instruct the jury that the words "held for trial" meant held for trial in the circuit court, and not held for examination. If the court was in error in this respect, the plaintiff is in no position to complain of the ruling. The gist of the charge, as we have already stated, was whether plaintiff was guilty of the offense set out in the article. Upon a fair charge upon the merits of that question, the jury have substantially found that the plaintiff was guilty. Under these circumstances, he could not have been prejudiced by the ruling. It could not matter whether he was held by the justice for examination, or bound over for trial. The gist of the action was the crime charged, and of this portion of the charge it was that he was in custody to answer to the charge. Bailey v. Kalamazoo Publishing Co., 40 Mich. 255.

3. One other question only need be noticed. The record returned into this court shows that the court charged the jury that

"It is the duty of a newspaper to gather up their news, and in so doing they are compelled to depend upon infor mation that comes to them. If they act honestly and fairly as to the sources of the reliability of their information, then they are excused, so far as malice and exemplary damages, or any damages, are concerned, if they publish a false thing, and they do it with a good intention."

It is contended that the court was in error in including in this statement the words "any damages." If the court used the words in the connection set forth, it was clearly error; but the plaintiff, in his assignment of error, quotes the whole of that part of the charge above given, except the very words of which he complains,—that is, he leaves out of his assignment of error the words "any damages." The charge, with these words eliminated, is not erroneous, and the question is not raised under the assignment of error. From the whole charge, and the assignment of error leaving out the words "any damages," we are inclined to think that by some oversight the words are put into the record, and were not in the charge as given to

the jury. Certainly, the error would have been too patent to escape notice, and assignment of error upon it.

The case seems to have been fairly tried, and the charge to the jury fully set out the claims of the respective parties with great clearness and fairness. While we have not discussed all the claims made, we have given them consideration, and find no errors which call for reversal.

The judgment must be affirmed.

The other Justices concurred.

SCOTT v. CRUMP.

OFFICERS RIGHT TO SALARY-CONFLICTING CLAIMS-PAYMENT. Payment of a fixed salary to a de facto officer while he is holding the office and discharging its duties constitutes a complete defense to an action brought by the officer de jure, after judgment of ouster, to recover the salary for the same period; and, in case of an elective city office, it makes no difference (1) that the members of the common council were ex officio members of the board of canvassers, and as such issued to the incumbent a certificate of election, no fraud or misconduct being imputed to them; (2) that the council assumed the defense of the quo warranto proceeding instituted by the claimant; or (3) that certain charter provisions were not observed in making the payments. But payments made after judgment of ouster has been rendered are unwarranted, and the municipality is liable to the officer de jure for the amount of the same.

Certiorari to Bay; Maxwell, J. Submitted June 4, 1895. Decided July 13, 1895.

Mandamus by James A. Scott to compel Rosseau O. Crump and others, constituting the mayor, common council, and recorder of West Bay City, to issue an order for

the payment of relator's salary as comptroller. From an order granting the writ, respondents bring certiorari. Judgment modified and affirmed.

Hatch & Cooley, T. A. E. & J. C. Weadock, and James E. Duffy, for relator.

G. H. Francis (T. F. Shepard, of counsel), for respondents.

MCGRATH, C. J. At the charter election in West Bay City held April 3, 1893, James A. Scott, relator, was a candidate for comptroller. The returns of the election inspectors gave him 14 votes over Charles Glaser, the opposing candidate. Mr. Glaser filed a petition for a recount, which was had, and Glaser was declared elected, and was inducted into the office in April, 1893, and performed the duties of that office until January 11, 1895. Quo warranto proceedings were instituted July 11, 1893, which ultimated in a judgment of ouster, in favor of Scott, January 8, 1895. The city paid the salary to Glaser while he occupied the office, and this is a proceeding to compel payment to relator of the salary for the period during which he was excluded from the office.

It was held in Board of Auditors v. Benoit, 20 Mich. 176, after very full consideration, that payment of a fixed salary to a de facto officer while he is holding the office and discharging its duties is a complete answer to an action brought after a judgment of ouster. Counsel for relator, however, insist that the city was notified of relator's claim of right to the office and of the proposed contest, and that any payments to the incumbent would be at the city's peril; that the council must be presumed to have known that the rejected ballots were legal ballots, and that Glaser was not in office under color of title; that in the present case the authority by virtue of which Glaser was inducted into office proceeded from the council; and that the council was a party to the usurpation.

106 MICH.-18

Counsel are in error in assuming that Glaser could not have compelled payment of the salary pending the quo warranto proceeding, and that the council was in a situa tion to withhold payment. The Benoit case was expressly put upon the ground that the title to the office could not be tried in a proceeding to compel the payment of the salary. That question could only be tried in the quo warranto proceeding, and until its determination there was no answer to Glaser's claim for the salary. Glaser was not an intruder or usurper, in the sense that the payment of his salary could have been refused. He held the certificate of election granted by the board of canvassers. It matters not that the members of the common council were ex officio members of the canvassing board. They did not act as a common council in the canvass, but as a board of election canvassers. The common council, acting as such, had no authority in the premises, and could not have afterwards determined the question involved. Glaser could not have settled the question by consenting to withdraw in favor of relator. That issue could be determined in but one forum, and in a proceeding to which the people of the State were made parties. Fraud is not charged, nor can an inference of fraud or improper conduct be predicated, upon the action of the board of canvassers. The determination which they made was reviewed by this court, and, after a hearing and a rehear ing, it was finally held that relator was elected by a majority of one. Attorney General v. Glaser, 102 Mich. 405. Conceding that the council, in undertaking the defense to the quo warranto proceeding, acted improperly, the municipality is not thereby estopped. Their action did not enter into that controversy, nor did they interpose any obstacle to the determination of the question at issue. In Stadler v. City of Detroit, 13 Mich. 346, Mahaney's appointment was without authority of law. It had been made by the coun cil. Stadler had not been removed or ousted. The council had the power of removal, and it had not exercised it

in either case. Mahaney's right to the salary depended upon the validity of that appointment.

It is insisted, however, that the salary was paid to Glaser without the proper action of the council thereupon, under the charter of the city; but it has nevertheless been paid, and Glaser was entitled to its payment at the time made. The salary paid to an officer, to which he was entitled when paid, could not be recovered back simply because certain provisions of the charter had not been observed in making the payment.

It appears, however, that the last payment to Glaser was made after the judgment of ouster had been rendered. Such payment was unwarranted. Comstock v. City of Grand Rapids, 40 Mich. 397; McVeany v. Mayor, etc., of New York, 80 N. Y. 185; Dolan v. Mayor, etc., of New York, 68 N. Y. 274.

The judgment will be affirmed with respect to the amount of the last payment so made, and a mandamus will issue directing the payment over to relator of such amount. In other respects the determination of the court below is reversed. No costs will be awarded. The other Justices concurred.

WIESINGER บ. FIRST NATIONAL BANK OF BENTON HARBOR.

1. PROMISSORY NOTE-MATURITY-DAYS OF GRACE.

An action commenced upon a promissory note on the last day of grace is premature.

2. MALICIOUS PROSECUTION OF ATTACHMENT-PROBABLE CauseADVICE OF COUNSEL-DEBT NOT DUE.

In an action for the malicious prosecution of an attachment, proof that defendant placed all of the facts before his counsel, and acted upon his opinion, will establish probable cause; but