Page:Harvard Law Review Volume 5.djvu/364

348 348 HA R VARD LA W RE VIE W. that the plaintiff has been induced to purchase relying on the repre- sentation arising from every contract of bailment, that the bailee will be true to his promise to keep the goods in his possession. But is this satis- lactory? Through how many transfers, and for what period of time, will the court apply this rule and say that the statute has not been running in favor of the defendant although it has for the benefit of his as- signees? Moreover, the inquiry suggests itself, after an act of con- version, can a subsequent demand and refusal constitute a fresh conveision? Regarding the action as one of detinue, the decision is no more satisfactory ; for the action, if detinue sur trover, must be based on the demand and refusal, and the difficulty suggested above recurs, namely, that since the goods have been the plaintiffs the defendant has never had them. If the gist of the action is detinue sur bailment, then the contract from the breach of which the action arises is that made with the plaintiffs assignor, but for the assignee to maintain the action in his own name is indefensible, on principle. Besides, as was said before, it is clear that the court considered that the right which the plaintiff is seeking to enforce is not that derived from the assignment, but one which is original with himself. LECTURE NOTES. [The following 1 note was prepared by Professor Gray and read by him to the third-year class in connection with the case of Wilkinson v. Duncan, p. 661 of Vol. V. of the Cases on Property.] Remoteness of Separable Gifts. — Since Griffith v. Pownall, 13 Sim. 393 (1843), it nas been settled that if the persons to whom a devise or legacy is made are described as a class, but the amount of the gift to each member of the class is in noway affected by the gift to any other, then the gifts are separable, and some may be valid though others are too remote. Thus a legacy of $1,000 to each of the testa- tor's grandchildren who reaches twenty -five is a valid gift to all the grandchildren who are alive at the testator's death, although it is not a good gift to those who are then unborn. The case of Wilkinson v. Duncan, 30 Beav. in (1861), has gener- ally been cited as an illustration of this principle, but without sufficient attention to its facts. In that case property was given upon trust for G for life, and on G's death to such of his children, and in such man- ner, as he should appoint. G appointed $2,000 to each of his daughters on reaching twenty-four. He had four daughters, three over and one under three years of age. (See 7 Jur. n. s. 1182.) It is not distinctly said that none of the daughters were alive at the time of the creation of the power, but as no reference was made to such a fact, and as the power was created twenty- three years before its execution, it may be assumed that none of the daughters were then born. Sir John Rom- illy, M. R., held that the gifts to those daughters who were over three years old at their father's death were not too remote. Let us consider the case first as if it were a direct gift ; that is, sup- pose the testator had given $2,000 to each one of G's daughters who should reach twenty-fjur, and as the gifts to the daughters are inde- pendent, let us consider separately the gift to a particular daughter, whom we will call X. In order that X shall take, what must hap- pen? X must be born and she must reach twenty-four years of age. It is not certain that she will be born until just before the death of her