinarily be relieved from liability by showing that the funds in his hands were lost without any fault on his relating to county treasurers, provides that the county treasurer shall receive and safely keep the revenues and other public moneys of the county and all money and funds authorized by law to be paid to him and disburse the same pursuant to law. In various sections of the Revenue Act, prescribing the duties of a county treasurer as ex officio col-part, but how the nature or extent of the lialector, the particular kind of coin, notes, certificates, and warrants which he shall receive in payment of taxes is specified, and he is required to collect special assessments made by any city, town, or village. The money collected for state taxes he is to pay over to the state treasurer and money collected for other taxing bodies is to be paid to the proper authorities. Upon failing to make the reports and payments required, suit may be brought on his bond, and his office may be declared vacant by the county board or by the court in which such suit is brought. These provisions of the statute create an absolute liability of county treasurers to safely keep and pay over the moneys in their hands, so that they become insurers of the safety of such moneys. Thompson V. Board of Trustees, 30 Ill. 99; Town of Cicero v. Hall, 240 III. 160, SS N. E. 476; Town of Cicero v. Grisko, 240 Ill. 220, 88 N. E. 478. The liability for the principal sum of money coming into the hands of the treasurer being absolute, it is contended that he is entitled to and becomes the owner of any interest upon the principal sum which he may obtain. To sustain that position counsel for appellant rely upon a number of decisions in which the fact of absolute liability was regarded as sufficient to invest the treasurer with the ownership of the principal fund or to entitle him to retain the interest earned by it. Shelton v. State, 53 Ind. 331, 21 Am. Rep. 197; State v. Walsen, 17 Colo. 170, 28 Pac. 1119, 15 L. R. A. 456; Renfroe v. Colquitt, 74 Ga. 618; Commonwealth v. Godshaw, 92 Ky. 435, 17 S. W. 737; Maloy v. County Com'rs, 10 N. M. 638, 62 Pac. 1106, 52 L. R. A. 126. In Shelton v. State and Commonwealth v. Godshaw, supra, the courts of Indiana and Kentucky decided that on account of the absolute liability the money received by the official becomes his own money. That conclusion seems to us, not only to be without foundation in reason, but it is expressly repudiated by counsel for appellant, who say that no such claim is made on his behalf. The officer is not a bailee in the sense of having possession of the money for a temporary purpose with a qualified property in it, and surely he does not acquire title to the property, because he is absolutely bound to preserve and disburse it to those entitled to it. He is a debtor in the sense that he owes an obligation to pay over the money received by him, but not in any other sense. He is a mere custodian of public funds, for the safety of which he gives his official bond, and the contract liability thereby created is inconsistent with any idea of ownership of the bility affects the ownership of an accretion to money or property in the hands of a cus todian we are unable to discover. There are varying degrees of liability in cases where property of one is intrusted to another and in some cases the liability is absolute, but. in any case, the one to whom the property is delivered must be satisfied with the compensation, provided by the law or agreed upon. There is no law requiring a county treasurer to make the moneys in his hands earn interest, and if they do not earn interest the treasurer satisfies his obligation by paying over the principal, but that does not affect the question as to who is entitled to the interest if the fund earns interest. The question of the ownership of interest on public funds came before this court in Hughes v. People, 82 Ill. 78. That was a suit on the bond of a sheriff who was ex officio received from a bank $2,500 as compensation county collector, and it appeared that he had for deposits of money which came to his hands as an officer. The court held that the interest was a perquisite or emolument acquired by official position, which should be accounted for to the county. The principle involved in that case has been applied in oth er cases. People v. Foster, 133 Ill. 496, 23 In the N. E. 615; County of La Salle v. Milligan, [2] An argument against the rulings of the trial court on the propositions of law is based on the long-continued practical construction given to the provisions of the Constitution and statutes, by which public officers had been permitted to receive for themselves interest upon public funds, for which they rendered no account. The court recognized such a custom in Dreyer v. People, 176 Ill. 590, 52 N. E. 372, as a matter of common knowledge; and where there is doubt concerning the meaning of the statute, a long-continued practical construction will have much requiring him to pay the money into the city treasury, but he was required by the Municipal Court Act to account to the different au force in determining the proper construction pay, and there was no provision of the law to be given it by the courts. Nye v. Foreman, 215 Ill. 285, 74 N. E 140; Cook