It is unnecessary to examine the evidence, as we are satisfied that the allegations of the complaint are insufficient to sustain a verdict, convicting the defendant of fraud. The allegations are made, and the verdict is sought in order that the judgment may be enforced by the arrest and imprisonment of the person of the defendant. They must therefore bring the case clearly within the provisions of the statute authorizing arrests, and must be certain and positive, and not ambiguous, argumentative, or in the alternative. The seventy-third section of the Practice Act specifies the cases in which an arrest may be made. In the present action it is sought to bring the defendant within the provisions of the second subdivision of that section which provides for an arrest. “ In an action for a fine, or penalty, or for money or property embezzled, or fraudulently misapplied, or converted to his own use, by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for misconduct or neglect in office, or in a professional employment; or for a willful violation of duty.”

The allegation of the complaint is, that the money was “ collected and received by the defendant as the agent, or attorney in fact, of the plaintiff.” This is, in substance, an allegation that the defendant collected the money as agent, or if he did not collect as agent, then he collected it as attorney in fact. If the defendant can be charged in this alternative form, he may with the same propriety be charged, in the disjunctive form, with the *624collection of the money in every character and capacity specified, thus: That the defendant was in possession of the money collected and received by him as the attorney, or factor, or broker, or agent, or clerk of the plaintiff, or in some other fiduciary capacity. Under no system of pleading would such alternative or disjunctive allegations be permitted. Stephen, in his Treatise on Pleading, lays down as rules, that “pleadings must not be insensible, nor repugnant, nor ambiguous, nor- doubtful in meaning, nor argumentative, nor in the alternative, nor by way of recital, but must be positive in their form.” Pp. 377, 388. Van Santvoord, in his Treatise on Pleading, under the code of Mew York, says: “It was also and still is a rule that pleadings must not be either alternative or hypothetical, as where it was charged that the defendant wrote and published, or caused to be written and published, a certain libel; this was held bad for uncertainty.” P. 200. In 3 Maulé & Selwyn, 113, a motion was made in arrest of judgment, in an action of slander, and Lord Ellenbo, rough, in commenting upon one of the counts in the declaration, says: “If the allegation had been, that he charged and accused the plaintiff of insolvency, by word or act, the count would undoubtedly have been bad; and yet the same answer would apply, that one of the alternatives must have been proved, or the verdict could not have passed for the plaintiff, and that either mode of slander is actionable. * * * The allegation then amount to this, that the defendant, by words, or by words coupled with acts, slandered the plaintiff in his trade, and, therefore, it is bad, and not cured by verdict, as a charge in the alternative.”

Where the character or capacity in which a party is alleged to have collected money, is essential, as in the present case, to the charge of fraud, that character or capacity must be averred .in direct and positive terms, or the charge must fall. The defects cannot be cured by a verdict, as stated by Ellenborough, in the case above quoted, and it follows, they cannot be cured by a judgment by default.

But is urged that the words “ or attorney in fact,” are synonymous with the term “agent,” and, therefore, mere surplusage. We do not so understand their import. All attorneys in fact are agents, but all agents are not necessarily attorneys in fact. Agent, is the general term which includes brokers, factors, consignees, shipmasters, and all other classes of agents. By attorneys in fact, are meant persons who are acting under a special power, created by deed. It is true, in loose language, the terms are applied to denote all agents employed in any kind of business, except attorneys at law, but in legal language they denote persons having a special authority by deed. The allegations of the complaint amount, then, only to this, that the money was col*625lected by the defendant, as general or special agent of the plaintiff.

Judgment affirmed.

I concur with my brother Field, in affirming the judgment of the Court below.

1. The judgment was by default, and the summons was fatally defective in this, that it did not apprise the defendant that, upon his failure to appear and answer, the plaintiff would take judgment against him for fraudulently converting the property of the plaintiff. The notice in the summons was that “ if you fail to appear and answer the said complaint, as above required, the said plaintiff will take judgment against you for the said sum of eleven thousand one hundred and fifty-six dollars and sixty-two cents, interest and costs, etc.” Under such a notice, the plaintiff could only take an ordinary judgment upon default for the money demanded. A defective summons will not sustain a judgment by default. 2 Cal. R., 241.

2. The complaint does not state facts sufficient to authorize the judgment prayed for. It is not only defective in the particular stated in the opinion of my brother Field, but it would not, in my opinion, have been sufficient had the phrase “ or attorney in fact ” been omitted, or had the conjunction and been used instead of or.

The proceeding against a party for fraudulently embezzling, misapplying, or converting property, in the course of his employment, as agent or in any other fiduciary capacity, is, in its essential character, a quasi criminal proceeding, and the defendant should be distinctly apprised of the facts intended to be proved against him. The complaint should state the facts that constitute the party the agent of the plaintiff, if he was but an agent for one especial purpose; and if a general agent, then an affirmative allegation that he was such general agent, either for all purposes of a certain character, or for business purposes of every kind. Agency is usually created by previous contract between the parties, and the contract should be stated. It may be that the whole question of fraud will turn upon the fact whether the defendant did act in a fiduciary capacity. The facts constituting that fiduciary capacity should be stated with as much certainty, at least, as would be necessary in a complaint where the principal sues his agent for unfaithfully or negligently performing his trust.

In this complaint, it was alleged that on a specified day the defendant was in possession of certain moneys collected and received by him as agent, or attorney in fact. The allegation simply is, that defendant collected the money, as agent, not that he then had it in his possession, as such. There is no allegation that he fraudulently converted the same to his own use “ in the *626course of his employment as such.” It is true that he is charged with intending to cheat and defraud. But this is not sufficient. The defendant may have collected, the money as agent, and then his agency may have ceased, and he may have wickedly intended to cheat and defraud the plaintiff, and still not have been guilty of the offence specified by the statute. It is not the conversion of money by every agent that will come within the intent of the statute. But the conversion must be made while he is agent, in the course of his employment as such, and contrary to the contract between him and his principal. If money be collected by a banker for a customer, in the usual course of business, and placed to the credit of the customer, and then used by the banker as he usually does the money of his other depositors, this would not constitute fraud;—if the deposit was special, it would.