Page:North Dakota Reports (vol. 2).pdf/432

 the note, and stating that the plaintiff was its owner on March 20, 1885, the complaint proceeds in its third cause of action: “That at said time said note was in the possession of Fuller, Johnson & (o.; and, after plaintiff's removal to the penitentiary, defendant, by means unknown to the plaintiff, obtained possession of said note, and collected the amount thereof from said Kimball, and converted the same to his own use, to plaintiff's damage $75.” This language states a good cause of action at law for the conversion of personal property, but nothing in the language indicates that the transaction was in its nature a trust matter. Respondent’s counsel, conceding that the averment in form sets out a cause of action at law originating in a tort, argues that the plaintiff has a right to waive the tort, and sue for money had and received upon an implied contract. This may be conceded without removing the difficulty. The vital question is whether the note transaction gives rise toa claim against defendant as a trustee, and it does not at all matter whether the claim arises on contract or originates in a wrong.

Counsel further argues that the first paragraph of the third cause of action carries forward and incorporates with that cause of action all allegations in the first and second causes of action, “go far as the same set forth the premises and agreements made by and between plaintiff and defendant, and the obligations arising therefrom.” As already shown there are no averments of the complaint connecting the note transaction with any trust between the parties; but we deem it proper to add that the language quoted above cannot, under the rules of pleading, operate to make any allegations of the first and second causes of action a part of the third. Each cause of action must be complete in itself, but some courts permit a reference to be made to distinct allegations or serparate paragraphs in a preceding cause of action, where the same embody distinct averments of fact, and by such reference re-allege the same facts in a later cause of action. This is perhaps the better rule. It appears to be the rule in New York. Simmons v. Fairchild, 42 Barb. 404; Manufacturing Co. v. Beecher, 55 How. Pr. 193. But a recent case in California is strongly adverse to such a rule. Pennie v. Hil-