tended as soon as convenient for herself, and as soon as she could determine that she had the right so to do, to fill the ditch, and place the land in the same condition as before, then I charge you, gentlemen, that her damage ought to consist of the amount that it was actually necessary for her to expend to restore the ground to the condition it was in preceding the trespass, and also whatever damage you find was done to the crops, or damage that may be done if you find that there was no such damage by reason of the trespass itself, in damaging the land itself in the raising of crops in the future. But, gentlemen, on the other hand, if you find she had no intention at the time she commenced the suit, and it was not her desire, to restore the land to its original condition, the condition it was in previous to the trespass, then I charge you that the measure of damages in this case is the difference between the value of the land before the trespass was committed and the value of the land after the trespass was committed.

"I am asked to charge you by the defendants that, as a matter of law, if the land was damaged at all, then the true measure of damages will be the difference between the value of the land before and after the ditch was dug, or the diminution of the value of the land because of said drain. I charge you, gentlemen, this measure of damages, provided you find that the plaintiff's bona fide intention was not to fill the ditch and restore the land to its former condition; but, in case you do find that she had that intention, the rule I have heretofore given you must govern upon that point. So you may not misunderstand: The request just read to you is a proper measure of damages in case you find that she did not intend to restore the land to its former condition at the time of the commencement of the suit."

Judgment was again rendered for plaintiff, and defendants bring error. Affirmed.

Chaddock & Scully, for appellants.

John Nichol and F. H. Stowe, for appellee.

LONG, J. This case was in this court at the October, 1894, term, and is reported in 103 Mich. 383. It was then

reversed, and a new trial ordered. The case has been retried, and verdict found in favor of the plaintiff. Defendants appeal.

In the former opinion, the rule to be followed upon a new trial was carefully laid down, and the case was retried according to the directions there given. We think the case needs no further discussion.

The judgment must be affirmed.

The other Justices concurred.

GRANT v. CITY OF ALPENA.1

1. STATUTES-WHEN OPERATIVE.

No law, nor any single provision thereof, can begin to speak until it takes effect.

2. MUNICIPAL CORPORATIONS-AMENDMENT OF CHARTER-POWER TO REMOVE OFFICERS.

A charter provision authorizing the common council to appoint a certain officer, and to remove him at pleasure, remains in force after the taking effect of an amendment providing for the creation of a municipal board at a specified time in the future, which should have the appointment of such officer, until the provision last mentioned becomes operative.

Error to Alpena; Kelley, J. Submitted November 20, 1895. Decided December 10, 1895.

Case by James F. Grant against the city of Alpena for maliciously preventing plaintiff from performing the duties of city marshal. From a judgment for plaintiff, defendant brings error. Reversed.

I. S. Canfield, for appellant.
J. D. Turnbull, for appellee.

1 Rehearing denied January 30, 1896.

GRANT, J. By the defendant's charter, as it was prior to the amendment of 1891,1 the common council was authorized to appoint a marshal, and to remove him at pleasure. May 20, 1891, plaintiff was appointed marshal for the ensuing year, at a salary of $1,000. A new common council went into office early in August, under the amended charter of 1891, approved July 2, 1891, and ordered to take immediate effect, and August 17th declared the office of marshal vacant, and appointed a new man to fill the place.

The amended charter provided for a board of police commissioners, to be appointed on the nomination of the mayor after the annual election in 1892, the first Monday in April, and before May 1st. To this board, when so appointed, were committed the appointment of a marshal and the control and management of the police department of the city. By this amendment, the power to appoint a marshal was taken away from the common council, and lodged in this board. The effect was either to abolish the office of marshal during the interim from July 2d to some time after April 1st, when the board should be appointed, or to leave the office in the control of the council until that time. The result of either holding would be to defeat the plaintiff's claim.

A law or any single provision thereof cannot begin to speak until it takes effect. Rice v. Ruddiman, 10 Mich. 125; Price v. Hopkin, 13 Mich. 318. Had the act provided that it should go into effect at the election in April, 1892, clearly the old charter would have remained in force until then. The same rule applies to any provision of the act. The police department was left in the control of the council until transferred to the board of commissioners, which could not be done until April, 1892.

The object of this suit is to recover the salary for the remainder of the term for which plaintiff was appointed. 'Act No. 393, Local Acts 1891.

The court should have directed a verdict for the de

fendant.

Judgment reversed, and no new trial ordered.

MCGRATH, C. J., LONG and MONTGOMERY, JJ., concurred. HOOKER, J., did not sit.

107 337

PEOPLE v. HANAW.

1. CONSTITUTIONAL LAW-EMBEZZLEMENT-SUFFICIENCY OF INFOR

MATION.

2 How. Stat. § 9421, providing that, under an information charging the embezzlement of money only, a conviction may be had for the embezzlement of any check, draft, bill of exchange, etc., does not violate the constitutional right of the respondent to be informed of the nature of the accusation against him, since he may in such case have the charge made certain by examination or by bill of particulars.

2. EMBEZZLEMENT-AMENDMENT OF INFORMATION.

An information for embezzlement under 3 How. Stat. § 9176a, alleging that the money embezzled belonged to the complainant, and that it came to the possession of the respondent by virtue of his employment as agent or collector, may be amended by inserting an averment that the money was so received "for the use of " the complainant.

3. SAME-AGENT FOR COLLECTION-RECEIPT OF DRAFT.

An agent for the collection of a claim may be convicted under 3 How. Stat. § 9176a, of embezzling a draft received by him thereon, where he deposits the same on his own account with intent to appropriate the entire proceeds, even though the draft was payable to his order, and he had the right to convert it into cash and take out his commission.

4. SAME.

One who intrusts paper to another for collection on commission has such an interest in a draft received by the latter in payment of the debt as to support a prosecution for its embezzlement, 107 MICH.-22

although, at the time of leaving the paper, he took the agent's receipt to "account for the proceeds when paid."

5. TRIAL REQUESTS TO CHARGE.

While, within bounds, requests to charge may properly allude to the effect of certain testimony, they should not be argumentative.

Exceptions before judgment from Jackson; Peck, J. Submitted November 22, 1895. Decided December 10, 1895.

Joseph Hanaw was convicted of embezzlement. Conviction affirmed.

Parkinson & Campbell and Smith & Ware, for appellant. Charles A. Blair, Prosecuting Attorney, for the people.

HOOKER, J. The defendant is charged with embezzlement, and the evidence indicates that complainant indorsed and gave to him for collection, for his use and benefit, a check held by complainant upon a firm in New York. The defendant sent the check to New York, and received a draft payable to his order for a part of the sum, and deposited this draft with his banker, at Jackson, receiving credit for the amount. The complaint and warrant charged the embezzlement against him as "agent, clerk, servant, and collector," and as an embezzlement of a large amount of money, to wit, $398.50, of the value of $398.50, of the goods and chattels then and there belonging to the complainant, and that said goods and chattels then and there came to the possession of the defendant by virtue of his employment, etc. A bill of particulars was filed, stating the facts hereinbefore set forth with regard to the draft. A motion to quash being made, the court permitted an amendment to be made to the information by inserting the words, "For the use of and belonging to the said James A. Follett [the complainant]." A conviction followed, and the defendant has appealed.