with the provisions of the fourteenth amendment of the constitution of the United States, which provides that "no state shall deny to any person within its jurisdiction the equal protection of the laws." This amendment does not impair the police powers of a state. Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. Rep. 357. And we fail to see anything in the rules, or in the statute authorizing them, which falls within the amendment. The case of Yick Wo. v. Hopkins, 118 U. S. 356, 6 Sup. Ct. Rep. 1064, on which the defendant chiefly relies, was one of race discrimination. Exceptions overruled.

(155 Mass. 539)

PRITCHARD v. NORWOOD.

(Supreme Judicial Court of Massachusetts. Essex. Feb. 23, 1892.)

RIGHTS OF HEIRS-UNADMINISTERED ESTATE-CONVEYANCE OF ASSETS-REPLEVIN OF NOTE.

1. A daughter died intestate, leaving a note, which her mother was entitled to as distributee. No administration was had. The mother took possession of the note, and in good faith sold it to defendant for a good consideration. After the mother's death an administrator of the daughter's estate was appointed, and he brought replevin for the note. Held, that the mother had no legal or equitable interest in the note, and her assignee acquired no such interest as entitled him to equitable relief in an action at law provided by St. 1883, c. 223, § 14.

2. Replevin will lie for the possession of a promissory note.

Appeal from superior court, Essex County; JUSTIN DEWEY, Judge.

Replevin for a promissory note by Charles M. Pritchard, administrator of the estate of Mary I. Gould, deceased, against Granville M. Norwood. Plaintiff had judgment, and defendant appeals. Affirmed.

W. H. Moody and H. J. Cole, for appellant. Amos Noyes, for appellee.

MORTON, J. By his demurrer the plaintiff admits all the allegations of the defendant's answer, except, it is agreed, the general denial contained therein. The answer, in substance, alleges that Mary I. Gould died intestate, and was at the time of her death the owner and holder of the note in replevin, and that her mother, Sarah F. Gould, was entitled, as distributee, to all the goods and chattels of said Mary after the payment of her debts; that said Mary left no debts, and no administrator was appointed on her estate till after her mother's death; that the mother took and kept possession of all the estate of said Mary, including said note, believing she had the right to do so, and gave and delivered said note upon a good consideration to the defendant. question is made that the plaintiff is the duly-appointed administrator of the goods and estate of said Mary I. Gould, who, we assume, died within 20 years. The defendant contends that Sarah F. Gould was the equitable owner of said note after the death of Mary, and after she had taken possession of it, and that he succeeded to her rights as equitable owner of it, and that under St. 1883, c.

No

223, § 14,1 he is entitled, in equity and good conscience, to be relieved absolutely against the plaintiff's claim.

There is no doubt that, upon the death of Mary I. Gould, her mother's right as distributee vested in her at once. Hayward v. Hayward, 20 Pick. 519; Nickerson v. Bowly, 8 Metc. (Mass.) 424; Redf. Wills, (2d Ed.) pt. 1, 412. This right gave to her the power to compel, under the direction of the probate court, an administrator, when appointed, to account to her ultimately for the estate. Cathaway v. Bowles, 136 Mass. 54. It did not vest in her a legal or equitable title to the estate, as a whole, or to any particular portion of it. The title remained in abeyance till the appointment of an administrator, and then vested in him, by relation, from the death of Mary. Hatch v. Proctor, 102 Mass. 351; Lawrence v. Wright, 23 Pick. 128; Clapp v. Stoughton, 10 Pick. 468; Jewett v. Smith, 12 Mass. 309; 1 Williams, Ex'rs, (5th Amer. Ed.) *557. As distributee or heir the mother could lawfully take possession of the note, and keep it safely till the appointment of an administrator, but she could convey no title to it, as against an administrator. Lawrence v. Wright, supra. She could not have retained it herself, as against an administrator, even though she was the sole heir at law. Cathaway v. Bowles, supra; Bean v. Bumpus, 22 Me. 554. Though the primary object in the appointment of an administrator is to secure the payment of the debts of the deceased out of his estate, and the distribution among the heirs of any balance that may remain, the probate court may appoint an administrator where there are no debts; and that fact does not affect his title to or right to recover the personal property belonging to his intestate. Without doubt, as sug. gested by the defendant, intestate estates are frequently settled by the heirs among themselves, without the appointment of an administrator. So long, in such cases, as all parties are content to abide by the settlement, it suffices. What the result might be if, after the settlement, a dissatisfied heir or some other person should be appointed administrator, we need not now consider. The defendant concedes that the legal title to the note may be in the plaintiff; and the conclusion to which we have come on this branch of the case is that he shows no equitable title to or interest in it, and therefore no ground for equitable relief.

