Opinion of the Court-Sanderson, C. J.

is not thereby made vicious. Where the instrument is set out in full as in the present case a technical designation of its legal character becomes immaterial for the obvious reason that the Court can determine from the face of the instrument whether it comes within the statute against forgery. (2 Whart. Crim. Law, Sec. 1467.) But independent of this we think the word "order" a proper designation of the instrument within the meaning of the statute. (Evans v. The State, 8 Ohio St. 196.)

III. It is next claimed, in effect, that the intent alleged in the indictment is an impossible one, and it is argued that inasmuch as the person intended to be prejudiced is neither the drawee nor the payee mentioned in the order, and the order is not drawn payable "to order" or "bearer," and is not transferred by indorsement, Ah You could not have been defrauded by the altering and passing in question. This position is untenable in our judgment. The order was payable to the defendant under the name of Ma Yien Fang, and he is directly charged by the defendant with uttering and passing the same to Ah You, with intent to defraud him. It was not necessary, in order to constitute an uttering within the meaning of the statute, that there should have been a formal indorsement. A delivery of the order with the intent to defraud would be sufficient; and a mere failure to comply strictly with the forms of law cannot be relied on to defeat the charge of criminal intent.

So far as it is claimed that the indictment fails to show in what manner Ah You was or could be defrauded by the transaction, it is sufficient to say that all that is matter of evidence. The charge is direct that the transfer was made with intent to defraud Ah You, which is sufficient so far as the indictment is concerned. It may have [212] been passed as security for a loan. All this is to be proved, but need not be alleged.

IV. The objection to the indictment upon the ground that it reads "with intent to prejudice, damago and defraud,” instead of using only one of those terms, is not tenable. It is true that the statute reads "with intent to prej

Argument for Appellants.

udice, damage or defraud." The use of either of these terms in describing the criminal intent would have been sufficient; but where the intent is described in the statute by different terms stated disjunctively, it is well described in the indictment by the use of all stated conjunctively. (2 Whart. Crim. Law, Sec. 1466.)

V. Nor is the objection that the defendant could not be found guilty of forgery because the charge was for "uttering and passing a forged instrument," tenable. By the statute the uttering and passing, as well as the making, etc., of a forged instrument, is declared to be forgery. Judgment affirmed.

SAMUEL C. HARDING v. TURNER COWING AND H. E. REANARD.

JUDGMENT BY DEFAULT ON GOLD COIN NOTE.-In an action upon a note payable in gold coin, if the defendant suffers a default, the Clerk may enter a judgment against him payable in gold coin.

A JUDGMENT FIXED BY LAW.--When the law declares what the judgment shall be, a judgment entered on default is not the judgment of the Clerk.

APPEAL from the District Court, Fourth Judicial District, City and County of San Francisco.

The defendants appealed from the judgment.

The other facts are stated in the opinion of the Court.

Bennett, Cook & Clarke, for Appellants.

The Clerk has no power under the statute to enter a gold coin judgment. He has no authority to do more [213] than is expressly conferred upon him by statute. (See Wallace v. Eldridge, 27 Cal. 498.)

It requires the judgment of the Court to decide whether the plaintiff was entitled to a gold coin judgment.

There was a fact to be determined which required the interpretation of the contract and its character. This the Clerk could not do.

Section one hundred and fifty of the Practice Act " em

Opinion of the Court-Shafter, J.

powers the Clerk to enter judgment for the amount specified in the summons, including the costs;" but it goes no further than this. It does not constitute the Clerk a Court to determine any question which requires or may require judicial action, and the question whether a contract is payable in gold coin or not, may be, in certain cases, a question of very great doubt and difficulty, and requiring wise judicial discrimination.

E. W. F. Sloan, for Respondent.

and 200, as amended in 1863.

The whole proceeding is in strict accordance with the requirements of the statute. Vide Prac. Act, Secs. 26, 150, (Stat. of 1863, p. 687.) In Wallace v. Eldridge (27 Cal. 498), it did not appear from the facts stated in the complaint that the money mentioned in the contracts sued on was payable in a specified kind of money or currency, hence the judgment as there entered in the District Court was not the judgment of law. But here the complaint does show that the contract is payable in gold coin, and, consequently, the judgment as entered up conforms strictly to the provisions of section two hundred, and is the judgment of law.

By the Court, SHAFTER, J.:

This is an action upon a note payable in gold coin of the United States. The defendants were duly served, and on failure to answer, defaults were duly taken, and a judgment for the recovery of one thousand two hundred and twenty dollars in gold coin, with interest thereon, [214] was thereafter entered against them by the Clerk. The question is, whether the Clerk, as such, had power to enter the judgment without judicial direction.

