to."

Speaking of the defendant's testimony, the jury were told not to disregard or discredit it solely because the defendant was accused of crime, but that they should judge of his testimony fairly and considerately, applying the same tests, as far as they were applicable to his testimony, that they would apply to all the other witnesses in the case.

The most serious question in the case is that which relates to the following instruction, which was given by the court: "To justify a homicide, the danger menacing the defendant must be present, or apparently so to him, and it must be imminent, or appear so to him at the time of his acting, and the killing must be done on a well-founded belief that it was necessary for the defendant to kill the deceased at the time to save himself from

death or from great bodily injury. The appearance of danger to life or limb which will justify a man in taking the life of another must be an honest one, one that is well-grounded, or apparently so to him, and must arise out of a reasonable cause. A case which originates in the fault of the person himself, in a quarrel which he has provoked and brought on, in a danger which he has voluntarily brought upon himself by his own misconduct, cannot be considered reasonable or sufficient in law to support a well grounded apprehension of imminent danger to his person, and which will support the plea of self-defense. . . . And again, let me say to you, gentlemen, that no person when he is safe and secure from danger has a right to seek his adversary, being armed at the time with a dangerous or deadly weapon, and after seeking his adversary, then provoke a quarrel with that adversary, and during that quarrel, thus provoked or invited by himself, to feloniously use a dangerous or deadly weapon and take his life, and then come into court and claim that he acted in self-defense. The right to take human life, and justify it on the ground

of self-defense, is based upon necessity, or apparent necessity, at the time of the killing."

It is claimed that under this instruction the defendant could not have the benefit of the plea of self-defense, however remote or trifling the fault might be, and no matter what the intention of the defendant was at the time the cause originated with him; that the jury were informed, if they found the defendant guilty of any misconduct, they should deny him the benefit of the plea of self-defense, without regard to the degree or character of his misconduct. If the instruction had not been qualified by others given directly in connection with it, we should be inclined to hold with the appellant, but the court in the same instruction said: "And in that connection, gentlemen, I am asked to instruct you, and I do instruct you in the words asked, and which you will consider as part of the charge of the court, binding upon you, that a party is not deprived of the right to defend himself because he may have by words invited the other to fight. Such invitation does not warrant the party challenged to make an assault with a deadly weapon. Neither is a party deprived of the right to defend his person from a felonious assault because he began the affray, if he afterward, and before the fatal blow was struck, in good faith endeavored to withdraw from the combat. . . . To justify a person in killing another in self-defense, it must appear. . . that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given."

Taking the different portions of the instruction together, we think the jury must have understood the court to say that a person who arms himself with a deadly weapon for the purpose of seeking his adversary and provoking a quarrel with him cannot feloniously use such weapon to take the life of his adversary, and then come into court and claim that he acted in self-defense. The

jury were told in very clear terms that a party is not deprived of the right to defend his person from a felonious assault because he began the affray, if he afterward, and before the fatal blow was struck, in good faith endeavored to withdraw from the combat. We therefore cannot say that the court erred.

We have discussed the charge of the court upon the assumption that it is a part of the record herein. On the twenty-seventh day of April, 1888, there was filed in the court below a bill of exceptions, duly certified, and signed by the judge, but the oral charge of the court is not incorporated into the bill. There is in the transcript a copy of what purports to be a charge to the jury, given by the judge at the trial of this case, and filed by the clerk on February 8, 1888; but it is in no way authenticated. The clerk certifies "the foregoing [including this document] to be full, true, and correct copies of the various. papers of record and on file in my [his] office in the above-entitled cause, and that the same constitute the transcript on appeal"; but the copy is not approved by the judge, and has not even the certificate of the official reporter as to its correctness. As was said in People v. January, 77 Cal. 181, "the clerk cannot give verity to what purports to be the instructions given or refused, by inserting them in the judgment roll."

It is claimed that the motion for a new trial ought to have been granted on the ground of newly discovered evidence. Waiving the objection which is made by the attorney-general, that acts of diligence in discovering what the witnesses would testify to are not shown in the transcript, we think that the newly discovered evidence is cumulative. The court below doubtless considered it to be such, and was of the opinion that the verdict of the jury would not be different if the testimony of the proposed witnesses could be had on a new trial. The principal fact stated in the affidavits on motion for a new trial is that the affiants therein saw Rosengrave

raise a knife or dagger to strike the defendant at the time of the difficulty. But the testimony of the defendant, and of the witness White, is to the same effect, and the case, so far as the defendant's theory is concerned, was put fairly before the jury upon the hypothesis that Rosengrave had, in fact, first assaulted the defendant with a knife or dagger.

Judgment and order affirmed.

PATERSON, J., dissented.

Rehearing denied.

[No. 12727. In Bank.-December 31, 1888.]

JAMES F. McDONALD, RESPONDENT, v. SUPREME OF THE ORDER OF CHOSEN

COUNCIL

FRIENDS, Appellant.

FOR NON-PAYMENT

ΟΙ

MUTUAL BENEFIT ASSOCIATION-FORFEITURE ASSESSMENTS-WAIVER BY ACCEPTANCE OF SUMS DUE AFTER KNOWLEDGE OF FORFEITURE.-The acceptance by a mutual benefit association of assessments after knowledge of a forfeiture by reason of non-payment thereof within the required time operates as a waiver of the forfeiture, in the absence of convention of the parties to the contrary. ID. CONVENTION OF THE PARTIES-CONSTITUTION AND BY-LAWS MUST CONTROL.-The rights of the parties must be governed by the constitution and by-laws of the association. If these documents impose other conditions of reinstatement after forfeiture or suspension for non-payment of sums due beside the payment thereof, such conditions must be complied with. But the rights of the members are not affected by the mere assertions of the officers, or by what they may choose to put upon assessment notices.

ID. INSTANCE CONSTRUCTION OF CONSTITUTION AND BY-LAWS-SUSPENSION OR FORFEITURE-ADJUDICATION BY COUNCIL.-Under the constitution and by-laws shown by the record, the provisions for a re-election and a new medical certificate of a member whose assessments have remained unpaid for a certain time do not apply unless there has been an adjudication of the suspension by the council.

APPEAL from an order of the Superior Court of the city and county of San Francisco refusing a new trial.

LXXVIII. CAL.-4

The facts are stated in the opinion.

A. B. Hunt, for Appellant.

The members of a society such as the appellant is shown to be are conclusively presumed to know its charter and laws, to contract with reference to them, and are bound by them, though they may not be recited or referred to in the beneficiary certificate; they are bound to take notice of them at their peril. (Bliss on Life Insurance, sec. 426; May on Life Insurance, sec. 552; Oseola Tribe No. 11, Independent Order of Red Men v. Schmidt, 57 Md. 106; Treadway v. Hamilton Mutual Ins. Co., 29 Conn. 69; Mitchell v. Lycoming Mutual Ins. Co., 51 Pa. St. 411; Mutual Fire Ins. Co. of Cecil Co. v. Miller Lodge Independent Order of Odd Fellows, 58 Md. 463; Supreme Commandery Knights Golden Rule v. Ainsworth, 71 Ala. 443, 444; 46 Am. Rep. 332; Borgraefe v. Knights of Honor, 22 Mo. App. 140; Simeral v. Dubuque Mutual Fire Ins. Co., 18 Iowa, 322; Coles v. Iowa State Mutual Ins. Co., 18 Iowa, 431.) The deceased ceased to be a member of the appellant, and forfeited all rights secured by his beneficiary certificate, on his failure to pay assessment 99 on the 30th of October, 1888. (Madeira v. Merchants' Ex. Ben. Soc., 5 McCrary, 258; McMurry v. Supreme Lodge Knights of Honor, 20 Fed. Rep. 107; Knights Golden Rule v. Ainsworth, 71 Ala. 436; 46 Am. Rep. 332; Union Mutual Life Ins. Co. v. McMillen, 24 Ohio St. 67; Yoe v. Masonic Ben. Ass., 63 Md. 86; Hogins v. Supreme Council of Champions of Red Cross, 76 Cal. 109; Benevolent Society v. Baldwin, 86 Ill. 479.) The condition that a member who had been delinquent for more than thirty days must, in addition to the payment of all dues and assessments to the secretary of the subordinate council, present a medical examiner's certificate, and be balloted for and elected in the council as prescribed in section 4, article 7, was a valid one, and was an essential feature of the contract, and one which