2. The defendant claims, in the next place, that replevin will not lie for a promissory note. He has referred us to no authority for the proposition. In Bartlett v. Brickett. 14 Allen, 62, it seems to have been assumed, as a matter of course, that replevin would lie for bank-bills, postage stamps, United States bonds, and prom

1St. 1883, c. 223, § 14, in relation to the equitable jurisdiction of the superior court, provides: "In actions at law in the said courts the defendant shall be entitled to allege as a defense any facts that would entitle him, in equity, to be absolutely and unconditionally relieved against the plaintiff's claim or cause of action, or against a judgment obtained by the plaintiff in such action," etc.

issory notes. Such seems, also, to have

en the case as to promissory notes, in Black River Ins. Co. v. New York State Loan & Trust Co., 73 N. Y. 282, and Merrell v. Springer, 123 Ind. 485, 24 N. E. Rep. 258. See, also, Drake v. Auerbach, 37 Minn. 505, 35 N. W. Rep. 367; Smith v. Eals, (Iowa,) 46 N. W. Rep. 1110; Deshler v. Dodge, 16 How. 622. We think it is clear that replevin can be maintained. Judg. ment affirmed.

(155 Mass. 476)

DE SOUZA V. STAFFORD MILLS. (Supreme Judicial Court of Massachusetts. Bristol. Feb. 23, 1892.)

MASTER AND SERVANT INJURIES TO SERVANTCONTRIBUTORY NEGLIGENCE.

In an action for injuries from a machine on which plaintiff was employed, the only negli gence imputed to defendant was its failure to give plaintiff proper instructions as to the dangers incident to his work. Plaintiff testified that it was his duty to feed certain rollers with cotton; that he had been taught how to do it by signals, he being unable to speak English; that he had been at work for 16 days before the accident; that on the day of the accident he went to put cotton into the machine, and found the rollers blocked; that he went to clear the cotton out, when the rollers caught his hand, and when he pulled it out part of it was gone; that his "boss" always cleared the cotton out before; that at this time the "boss" was not there, and he did not wait for him to come back, because the "boss" wanted all the machines going; that no one had ever told him that it was his business to clear the cotton out; that he thought the rollers would start after he cleared the cotton out, but that he did not expect to get his fingers cut. Held, that plaintiff could not recover.

Report_from superior court, Bristol County; EDGAR J. SHERMAN, Judge.

Action by Manuel De Souza, by his next friend, against the Stafford Mills. Verdict for plaintiff. Defendant excepts. Exceptions sustained.

Jackson & Slade, for plaintiffs. Jennings & Braytou, for defendant.

LATHROP, J. This is an action at com. mon law, in which the plaintiff seeks to recover for injuries sustained by him while in the employ of the defendant corporation. The declaration alleges that the plaintiff was injured "by having his left hand drawn in between the feed-rolls of a breaker picker,' so called,-the machine upon which the plaintiff was set at work by the defendant." The only negligence imputed to the defendant is that it failed to give the plaintiff proper instructions in respect to the perils and dangers incident to his work. The plaintiff was a boy 19 years old, of average intelligence and capacity. He was a Portuguese, and unable to speak the English language. Before entering the defendant's employ, he had worked in a mill, sweeping out various rooms, but having nothing to do with machinery, for five or six weeks. At the time of the accident he had been at work on the picker machine for 16 days. This machine consists of an iron frame, over which, in front, moves a flexible, wooden apron, upon which cotton is placed, and is carried forward up to, and unt it is seized by, two fluted steel rollers. These press the cotton down and roll v.30N.E.no.1-6

