a quantity of personal property consisting of live stock; that complainant was also a creditor of defendant, and also surety on different obligations; that complainant had indorsed a note for Frank Gault in the sum of $55, which at the time of the filing of the bill of complaint was unpaid, and that complainant was an indorser on a note for $105 given to the Flat Rock Savings Bank. It further avers that said Frank Gault is pecuniarily irresponsible; that he has not paid the rent nor farmed the farm in a manner comporting with good husbandry; that he has allowed the weeds to grow, and the fences and buildings to become out of repair, and the value of the farm to become greatly depreciated by reason thereof; that defendant threatens to sow fall crops, such as wheat, and the like fall grains, on said farm this season, and insists on his right to harvest the same during the summer of 1908; and that defendant has announced his purpose of holding said farm for the period of three years from April 1, 1907, and has threatened complainant with personal violence if he attempts to come upon said farm to make any necessary repairs on said farm, and to prevent waste. The bill also avers that Frank Gault has disposed by bill of sale of all his property to his wife, Neta Gault, to defraud complainant, as he believes, of his rent, and to render him, complainant, liable to pay said promissory notes, on which complainant is indorser, and to lose those due him; and that said transfer is a fraud upon complainant's rights, and is without any consideration what

ever.

There is a prayer for specific relief not very clearly stated, and a general prayer for relief. The answer admits some of the averments of the bill and denies others. The defendant admits that defendants intend to sow fall wheat on the land described in said bill of complaint, and claims the right to harvest the crops, and admits that the said Frank Gault intends to hold said farm for three years from April 1, 1907. Then follows a prayer in the nature of a cross-bill, which clearly shows that an agreement was

made which was to be reduced to writing, and that, acting upon said agreement, defendants entered upon the premises. The prayer was for affirmative relief. Complainant answered the cross-bill. After complainant had put in his proof, the following occurred in open court:

"Complainant thereupon rested. Counsel for defendant thereupon asked leave of the court to withdraw their cross-bill for the reason that on account of the title to the property being in complainant and his wife that decree in this cause would be of no value to them. Leave was granted and the cross-bill withdrawn. Counsel for defendants thereupon moved the court to dismiss the bill of complaint for the reason that all of the relief prayed for in the bill of complaint had been given complainant. Counsel for complainant thereupon moved the court to construe the lease under the prayer for general relief, to which counsel for defendants objected. The court thereupon said: 'I will tell you what I will do, Mr. Atkinson. I will pass upon this question, and you may have—although you have rested you may have permission now to introduce such testimony regarding the tenancy as you desire; I will pass upon it. I will construe the prayer of the bill generally, the general prayer of the bill to be sufficiently broad to entitle the complainant to this relief, in spite of the fact that you have withdrawn your cross-bill, in which you ask for certain relief yourself.'

"Mr. Atkinson: "I think, your honor, under the circumstances, we will leave the order withdrawing the cross-bill and take the case up and have it passed upon.'

"Counsel for defendants not desiring to put in any testimony, the court said: 'Under the testimony you may take a decree to the effect simply that the tenancy by which the defendant holds here is 2 a tenant from year to year and will expire on the 1st of April, 1909."

The decree went farther than the above suggestion, and granted affirmative relief.

The solicitors for defendants present the following propositions as involved:

"(1) To what extent is the power of a court of equity to grant relief not specifically prayed for limited by the nature of the pleadings and the relief specifically prayed for, when there is a prayer for general relief?

158 MICH.-20.

"(2) When all the relief specifically prayed for has been granted, can the court grant relief for which there is an adequate remedy at law, for the purpose of avoiding litigation?

66

(3) If in this case the court under the pleadings had power to construe the lease, is the construction made by the decree the proper one?"

Each of these propositions is argued. On the examination of the complainant the following testimony was given by him:

*

* *

"I did not get any rent until I sued for it. We served them notice to pay the rent, and proceeded before the circuit court commissioner. We had a hearing in July, 1908. They paid me $243, which was rent for one year and two months. They also paid the July, 1908, rent."

We think the record discloses a case where the complainant has so complete and adequate remedy at law that the aid of equity ought not to be invoked.

The decree is reversed. The bill of complaint is dismissed, with costs, but without prejudice.

BLAIR, C. J., and MONTGOMERY, OSTRANDER, and MCALVAY, JJ., concurred.

NELSON v. PITTSBURG COAL DOCK CO.

MASTER AND SERVANT-DEFECTS IN APPLIANCES AND MACHINERY -INSPECTION.

In an action for personal injuries resulting in the death of plaintiff's intestate, evidence that a defective bolt in a hoisting apparatus, which broke and permitted a coal bucket to fall and cause the injuries, might have been detected by an ordinary inspection, raises an issue of fact as to the negligence of defendant.

Error to Delta; Stone, J. Submitted April 16, 1909. (Docket No. 75.) Decided October 4, 1909.

Case by Swan G. Nelson, administrator of the estate of Louis Oscar Nelson, deceased, against the Pittsburg Coal Dock Company for the negligent killing of plaintiff's intestate. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error. Reversed.

Albin W. Norblad (Newton C. Spencer, of counsel), for appellant.

G. R. Empson (E. C. Eastman, of counsel), for appellee.

MONTGOMERY, J. This action is brought to recover damages for personal injuries resulting in the death of plaintiff's intestate, which injuries were sustained while in defendant's employ on their coal docks at Gladstone, Mich. The coal dock was used for the purpose of unloading coal from boats placed at the side of the dock onto the dock. On the top of the trestle work built over the dock proper, and over the platform, were placed a number of coal-hoisting derricks. The boats were moored alongside the dock, after which the hoisting derricks would be moved on top of the dock in such a position that the booms of the derricks could be placed immediately over the hatchways of the boats. Coal buckets would then be lowered from the derricks into the hold of the boats through the hatchways, where they would be filled with coal by men stationed there. The men stationed in the hold of the boat were in the employ of the defendant, and among their number was plaintiff's intestate, who worked as a coal heaver or shoveler. In the hold of the vessel the men were provided with two buckets, so that, when one was full and being hoisted and emptied of its contents, the other was being filled.

The hoisting apparatus can best be understood by the following diagram: