PORTER v. HERMANN, 8 Cal. 619

Field, J., after stating the facts, delivered the opinion of the Court. 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 collection 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 collected by the defendant, as general or special agent of the plaintiff. Judgment affirmed.