it into a covered space or box immediately behind the rollers. In this box revolves an iron frame, called a "beater," at the rate of 1,200 revolutions a minute. As the cotton comes through the rollers, it is torn to pieces by the beater, the outer edge of which comes very near to, and extends along, and just back of, the rollers. The upper roller is held down upon the lower roller by heavy weights attached to the ends. These ends rest in an iron slot, and allow the upper roller to play up and down about an inch as the cotton passes through. in thicker or thinner layers. The rolls and beater are controlled by independent pulleys. The apron and rolls are exposed to view all the time. The beater is covered when in motion by an iron cover. This is removed when it is necessary to clean the beater and box. The plaintiff testified that when he was first employed "the boss picker" told him what to do, and set him at work; that he showed him by taking a lump of cotton and throwing it in the picker, and motioning the plaintiff to do the same; and that he received no other instructions. He also testified that he helped clean the machine on Saturdays; that he saw the inside of the machine when it was stopped, but never saw the beater when it was in motion. There was evidence that the plaintiff had received further instructions, but, as this came from the defendant's witnesses, we do not take it into consideration. It was the plaintiff's duty to attend to three picker machines by putting cotton onto the feed-apron; but it was no part of his duty to free the rolls when they got clogged, as the plaintiff testified they did every day. This was attended to by the "boss picker," so called. In regard to the accident, the plaintiff testified that he was putting cotton into three pickers; that he went to one to put more cotton in, and the rollers were blocked; that he went to pull the cotton out, and the rollers caught his hand, and when he pulled it out part of it was gone. He further testified that this was the first time he ever tried to clear the cotton out when the rolls were clogged; that the "picker boss" always cleared it out before; that he cleared it out this time because the "picker boss" was not there; that he did not wait for the "picker boss" to come back, because the "picker boss" wanted all the pickers going; that no one ever told him that it was his (the plaintiff's) business to clear out the rollers when they were clogged; that he was pulling the cotton from the rollers when he got hurt; that the rollers started up; that he had pulled out only a little piece, about eight inches; that he put his fingers near the rollers to pull the cotton out; that the rollers were far enough apart to put his hands through; "that he pushed his hands in; that his hands were caught by the rollers and rolled in; that when the roller caught them he could see the roller perfectly well where the hands were." He further testified that he thought that the rollers would start up after he got the cotton out, but he did not expect to get his fingers cut. The superintendent of the mill,

who knew nothing about the accident until after it happened, testified that he thought the plaintiff's fingers were cut off by the beater; that, if the rolls were turning, his hand would be drawn into the beater. The counsel for the plaintiff admits in his argument that, as the rolls are in sight, the "danger from them is in most part an apparent one, and an appreciation of it may be gained by a comparatively brief observation and experience." He bases his claim to recover on the theory that the plaintiff stopped the running of the rolls when they became clogged; that no injury was done to the plaintiff's hand by the rolls, but that the injury was done entirely by the beater, concerning which he contends that the plaintiff was not warned. The difficulty with this theory is that there is no evi- | dence in the case that the plaintiff stopped the running of the rolls before he attempted to clean them. On the contrary, his testimony is that he knew that when he got the cotton out the rolls were liable to start up. There is no testimony that would authorize the jury to find that the plaintiff's hands were not drawn in by the revolving of the rolls. Although the plaintiff had not seen the beater in motion, he had seen it at rest, and knew that it revolved in close proximity to the rolls. In the language of Mr. Justice WILLIAM ALLEN in Pratt v. Prouty, 153 Mass. 333, 26 N. E. Rep. 1002: "He may not have | realized all the possible consequences of the danger, but that he knew and appreci ated the danger of being hurt, by having his fingers caught between the cylinders, is obvious." See, also, Tinkham v. Sawyer, 153 Mass. 485, 27 N. E. Rep. 6, and cases cited. The ruling requested, that upon the whole case the plaintiff was not entitled to recover, should have been given. New trial granted.

(155 Mass. 534)

COMMONWEALTH V. CAPONI. (Supreme Judicial Court of Massachusetts. Norfolk. Feb. 24, 1892.) POLYGAMY-EVIDENCE.

1. An indictment for polygamy charged defendant with having married one Dello Iacone Maria Gracia. One witness testified that the woman's name was Maria Gracia Dello Iacone, Dello Iacone being the family name and Maria Gracia her given name; that in Italy, sometimes, the family name was put first, and the given name last. Held proper to submit to the jury the question of variance.

2. On an indictment for polygamy a witness testified that he was city clerk and also justice of the peace; that he issued to defendant and one A. a certificate of notice of their intention to marry, and subsequently performed the marriage ceremony for them. There was evidence that defendant and A. afterwards cohabited as husband and wife. Held, that the evidence was sufficient to justify, in charging the jury, the application of Pub. St. c. 145, § 27, which provides that if the marriage was consummated with a full belief on the part of either of the parties that they had been lawfully married its validity shall not be affected either by want of jurisdiction of the magistrate or by omission or informality in entering the intention of marriage.