County v. Healy, 222 Ill. 310, 78 N. E. 623. If, however, the language of the statute is plain, a con-thorities. The law under consideration in trary construction given to it by officials Jones v. O'Connell, 266 Ill. 443, 107 N. E. 731, will have no weight. As to the question in and County of Lake v. Westerfield, 268 Ill. this case, there is no ambiguity in the Consti- 537, 109 N. E. 309, created a duty to the state tution or statute, and the fact that public of- in which the county had no interest, and the ficials have appropriated to their own use in-law did not contemplate payment to the terest money to which they were not entitled cannot be permitted to defeat the purpose of the people in adopting the Constitution or of the Legislature in enacting the law. The court did not err in ruling on the propositions of law. county. The judgment of the Appellate Court is affirmed. Judgment affirmed. (272 I11. 576) BELL v. TOLUCA COAL CO. (No. 10612.) [Ed. Note.-For other cases, see Continuance, Cent. Dig. § 132; Dec. Dig. 46(2).] The allowance of an amendment to the pleadings during the trial as well as the granting or refusing of time to prepare an affidavit for continuance on account of such amendment is a matter of discretion with the court, and a ruling of the court cannot be assigned for error unless the discretion has been abused. [3-5] It is contended that, even if the money collected as interest is not the property of the appellant, it followed the several funds on which it was earned, and belonged Under Hurd's Rev. St. 1913, c. 110, § 42, not to the county but to the owners of the providing that no amendment shall be cause for several funds. That question is not present- continuance unless the party affected files an ed by the record. By the stipulation of facts affidavit that he is unprepared, the defendant's affidavit on information and belief that he was it was agreed that the amount claimed was unprepared on account of lack of evidence to received by the appellant as interest on pub- meet the cause of action set out in plaintiff's lic funds in his hands as county treasurer, amended count, without stating what evidence and the defense was that the interest be-fidavit should state facts from which the court it could produce, was insufficient, since the aflonged to him. If the interest was earned can see that by reason of the amendment the upon funds of different taxing bodies in defendant is unprepared for trial. which the county had no interest it was not stated, and no proposition of law was submitted to the court on the question of the right 2. of the appellee to recover the whole sum admitted to be in the hands of the appellant. There being no statement of fact and no proposition of law based upon such fact, there is no question subject to review in this court. The judgment of the Appellate Court is conclusive of the amount of damages. The question, however, has been argued by counsel on both sides, and if we treated it as involved in the appeal, we could not agree with appellant. The county board fixes the salaries of county officers, together with the amount of their necessary clerk hire and other expenses, and the statute requires such officers to pay into the county treasury all fees, perquisites, and emolument received by them above the amounts fixed by the county board. The officers are to account to and settle with the county board, and the legal title is in the county, which may maintain a suit. If the interest is an accretion to the fund which bears interest, becoming a part of it and corporate with it, and there were in this case any several or separate funds, the distribution would be a matter of accounting, in which the different shares of the aggregate belonging to the several beneficiaries would be ascertained. In the cases of Gal pin v. City of Chicago, 249 Ill. 554, 94 N. E. 961, and 269 Ill. 27, 109 N. E. 713, bills of interpleader were filed by Galpin, who was the clerk of a city court, to determine what different taxing bodies were entitled to money in his hands. He admitted his liability to [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1830, 3837; Dec. Dig. 959(3), 966(1); Continuance, Cent. Dig. §§ 99112; Dec. Dig. 30; Pleading, Cent. Dig. § 601; Dec. Dig. 236(3).] 3. TRIAL 89-MOTION TO STRIKE - EVI DENCE. Evidence relevant when received, and which afterwards becomes irrelevant, may be stricken out on motion of the party it may affect. [Ed. Note. For other cases, see Trial, Cent. afterwards became irrelevant, the defendant, Where evidence relevant when received 5. MASTER AND SERVANT 286(19)—INJURY TO SERVANT-QUESTION FOR JURY-DEFECTIVE APPLIANCES. In a servant's action for injuries caused by projection in the entry of a coal mine, it was for the jury to say from the facts testified to whether places and conditions were safe or dangerous. Servant, Cent. Dig. § 1026; Dec. Dig. 286 [Ed. Note.-For other cases, see Master and (19).] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes In a servant's action for injuries caused by a projection in the entry of a coal mine where all the facts could be ascertained and made intelligible to the jury, expert opinion as to whether the place and conditions were safe or dangerous is inadmissible. 