sion from practice did not create a vacancy; that the only authority given the circuit judge under the facts of the case is that found in section 2412, 1 Comp. Laws 1915, providing for the appointment of a prosecuting attorney for the time being; and that upon the expiration of the period of his suspension he was entitled to be restored to the office with all its rights and perquisities. On the other hand it is insisted that by the suspension of Harrington's rights to practice law, he thereupon became disqualified to discharge the duties of the office; the same became vacant and that the respondent was required by section 11, article 7, of the Constitution, to fill such vacancy by appointment, and that the appointment of Barnhart was legal.

May this question be determined in this mandamus proceeding? We think not. There is no great public emergency, no greater than would ordinarily arise in a contest over any office; nor has this court by former adjudicated cases so settled the law as that we may say that Barnhart's claim is without foundation and but a pretext. While this court has, as matter of favor, permitted the filing of a brief in behalf of Mr. Barnhart, he is not a party to these proceedings, had nothing to do with making the issue and has no control over the case. A quo warranto proceeding is pending between the real parties to this controversy. The title to public office may be tried in quo warranto proceedings, but mandamus is not the proper remedy. People, ex rel. Cuthbert, v. Common Council of Detroit, 18 Mich. 338; Keeler v. Deo, 117 Mich. 1; Ashwell v. Bullock, 122 Mich. 620; Pipper v. Wayne Circuit Judges, 122 Mich. 688; Lachance v. Machinac County Canvassers, 157 Mich. 679; Dickinson v. Cheboygan County Canvassers, 148 Mich. 513; Frey v. Michie, 68 Mich. 323.

The petition for mandamus will be dismissed, but without costs.

BIRD, MOORE, and STEERE, JJ., concurred with FELLOWS, J.

OSTRANDER, C. J. I am impressed that the right of the relator to the office ought to be determined in this proceeding and for the reason that no real question of title to office is involved.

1. The prosecuting attorney, Harrington, the relator, was an attorney and counselor at law. It was a necessary qualification for holding the office, which he held by election. His punishment, inflicted by Judge Wiest, did not take away this qualification. He was not disbarred. He remained an attorney, but, for a time, one not permitted to practice his profession. He did not have to be again admitted to the bar when the period of suspension expired.

2. The statute, which demands that the prosecuting attorney shall be an attorney, given the greatest possible effect, in view of the circumstances, operated only to create a disability, for the time being.

3. The disability was removed when the period fixed in the order of Judge Wiest expired.

4. There was no vacancy in the office the relator was under no disability to perform the duties of the office-when the last order of the court was made. Title to the office came to relator by election. No one in any proceeding instituted for the purpose has questioned his title.

5. The last order made by the court cannot be allowed to so operate as to raise the question of title. It is based upon the assumption that relator had lost title, that there was no one in office. With that order out of the way, and this is a direct proceeding which questions its validity, the whole matter is settled. The writ should issue.

BROOKE, STONE, and KUHN, JJ., concurred with OSTRANDER, C. J.

PEOPLE v. MEYER.

1. INDICTMENT AND INFORMATION-AMENDMENT-VARIANCE STAT

UTES.

In a prosecution for larceny, where the information alleged that the stolen goods were the property of a corporation, but upon the trial the proof showed that the ownership was in a copartnership, it was proper for the court to allow an amendment of the information, under 3 Comp. Laws 1915, § 15749, defendant being in no way prejudiced, claimed no surprise or unpreparedness, and asked no continuance.

2. SAME

AMENDMENT-CONSTITUTIONAL LAW.

Said section is not in violation of section 19, Art. 2, of the Constitution, guaranteeing to the accused the right to be informed of the nature of the accusation against him.

Error to superior court of Grand Rapids; Dunham, J. Submitted October 17, 1918. (Docket No. 111.) Decided December 27, 1918.

John Meyer was convicted of larceny and sentenced to imprisonment for not less than 21/2 years nor more than 5 years in the State prison at Jackson. Affirmed.

Ward & Moore, for appellant.

Cornelius Hoffius, Prosecuting Attorney, and Bartel J. Jonkman, Assistant Prosecuting Attorney (Fred P. Geib, of counsel), for the people.

FELLOWS, J. Defendant was charged in the information with the larceny in the daytime in the store of the Herpolsheimer Company of enumerated personal property of the Herpolsheimer Company of the value of $267.50. It was alleged in the information that the Herpolsheimer Company was a corporation. Upon the trial it developed that the Herpolsheimer

Company was a copartnership, composed of William G. Herpolsheimer and Henry B. Herpolsheimer, as trustee. The trial court, over defendant's objection, permitted the prosecuting attorney to amend the information by alleging the ownership of the property to be in William G. and Henry B. Herpolsheimer as copartners. By seasonable objection, motion for directed verdict and motion in arrest of judgment, defendant questions the validity of this action. It is the only question raised.

The information on its face was in no way defective. The property stolen was the property of the Herpolsheimer Company and was so alleged. The variance between the allegation of the information and the proof consisted in the fact that the Herpolsheimer Company was a copartnership, not a corporation. The variance therefore consisted in the description of the person or body stated to be the owner of the property stolen. Section 15749, 3 Comp. Laws 1915, provides:

"Any court of record in which the trial of an indictment is had, may forthwith allow amendment in case of variance between the statement in the indictment on which the trial is had, and the proof in the following cases: In the names of any county or place stated in the indictment, in the name or description of any person or body stated to be the owner of any property which is the subject of the offense charged, or alleged to have been injured by the commission of the offense, or the Christian or surname of any person, the name or description of any thing, the name or description of any writing, as well records as others, or the ownership of any property described in the indictment, and in all cases whenever the variance between the facts alleged in the indictment, and those proved by the evidence, are not material to the merits of the case."

The language of the statute is unambiguous and under it the amendment was properly allowed. People v. Courtney, 178 Mich. 137; People v. Brown, 110

Mich. 168; People v. Price, 74 Mich. 37. We can conceive of no case more appropriate for the application of this statute than the instant one. Defendant was in no way prejudiced by the amendment; he claimed no surprise or unpreparedness to meet the case made by the amendment; asked no continuance, and relies solely upon this objection to escape a merited conviction.

Nor are we able to perceive in what manner section 19, article 2, of the Constitution, guaranteeing to the accused the right to be informed of the nature of the accusation against him, has been offended by this statute of amendments-a procedural statute, a statute enacted in the furtherance of the due administration of the criminal law.

The conviction is affirmed.

OSTRANDER, C. J., and BIRD, MOORE, STEERE, BROOKE, STONE, and KUHN, JJ., concurred.*

SCHWEITZER v. BIRD.

1. EJECTMENT-VERDICT-SPECIFYING ESTATE OF PLAINTIFF. The provision of section 13190, 3 Comp. Laws 1915, requir ing the verdict in ejectment to specify the estate or right of the plaintiff in whose favor it shall be rendered, whether such estate be in fee, for life, for a term of years, or otherwise, is mandatory.

2. SAME-RECORD-NEW TRIAL-SUBSEQUENT SUIT.

Where a case in ejectment had terminated in a verdict and judgment for plaintiff without specifying her interest in the land, when defendants filed their motion for a new