ute; that is, in Detroit the law fixes the hours of opening, the wrongful sale for intoxicating purposes and to minors, or on Sundays, and the control of the saloon business in Detroit is given over to the recorder's and the police courts, and, the question not all being a new one to me and being before the Supreme Court in three ways, this being the fourth way, I do not feel I ought to enter into the broad sea of controlling the liquor business, and therefore shall decline to interfere with this until I hear from the Supreme Court, shall decline to hear a defense because I hold I am not vested with jurisdiction."

Considerable testimony was introduced after that, including the dialogue between the circuit judge and Mr. Barnett, and he then filed the opinion called in the record the "second opinion," which shows that he disposed of the case upon the merits, as well as upon the ground that there was no jurisdiction in the circuit court to grant relief. We have read the testimony, and unhesitatingly say that a more obvious case of private nuisance has not been presented to this court within the recollection of the oldest member, and none has been more clearly proved. We must also confess our ignorance of authorities which would justify the court in his conclusion that, while there is a 'jurisdiction in a court of equity to abate a private nuisance, ordinarily it has not jurisdiction if it is so much of a nuisance as to make criminals of those who maintain it. We find such authority neither in the brief of counsel nor in the opinion of the court, and the proposition is so at variance with the settled law that we are not surprised at its absence.

Equity has jurisdiction to abate a saloon if a private nuisance, although the nuisance is also a breach of the criminal law. See State v. Collins, 74 Vt. 43; State, ex rel. Thorndike, v. Collins, 68 N. H. 299; Joyce on Nuisances, §§ 365, 366, 422, et seq.; Beck v. Protective Union, 118 Mich. 497 (42 L. R. A. 407); 10 Current Law, p. 1042; People v. Board of State Auditors, 42 Mich. 422. That this nuisance is one which affects the rights of these complainants in a manner different from that ex

perienced by the public in general is in our opinion obvious. We think it unnecessary to spread upon this record the obscene details of the evidence on which we base our conclusion. See Forbes v. City of Detroit, 139 Mich. 280; McCormick v. Weaver, 144 Mich. 6; Robinson v. Baugh, 31 Mich. 290; People v. White Lead Works, 82 Mich. 471 (9 L. R. A. 722); Brady v. Spring Co., 102 Mich. 277 (26 L. R. A. 175); Skelton v. Power Co., 100 Mich. 87; Edwards v. Mining Co., 38 Mich. 46; Pratt v. Lewis, 39 Mich. 7; McMorran v. Fitzgerald, 106 Mich. 652; Treat v. Bates, 27 Mich. 390; Townsend v. Light Co., 105 Va. 22 (4 L. R. A. [N. S.] 87, 8 Am. & Eng. Ann. Cas. 567, note); Fisher v. Railway Co., 102 Va. 363 (1 Am. & Eng. Ann. Cas. 625); Rushmer v. Polsue, 4 Am. & Eng. Ann. Cas. 378 (L. R. [1906] 1 Ch. Div. 234), note; Ingersoll v. Rousseau, 35 Wash. 92 (1 Am. & Eng. Ann. Cas. 35, 38). Many more authorities in point will be found cited in complainants' brief.

The decree dismissing the bill is reversed, and it is adjudged that said saloon, café, and dance hall as heretofore maintained by said Barnett are a nuisance, and that he abate said nuisance, and that he be perpetually enjoined from hereafter conducting or maintaining the same or any similar place upon the premises, and that defendant Oppenheim be restrained and enjoined from renting or leasing said premises for such purpose. A decree will be entered in this court awarding costs of both courts to the complainants against both defendants and remanding the cause, with directions to the circuit court for the county of Wayne to enter a decree in conformity with this opinion.

OSTRANDER, MOORE, MCALVAY, and BROOKE, JJ., concurred.

SHOW ALTER v. MODERN WOODMEN OF AMERICA.