The action was brought for the recovery of "money only" (Prac. Act, Sec. 150)—for a particular kind of money, but still a recovery of nothing but money was sought, and that fully liquidated in amount. The default admitted the facts stated in the complaint. Thereafter, no question could have been raised except by motion to set aside the default,

Points decided.

or, perhaps, on motion in arrest. No such motion was made, and every point within the purview of a motion in arrest, is within the purview of this appeal. The plaintiff was entitled to a judgment for gold coin, and the statute pronounced the judgment of the law arising upon the facts stated in the complaint. As was held in Wallace v. Eldridge (27 Cal. 498), "the Clerk adjudged nothing; he was merely the hand that entered the judgment of the law." The relief was sub modo special, but still "the action was for money only;" and the relief provided for in the judgment is the relief dictated, identically, by the law. The judgment is in no just sense the judgment of the Clerk. His head did not conceive it; it was merely written out by his hand.

Judgment affirmed.

THE PEOPLE v. GEORGE THOMPSON.

1 INDICTMENT CONTAINING MORE THAN ONE COUNT.-If the indictment contains more than one count, it should appear clearly on its face that the matters set forth in the different counts are descriptive of one and the same transaction.

WHAT DIFFERENT COUNTS IN INDICTMENT SHOULD CHARGE.-An indictment charging the defendant with entering a dwelling-house with intent to steal, may contain different counts, charging the ownership of the goods intended to be stolen in different persons, if each count charge the same entry into the same house and at the same time.

2 STATEMENT OF OFFENSE IN SECOND COUNT IN INDICTMENT.-The words "said," "aforesaid," or equivalent expressions in the second count of an indictment, are necessary to fix the identity of the offense therein stated with that stated in the first count, except as to facts, of which the Court will take judicial notice.

3 NAME OF HOUSE IN DIFFERENT COUNTS OF INDICTMENT.--In an indictment for entering a dwelling-house with intent to steal, if the second count [215] *give the name of the house entered the same as the first, the Court will presume that it is the same house without the word "said" or its equivalent.

ENTERING A HOUSE WITH INTENT TO STEAL.-The offense of entering a dwelling-house in the daytime with intent to steal, created by the Act of February 27, 1861, is complete, if the value of the property the defendant" intended to steal is less than fifty dollars.

1. Cited, People v. Frank, post, 513; State v. Chapman, 6 Nev. 325,

2. Cited, People v. Ah Sam, 41 Cal. 648.

3. Cited, Garwood v. Garwood, 29 Cal. 520.

Argument for Appellant.

1 REVIEW OF INSTRUCTIONS IN A CRIMINAL CASE.-On an appeal in a criminal case, the appellate Court will not review alleged errors in instructions of the Court, unless embodied in a bill of exceptions, or there is an indorsement thereon, signed by the Judge, showing the action of the Court thereon.

APPEAL from the County Court, Sacramento County.

The defendant was indicted under the Act of the 27th of February, 1864 (Statutes of 1863-4, p. 104), against breaking and entering, or willfully and maliciously entering without breaking, in the daytime, any dwelling-house, etc., with intent to steal or to commit any felony whatever therein. The indictment contains two counts. The first count charges him with "feloniously entering, on the 21st day of July, 1864, in the daytime of that day, at, etc., a'certain dwelling-house, to wit, the hotel known as the Crescent City Hotel of one John McRaith, then and there situate, with intent the goods and chattels of the said John McRaith, then and there being, then and there feloniously to steal," etc.

The second count charges the defendant with "feloniously entering on the said 21st day of July, 1864, at, etc., the dwelling-house of one Jolin McRaith, known as the Crescent City Hotel, then and there situate, with intent to steal the goods and chattels of one James McGrath, then and there being," etc.

The indictment was demurred to upon the ground that more than one offense was charged. The demurrer was disallowed, and it is now claimed that such disallowance was

error.

The first count in the indictment charged the value of the goods at sixteen dollars. Defendant was convicted and appealed.

The other facts are stated in the opinion of the Court.

*A. Compte, Jr., for Appellant, referred to section [216] two hundred and forty-one, Cr. Pr. Act, and People v. Connor (17 Cal. 361); and Whart. Crim. Law, Secs. 565

1. Cited, People v. Martin, 32 Cal. 92; People v. Ferguson, 34 Cal. 310; People v. Trim, 37 Cal. 275; People v. Tetherow, 40 Cal. 287; People v. Padillia, 42 Cal. 538.