6. EVIDENCE 513(11)-EXPERTS-OPINIONS to whether the ruling of the trial court was -SUBJECT-MATTER. correct in holding the said act unconstitutional. Thereupon the cause was transferred to this court before any decisions of this court holding this act constitutional were published. Since then, however, this court has decided the act constitutional as to the 513(11).] method of its passage by the Legislature. APPLICA- Frey v. Kerens-Donnewald Coal Co., 271 Ill. 121, 110 N. E. 824; Dragovich v. Iroquois Iron Co., 269 111. 478, 109 N. E. 999; Devine v. Delano, 272 Ill. 166, 111 N. E. 742. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2317, 2318; Dec. Dig. 7. TRIAL 250 — INSTRUCTIONS TION TO PLEADINGS AND ISSUES. Where there was no allegation in the pleadings or evidence relied on for a recovery upon which to base an instruction, it was properly refused. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 584-586; Dec. Dig. 250.] 8. MASTER AND SERVANT 350-WORKMEN'S In a servant's action for injuries where the defendant elected not to come under the Workmen's Compensation Act of 1911 (Laws 1911, p. 315) he cannot escape liability for injuries sustained by an employé because of the employe's assuming the risk or because the injury or death was proximately caused by contributory negligence of the employé. [Ed. Note. For other cases, see Master and Servant, Dec. Dig. 356.] 9. TRIAL ~260(1)—INSTRUCTIONS-INSTRUCTIONS ALREADY GIVEN. It was not error to refuse an instruction where other instructions given practically cover the subject-matter of the instruction requested. [Ed. Note. For other cases, see Trial, Cent. Dig. § 651; Dec. Dig. ~260(1).] 10. MASTER AND SERVANT 278(10)—INJURIES TO SERVANT-ACTIONS-ASSUMPTION OF RISK AND CONTRIBUTORY NEGLIGENCE. In a servant's action for injuries caused by a projection in the entry of a coal mine while he was acting as mule driver, evidence held sufficient to sustain a verdict for the plaintiff. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 964; Dec. Dig. 278(10).] Appeal from Circuit Court, Marshall County; John M. Niehaus, Judge. Action by Edward Bell against the Toluca Coal Company. Judgment for the plaintiff, and defendant appeals. Affirmed. Boys, Osborn & Griggs, of Streator, for appellant. Frank J. Quinn and Shelton F. McGrath, both of Peoria, for appellee. The appellant's mine is located at Toluca, in Marshall county. The entries of the mine radiate from the shaft over a mile in all directions. The coal is hauled by mules from where it is being mined for a quarter to a half mile, and then conveyed to the foot of the shaft by electric motors and lifted by steam power to the surface. The entries are named by the direction they take. Appellee's work was in the fourth right entry off of the second southeast entry; this latter leading to the shaft. The vein of coal is about 3 feet thick. The overlying rock is taken out for a sufficient height to make a passage for the mules. As the coal is mined the spaces left are filled in with rock or stone taken from the roof and elsewhere, which is piled in such a way as to make solid sides for the entry. The contour of the floor of the passageways or entries is not uniform, some parts being rather steep, and other parts practically level. fourth right entry is for the most part level; the steepest grade not being over 3 feet in 100. This grade, however, was sufficient to require the spragging of cars at certain points as the loaded cars were taken out. The distance between the rails and the roof varies, but is usually from 5 to 6 feet. The distance between the side walls averages about 8 feet. The rails of the track are 3 feet apart, leaving about 2% feet between each rail and its nearest wall. The rocks The used in walling up the sides of the entries are not uniform in size; the largest being 12 feet long and from 8 to 10 inches wide. The cars were 7 feet long, 21⁄2 feet high from CARTER, J. June 23, 1913, appellee was the rails to the top of the box, and overhung injured while in the employ of the appellant the rails about 6 inches on each side. Opencorporation as a mule driver, engaged in ing into this fourth right entry were several hauling coal cars in and about its mine. rooms. Room 4 on the left-hand side was Some of the counts in the declaration were about 450 feet from the junction of this based upon the Workmen's Compensation entry with the second southeast entry. Act of 1911 (Laws 1911, p. 315). The trial Room 5 was on the same side and about 60 court held this act unconstitutional on the feet away. In this entry were several slight ground that it had not been legally passed curves, none of which were over 10 degrees by the Legislature, and the trial then pro-in a distance of 25 feet, and there was a ceeded without reference to said act. The curve near these two rooms which turned jury found for appellee, and assessed his damages at $3,951, and judgment was entered on the verdict. The case having been appealed to the Appellate Court, the appellee assigned cross-errors raising the question as to the right at room 4. From where the coal was mined to these rooms there was a grade, which ended at room 4. From that point on to the southeast entry the grade was up. The testimony on the part of ap For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |