sanity itself." No objection was made to this question, except as to the form thereof. The second exception was taken to the refusal of the court to hear an argument from one of the counsel for the defense upon a challenge for actual bias after the trial thereof had been concluded. The third objection is, that the court erred in allowing the district attorney to propound a certain question to a juror after he had been examined and passed by counsel for the defendant and for the people. It is clear that there was no error in any of these three rulings, and we think that the court properly declined to incorporate into the bill of exceptions the testimony of the jurors given in their examination on their voire dire.

One of the grounds upon which defendant asked for a new trial was, that the jury had been guilty of misconduct, by which a fair consideration of the case had been prevented. The substance of the misconduct charged consisted in the jurors having disobeyed the admonition of the court about reading newspaper articles during the trial which reflected on the defendant. All of the jurors filed affidavits denying fully the charges of misconduct preferred, and insisting that no admonition of the court had been disobeyed, and that no newspaper articles or anything else, save the evidence and the charge, influenced them in finding their verdict. These affidavits were allowable, and are conclusive upon the point made. (People v. Hunt, 59 Cal. 430; People v. Dye, 62 Cal. 523.) Another ground of the motion for a new trial was, that new evidence had been discovered material to the defendant; but it appears from the affidavits filed in respect thereto that the newly discovered evidence was simply impeaching or cumulative in character. It was therefore insufficient to support the ground for a new trial. (Stoakes v. Monroe, 36 Cal. 585; People v. Anthony, 56 Cal. 397.)

Counsel for defendant in their briefs complain bitterly of the manner and conduct of the presiding judge

during the trial, claiming that they were clearly indicative of a strong feeling of hostility against the defendant and prejudice against his defense; that this feeling was repeatedly manifested in the many severe interruptions of counsel's arguments, and the interjection of questions and objections without any motion or desire therefor on the part of the prosecuting officers; and that such conduct of the judge must necessarily have prejudiced the minds of the jurors against the defendant and his cause, and contributed to his conviction. But, as we have intimated in other cases, these are matters which cannot be shown by the record, unless there is in the language used by the judge in his rulings and questions and remarks something from which this court can say the jurors were prejudiced. The trial judge holds a great trust and responsibility in this regard, which can be controlled only, except in cases of palpable abuse of the power, by his own conscience, and a desire to see equal and exact justice done between the people and the defendant. (People v. Lee Sare Bo, 72 Cal. 623.)

During the trial it appears that several inflammatory articles were published in some of the newspapers tending to prejudice the defendant's cause, and which may have been read by the jurors. While the affidavits of the jurors are, of course, taken as true, and it appears therefrom that no prejudice was created in any way in this case, yet the court below cannot be too careful in guarding itself and the jury from all suspicion of prejudice, by refraining from making remarks which may appear adverse to either party; and should see to it, by proceedings in contempt, if necessary, that no such newspaper articles reach the jury. Judgment and order affirmed.

SEARLS, C. J., SHARPSTEIN, J., MCFARLAND, J., MoKINSTRY, J., and THORNTON, J., concurred.

LXXVI. CAL.-23

[No. 11377. Department One.-May 31, 1888.]

CHARLES D. COON, APPELLANT, v. GRAND LODGE OF THE UNITED ORDER OF HONOR OF CALIFORNIA, RESPONDENT.

APPEAL-ACTUAL ENTRY OF JUDGMENT-ENTRY NUNC PRO TUNC.-The rights of parties in respect to an appeal are determined by the date of the actual entry of the judgment, and they cannot be affected by the entry of the judgment nunc pro tunc as of a prior date. ID.-PREMATURE APPEAL.-An appeal from a judgment taken prior to the date of its actual entry is premature and will be dismissed.

APPEAL from a judgment of the Superior Court of the city and county of San Francisco.

Motion to dismiss appeal. The facts are stated in the opinion of the court.

J. G. Severance, for Appellant.

R. Percy Wright, for Respondent.

PATERSON, J.-Judgment was entered for defendant on demurrer.