3. In such case, evidence that defendant's wife was alive and cohabiting with him in 188788, in the absence of evidence of her death, jus

tified a finding that she was living June 2, 1891. 4. In such case, letters from defendant to the second wife are competent evidence against defendant, such letters not being private communications between husband and wife, excluded by Pub. St. c. 169, § 18, subd. 1.

5. The identification of letters by one who testified that she received them by mail was not rendered nugatory by her admission, on crossexamination, that she could not read or write.

Exceptions from superior court, Norfolk County; EDGAR J. SHERMAN, Judge.

Dominic Caponi was convicted on an indictment for polygamy, and brings excep tions. Overruled.

At the trial, the defendant having pleaded not guilty, evidence was introduced by the government tending to prove that the defendant, on June 2, 1891, went to Quincy from Boston with Angelina Campani "to get married;" that she was 16 years old, and lived with her father in Boston; that after going through a form of marriage at Quincy they returned to Boston and cohabited there for two weeks; that they afterwards lived in Rutland, Vt., and while there the defendant left said Angelina and went to Lee, Mass. George A. Spear testified that he was city clerk of Quincy, Mass.; that on June 2, 1891, the defendant and said Angelina came to him, representing that the defendant lived in Quincy and that Angelina was 18 years old, and had no father or mother living; that at the defendant's request he issued to him a certificate of notice of the intention of the parties to marry, first having entered such intention, in accordauce with the requirements of the statute, and subsequently, at the request of the parties, (they being unable to find a priest,) joined the parties in marriage, he being and acting as a justice of the peace. Angelina Campani testified through an interpreter that she was a native of Italy; that they went to Quincy to get mar ried, and were married by a man at the city hall. She also testified that four or five months before December 16, 1891, as near as she could say, she received from the defendant from Lee, Mass., a letter, and another letter to his brother on the same sheet of paper. The letters were shown to her by the district attorney, and she stated that she identified the letters, and that they came to her by due course of mail. The government then offered the letters in evidence, and the defendant objected, on the ground that, as evidence tending to prove a marriage between the parties had been introduced, private communications between them were not competent. The court overruled the objection, and the letters written in Italian were read by the sworn interpreter. In cross-examination Angelina admitted that she could neither read nor write. Although she could not read or write she said she knew from examining the paper and writing that it was written by him. The government offered evidence tending to prove the first marriage of the defendant as alleged in the indictment, i. e., evidence of admissions by the defendant prior to May 30, 1891, of such fact; of general repute and of cohabitation of the defendant and the woman named in Italy

in 1887-88. One of the witnesses said that the first wife's name was Maria Gracia Dello Iacone, Dello Iacone being the family name and Maria Gracia being her given names; that in Italy, sometimes, they spoke of a person putting the family name first and the given name last. In his charge to the jury the court instructed them that they would first determine whether or not the defendant wrote and sent the letters. If they found that he did, they could consider the letters. If they found that he did not, then said letters were not to be read or considered by them. The court instructed the jury that if they were satisfied beyond a reasonable doubt that the defendant, having a former wife then living as charged in the indictment, went to Quincy with said Angelina, and while there with her made the representations and requests testified to by the city clerk, and while there Mr. Spear, as a justice of the peace, solemnized a marriage between the defendant and said Angelina, and they afterwards cohabited together as husband and wife, that would authorize the jury to convict the defendant, notwithstanding the defendant and said Angelina had not given the statutory notice to obtain the preliminary certificate in Boston. The defendant called the attention of the court to the alleged difference in the name of the alleged first wife and the name set forth in the indictment, and asked the court to rule that there was a variance between the allegation and the proof, but the court refused so to rule, and submitted the question of variance to the jury.

C. N. Harris, Asst. Atty Gen., for the Commonwealth. E. Greenhood, for de

fendant.

BARKER, J. 1. The refusal to rule that there was a variance was correct. There was evidence tending to prove the first marriage as alleged in the indictment, with Dello Iacone Maria Gracia. The fact that one witness testified that the true name of that person was Maria Gracia Dello Iacone merely raised a question for the jury. Com. v. Gormley, 133 Mass. 580, and cases cited.

