practice in the court of the King's bench and common pleas. Of the then practice in such proceeding it is said in part:

* *

"The motion for leave to bring the money into court is a motion of course and should regularly be made before plea pleaded * the money should be paid to the signer of the writs who acts in this instance as deputy to the master and will give a receipt for the money. * * * The rule for bringing in the money is drawn up, in this court, by the clerk of the rules in term time, or within a week after, on the motion paper and receipt being left with him as instructions."

Accepting Abbott's Practice as authority, no rule or order was necessary, as the deposit was made with the clerk prior to the plea, but conceding that it is yet in accordance with good practice, a relaxation of former more strict requirements is indicated in Rule No. 11 of Circuit Court Rules of 1897 (in force when this deposit was made) which provides:

* * *

"(a) Every rule to which a party would, according to the practice of the court, be entitled of course, without showing special cause, shall be denominated a common rule; All common rules and all rules by consent of parties shall be entered with the Iclerk at his office, in a book to be provided by him for that purpose to be called 'common-rule book.'

"(b) Except as required by statute, such rules may be filed with the clerk with the like effect as if entered as above provided."

In so far as the filing or entry of a common rule would furnish any useful information to the clerk or his office, that purpose was served by the statement, or voucher, accompanying the so-called "voucher check," which he accepted and cashed, stating the title and nature of the suit to which the payment applied, the amount and purpose of the payment, with the amounts intended to be applied on each assessment to recover which the action was brought. Under such

circumstances failure to file a formal common rule, which would ordinarily furnish less information, was but a technical irregularity in practice, affording no adequate ground for evading liability under the plain conditions of defendant's contract of surety that Krakowski should "faithfully perform the duties of his said office," and on demand account for not only money and other property coming into his custody as such officer, but all moneys "paid into said office," to him, acting as such officer and fully advised of its purpose, and was received by him ostensibly in his official capacity by virtue of his office.

The judgment is affirmed.

BIRD, C. J., and MOORE, BROOKE, FELLOWS, STONE, and KUHN, JJ., concurred.

The late Justice OSTRANDER took no part in this decision.

SWACZYK v. DETROIT EDISON CO.

1. DEATH-ACTION-DEATH ACT-SURVIVAL ACT-TEST. The recognized test in this State distinguishing between the two causes of action, survival and instantaneous death, is whether the active cause of death continued to operate directly upon the injured person until life was extinct; that he did not regain consciousness is not a test of instantaneous death.

2. SAME ELECTRICITY-INSTANTANEOUS DEATH-EVIDENCE- QUESTION FOR JURY.

Testimony by a disinterested witness that deceased lived about an hour after he found him lying on the ground in contact with a "live wire," which was supplemented by the testimony of two boys, companions of deceased, to the same effect, held, to present a question of fact for the jury as to whether death was instantaneous.

3. SAME-ELECTRICITY-INSPECTION-NEGLIGENCE-TRIAL. In an action for the death of a boy caused by his coming in contact with a live wire which defendant had left attached to a lunch wagon standing in front of a vacant lot after service was discontinued, and which fell to the ground after said wagon was moved by a third party without defendant's knowledge or consent, the trial court was not in error in submitting the case to the jury on the issue as to whether such time had elapsed since the wires fell upon the ground and became a public menace that defendant should have observed their dangerous condition and remedied it, in the exercise of reasonable care and vigilance in the conduct of its business under the circumstances shown, and in view of the dangers connected with the business in which it was engaged.1

4. SAME PLEADING

DECLARATION-INSPECTION.

Although the declaration did not contain the words "inspect" or "inspection," the conclusion of the trial court that there was enough in the declaration to warrant the submission to the jury on that issue, held, justified.

5. SAME-NEW TRIAL-WEIGHT OF EVIDENCE.

Held, that the verdict for plaintiff was not so against the weight of the evidence as to require a reversal.

6. DAMAGES-Death-SURVIVAL ACT-EXCESSIVE VERDICT. In an action under the survival act for the death of a boy 13 years old, by electrocution, where the evidence shows that he lived only about an hour after the injury, and the distinction between the "survival act" and the "death act" in this case is largely technical, there being no long period of suffering of mental and physical distress warranting a large verdict to the actual survivor, the verdict for $6,500 held, to a degree excessive, and reduced to $5,000, for which amount judgment is affirmed conditional on acceptance.'

Error to Wayne; Hosmer, J. Submitted June 3, 1919. (Docket No. 10.) Decided October 6, 1919.

Case by Stanislaus Swaczyk, administrator of the

'On the general rule relating to duty of electric company to prevent contact of wires carrying electric current, see note in 52 L R. A. (N. S.) 587.

2On excessiveness of damages for personal injuries resulting in death, see comprehensive note in L. R. A. 1916C, 820.

estate of Stanley Swaczyk, deceased, against the Detroit Edison Company for the negligent killing of plaintiff's decedent. Judgment for plaintiff. Defendant brings error. Affirmed, conditionally.

Oxtoby & Wilkinson (McKee Robinson, of counsel), for appellant.

Clarence P. Milligan, for appellee.

STEERE, J. Defendant appeals from a judgment for $6,500 rendered against it in this action of tort for the death on March 21, 1917, of plaintiff's son, Stanley Swaczyk, a boy 13 years of age, caused by his coming in contact with a live service wire of defendant lying on the ground in a vacant lot on the west side of Russell street between Medbury and Palmer avenues, in the city of Detroit. The wire extended from an electric light pole in an alley at the back of the lot to an idle lunch wagon which had stood when in use at the sidewalk line on Russell street but at the time of the accident had been moved back on the lot some distance, causing a slack in the wires.

Prior to March, 1917, this vacant lot was resorted to as a playground by children of the vicinity at their pleasure and frequently crossed for a short cut in travel by any one finding it convenient so to do. At one time it was temporarily occupied for a carnival. Later this lunch wagon was moved upon the lot and placed for business purposes on the sidewalk line of Russell street. A Mrs. Parsons had a permit to use it for a restaurant from November 1, 1916, to November 1, 1917. She applied to defendant for electric service at the wagon, which was furnished her with the customary connection and meter from December 21, 1916, to January 25, 1917, when it was discontinued and the meter removed. The unoccupied wagon was left on the lot and the service wires to it from

the pole in the alley were left connected by defendant in anticipation that some one might thereafter use the wagon at that point and require electric service, it being customary in such cases, as defendant's evidence showed, to leave such wires connected when removing the meter, in readiness to give prompt electric service to the next occupant. As the wagon then stood and the wires were left no question is raised but that they were put up in a proper manner and left in a reasonably safe condition. It was said to be a frequent occurrence for defendant to furnish electric service in the city of Detroit for a longer or shorter time to portable or temporary structures, such as lunch wagons, fruit stands, small real estate offices, election booths, etc., leaving the wires connected in case of vacancy as was done in this case.

About March 1, 1917, a contractor and builder named Robert Keyes took possession of the lot and commenced the erection thereon of a steel and concrete building for the Central Boiler Works. No basement was contemplated and he began work by excavating a trench for the foundation along the north side of the lot. About a week after work began he found the lunch wagon in his way and moved it back on the lot towards the alley. It was a heavy wagon and he moved it with a crew of men and team, about 40 feet back from Russell street. As this was done he had the slack in the electric wires from the pole in the alley wound up and hung over the glass insulators of the wagon, leaving them extending from the pole to the wagon sufficiently high that men and teams could pass and work under them as before. Building material, such as lumber, steel, brick, etc., was scattered over the lot and Keyes had erected a work shed on the west side of it for storage of cement, tools and other things requiring shelter. Some time before this

207-Mich.-82.