The motion to dismiss the appeal herein on the ground that it was prematurely taken must be granted. The notice of appeal was filed and served on November 2, 1885. The judgment was not entered until December 10, 1885. It is not dated, but it is indorsed, “Judgment recorded December 10, 1885, nunc pro tunc as of October 30, 1885." The judgment is not signed by the judge, and there is no order directing the entry thereof as of October 30, 1885; but if it be presumed that such an order was made, it would not avail the appellant.

The rights of the parties in respect to an appeal are determined by the date of the actual entry of the judgment, and they cannot be affected by the entry of the judgment nunc pro tunc as of prior date. The time to appeal begins to run from the time of the actual entry. (Code Civ. Proc., sec. 939; In re Fifteenth Avenue Exten

sion, 54 Cal. 179; Rubber Co. v. Goodyear, 6 Wall. 155; 2 Hayne on New Trial and Appeal, sec. 204.) The appeal is dismissed.

MCKINSTRY, J., and SEARLS, C. J., concurred.

[No. 11364. Department Two.-May 31, 1888.] GEORGE D. SHADBURNE, RESPONDENT, v. ANNIE E. DALY, APPELLANT.

PRACTICE-APPEAL-BILL OF EXCEPTIONS-ERRORS OF LAW-SPECIFICATION OF PARTICULARS.-Where an appeal is taken on a bill of exceptions, errors of law occurring at the trial may be reviewed, although no specification of the particular errors of law on which the appellant relies is contained in the bill.

ID. AMENDING ANSWER-REFUSAL WHEN NOT ERROR.-The refusal of leave to file an amended answer is not error, when the motion therefor is made on the eve of the trial, and the jury is in attendance; and especially is this so when the case is afterwards tried as if all the matters set forth in the amended answer were pleaded. EVIDENCE-QUESTION INVOLVING LEGAL OPINION.-A question calling for the opinion of a witness upon a legal proposition, which erroneously proceeds upon the supposition that the law is as stated in the question, is properly refused. CONSIDERATION-PROMISE TO PAY DEBT OF ANOTHER-FORBEARANCE.— Forbearance by a creditor to present a claim to the executor of the will of a deceased person is not a consideration for a promise on the part of the widow of the testator to pay such claim, unless there was an agreement for forbearance.

ID. BAR OF ORIGINAL CLAIM.-In an action on a written promise to pay a claim against a third person, the question whether the claim was barred as against such third person prior to the execution of the written promise is immaterial.

APPEAL from a judgment of the Superior Court of the city and county of San Francisco.

The facts are stated in the opinion of the court.

E. W. McGraw, for Appellant.

George D. Shadburne, in pro. per., for Respondent.

THORNTON, J.-This action was brought against the defendant as drawer of an order of which the following is a copy:"$315.

SAN FRANCISCO, August 8, 1885. "WILLIAM YOUNGER: Please pay William A. Plunkett, or order, the sum $315, and charge the same to my ac"ANNIE E. DALY." This order was on the 10th of August, 1885, indorsed by Plunkett to plaintiff.

count.

The order was presented to Younger, who refused to accept it, of which defendant was duly notified.

The point is made by the respondent that the bill of exceptions contains "no specification of particulars," and should, therefore, be disregarded. We find no defect in this regard in the bill. No point is made by appellant as to the insufficiency of the evidence to sustain the verdict, and therefore no specification of the particulars in which such evidence is insufficient is required.

No specification of the particular errors of law on which the appellant will rely is made in her bill. But while this is required in a statement of the case (Code Civ. Proc., sec. 659, subd. 3), it is not in a bill of exceptions. (Code Civ. Proc., sec. 650.) The point of respondent, therefore, is not tenable.

We have examined the testimony given in the case on behalf of the plaintiff, and are of opinion that defendant's motion for a nonsuit was properly denied. There was some evidence on each point on which defendant based her motion.

The court did not err in refusing to the defendant leave to file an amended answer. The motion for leave was made on the eve of the trial, when a jury was in attendance. Moreover, we cannot perceive that defendant was injured by the refusal. The cause was tried as if all the matters set forth in the amended answer were pleaded. Counsel for appellant urges nothing to the contrary of this. He states in his points that "the amended