1. LIFE INSURANCE-BENEFICIAL ASSOCIATIONS-BY-LAWS-PROHIBITED OCCUPATIONS-WAIVER-INSTRUCTIONS.

In an action for the payment of a benefit certificate, defended on the ground that deceased came to his death while engaged in an occupation prohibited under a by-law of the society, an instruction that if the jury should find that the officers of the local society received his premiums with knowledge that he was engaged in such prohibited occupation, it was a waiver on the part of the society to insist on the provisions of said by-law, and that the failure of the officers of the society to return the amount of such premiums to the representatives of assured upon learning of the fact of such employment after the death of the assured, amounted to a ratification of the waiver by the local society, was erroneous; since (a) there had been no demand for the return of such premiums, nor failure on the part of the society to do any act to avoid a waiver of the provisions; (b) the contract of insurance being made with the society, it was not bound by the action of the local society; and (c) the certificate of insurance being in force except as to death caused by being engaged in the prohibited occupation, the society would be justified in assuming that the payments were made for the benefits which were still open to him.

2. SAME.

Where, in such action, it appeared that the society, upon learning of the death of assured, claimed as a defense to the payment of the amount of the certificate that the assured came to his death by accident directly due to employment in a prohibited occupation, and later, on request of the attorneys for the beneficiary, furnished blank proofs of death, expressly stating that by so doing it did not waive its right to make the said defense, there was no waiver of such defense on the ground that it permitted the beneficiary to incur expense in preparing the proofs of death. Burnham v. Casualty Co., 117 Mich. 142, distinguished.

Error to Lenawee; Chester, J. Submitted February 23, 1909. (Docket No. 46.) Decided April 24, 1909.

Assumpsit by Agnes Showalter against the Modern Woodmen of America on a policy of insurance. There was judgment for plaintiff, and defendant brings error. Reversed.

Truman Plantz and Smith, Baldwin & Alexander, for appellant.

Bird & Sampson, for appellee.

MONTGOMERY, J. This action is based upon a certificate of membership issued to the husband of plaintiff, Albert W. Showalter, a member of Wyandotte Camp of the Modern Woodmen of America. The certificate of membership and the laws of the order provided for the payment to the beneficiary named in the certificate of $1,000 in case of death, but also provided in its by-laws-which were made a part of the contract-by section 14, that any person engaged in certain occupations should not become beneficial members of the society. Among other employments desig nated was that of railroad brakeman on trains, except passenger trains using air brakes only. The effect upon an existing certificate of a holder becoming engaged in the prohibited employments was provided for in section 15, which reads:

"Engaging in, or entering on, or continuing in, any of the occupations or employments enumerated in section 14 of these by-laws, by any beneficial member of this society, heretofore or hereafter admitted to such membership, shall totally exempt said society from any and all liability to such member, his beneficiary or beneficiaries, on account of or claimed as growing out of the death of such member by accident directly traceable to employment in such hazardous occupation or to disease directly traceable thereto."

Mr. Showalter, after taking out his certificate of membership, engaged in the service of the Detroit Southern Railway as a freight brakeman. His death occurred through his foot being caught in a frog and his being run over by the cars. It is obvious, therefore, that no liabil

ity attached to the defendant by virtue of the terms of the contract, unless it can be successfully contended that there was a waiver of the provisions of the policy, and this is claimed. Two grounds of waiver are urged: First, that there was a waiver by accepting the payment of the dues by the local camp with knowledge that the decedent was engaged in the prohibited employment, coupled with the fact that the dues were remitted to the general body and retained and not returned to the assured or his representatives; second, it is claimed that the waiver of this defense to the policy occurred through the action of the company in requiring or permitting the plaintiff to incur expense in preparing proofs of loss.

The alleged waiver by the receipt of the dues is based upon the testimony of the clerk of the local camp at Wyandotte, and of the plaintiff, the latter of whom testified that Mr. Morganthau, the clerk of the local camp, asked her at one time when she went to pay the dues how Mr. Showalter liked his job, and if he had plenty of work. She replied that he had, and that he, Mr. Showalter, expected to quit the service of the railroad soon; that he was going to quit the Detroit Southern as brakeman as soon as he could find something else to do. It appears that, after the death of Mr. Showalter, information of the fact that he had been engaged in braking, and that his death was directly traceable to his employment as freight brakeman, came to the home office, and the circuit judge submitted it to the jury upon this branch of the case upon the theory that the receipt of the premiums by the clerk of the local camp with knowledge on his part that the insured was engaged in the business of braking was a waiver of the right on the part of the company to insist on the provisions of by-law 15, and that the failure of the officers of the home office to return the amount of the assessment to the representatives of the assured upon learning of the fact of such employment after the death of the assured amounted to a ratification of the waiver by the local camp. We think there are two answers to this