Page:Harvard Law Review Volume 9.djvu/379

NOTES, 351 property, it seems to be settled that such ^ transfer can be questioned by no one but the State. From this it is assumed that only the State can interfere in the carrying out of a devise. But why is it that a grantor cannot question his grant? He has seen fit to pass his property out of his own hands into the hands of the corporation, and he cannot afterwards be heard to say that the corporation was not capable of receiving the property. The law so far recocjnizes the existence of the corporation's power to take the grant, that it will not interfere to undo for the benefit of an individual that which the individual has voluntarily done. One should not say, perhaps, that the grantor is estopped from questioning the grant, because the elements of a true estoppel are lacking ; but one can say that where such a transaction is executed, where everything has passed between the parties themselves, and all is completed, the law will not move itself to disturb the status quo. When it comes to giving effect to a devise, the law is put in a far different position. Instead of being allowed to stay its hand, it is asked to take an active part in transferring to a creature of its own making property which it has forbidden that creature to take. Before, the transaction had been exe- cuted, and the law chose not to disturb it ; now, the property has yet to pass to the corporation, and the law is called upon to declare positively that it shall so pass. That the law should, as in this second instance, refuse to take part in a forbidden act, appears to be in accordance with both the dignity of the judiciary and the intention of the legislature. Whenever the question comes up before the Supreme Court of the United States for a decision, an interesting circumstance will be that the judge who delivered the opinion in the McGraw case was Mr. Justice Peckham. Custody or Possession. — In Holebrook v. State, 18 S. R.^ 109, the Supreme Court of Alabama seems not to distinguish between possession and custody. The indictment was for larceny. The prosecuting witness hired the defendant to convey him to a railroad station. Arriving there, he left with the defendant a quilt, which the defendant agreed to return to the house of the witness. Instead, the defendant sold it. The court sustained the verdict of guilty, on the ground that the defendant was not given possession, but mere custody. The court recognizes the established rule of the common law that there is no larceny without trespass to possession, but takes it for granted that the defendant received only custody of the property. The reason for this assumption is not clear, unless it can be gathered from a passage from Rose. Cr. Ev. § 646, which the court quotes without comment. This is merely a statement of the rule that, where a master delivers goods to a ser- vant, the servant has only the custody of the goods. Obviously, it has no bearing on the case under consideration. Here, though it is often difficult to determine just what are the limitations of the doctrine of master and servant, there was obviously no such relation. The defendant was exactly in the position of a private carrier, and as such received the possession, not the custody, of the property. Doubtless the court was moved by the fact that, whether the defendant was convicted of larceny or embezzlement, his penalty would be practically the same, and to avoid further litigation sus- tained the conviction of larceny. But this seems no excuse for direct depar- ture from principle. It was to cover just such cases as this that the Statute 46