2. The exception to that branch of the charge which dealt with the question of the second marriage must be overruled. There was abundant evidence to authorize the jury to find all the facts necessary to justify the application of Pub. St. c. 145, § 27, which provides that if the marriage is consummated with a full belief on the part of either of the parties that they have been lawfully joined in marriage its validity shall not be in any way affected either by want of jurisdiction of the magistrate or by omission or informality in entering the intention of marriage. Meyers v. Pope, 110 Mass. 314. Hence neither such want of jurisdiction, omission, nor informality could avail the defendant.

3. The defendant's letters were competent evidence against him. It is private conversations between husband and wife which the statute excludes, and not written communications. Pub. St. c. 169. § 18, subd. 1; 1 Greenl. Ev. § 254. The identification of the letters by the witness who

testified that she had received them by mail was not rendered nugatory by her admission, upon cross-examination, that she could not read or write. She might still recognize them pictorially as the work of the defendant's hand, and the value of her identification was for the jury. Foye v. Patch, 132 Mass. 105.

4. The evidence that the defendant's wife was alive and cohabiting with him in Italy in 1887-88, in the absence of evidence of her death, justified a finding that she was living on June 2, 1891. In addition, there was the evidence of the defendant's admission in his letter to his brother. Exceptions overruled.

COON V. ALLEN.

(156 Mass. 113)

(Supreme Judicial Court of Massachusetts. Suffolk. Feb. 24, 1892.)

ARBITRATION-REVOCATION OF SUBMISSION.

After notice that an award is made, it is too late for a party to the arbitration to revoke the submission.

Exceptions from superior court, Suffolk county; ALBERT MASON, Judge.

Action by Howard Coon against William H. Allen on an alleged award. Judgment for plaintiff. Defendant excepts. Exceptions overruled.

John P. Sweeney and Hollis R. Bailey, for plaintiff. John P. Treadwell and Eugene B. Hagar, for defendant.

ALLEN, J. It is too late for a party to a submission to arbitration to revoke it, after receiving notice that the award is made. Macarthur v. Campbell, 5 Barn. & Adol. 518; Musselbrook v. Dunkin, 9 Bing. 605; Brooke v. Mitchell, 6 Mees. & W. 473; Russ. Arb. (5th Ed.) 236, 243, 244, 651; Knowlton v. Homer, 30 Me. 552. The evi dence was satisfactory to show that at the time when the defendant gave notice of withdrawing from the submission the arbitrators had fully performed their office, and signed their award, and delivered it to one of their own number as a completed document. One of them also testified that he was under the impression that he had informed the defendant that an award had been made, au impression which the other evidence renders quite probable. A further inference that the defendant was told, in substance, the result of the award, would be by no means unfounded. A ruling that upon all the evidence the plaintiff was not entitled to recover was rightly refused. Exceptions overruled.

(155 Mass. 509)

BROMLEY V. MITCHELL et al. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 24, 1892.) TRUSTS-VALIDITY OF DEED-RECOVERY OF SUBJECT-MATTER- PARTIES-APPEAL.

1. A finding in favor of the validity of a deed executed two days before the grantor's death, and purporting to convey presently all of the grantor's property upon certain trusts, previously expressed, will not be disturbed on appeal although the trusts were somewhat testamentary in semblance, providing, among other things, for the payment of the grantor's debts, and for gifts to take effect after her death.

2. In an action by the grantee to recover the

subject-matter of the trust, he needed not to describe himself as trustee.

3. The grantor's personal representatives were not necessary parties.

Report from supreme judicial court, Suffolk county; MARCUS P. KNOWLTON, Judge.

Bill in equity by Richard Bromley against William W. Mitchell and others to recover certain property conveyed to him by a deed of trust. From a decree for complainant, respondents appeal. Affirmed.

Williams & Copeland and Wm. H. Sweetland, for plaintiff. Chas. Theo. Russell, Chas. A. Wilsou, and Arthur H. Russell, for respondents.

HOLMES, J. This is a bill to recover possession of certain mortgage notes and mortgage deeds held and secreted by the defendants so that they cannot be come at to be replevied. The defense is rested mainly on the invalidity of the deed under which the plaintiff claims title. The judge who tried the case found the deed to be valid; and the question is whether there is any ground on which we can say, as matter of law, that he was wrong.

The deed is an absolute conveyance of all the grantor's property, which was all personalty, in trust, to apply the income of or proceeds of the sale of the same in accordance with the instructions previously given to the plaintiff by the grantor. These instructions and trusts, as found by the judge, certainly have a very testamentary look; and, as the deed was executed only two days before the grantor died, we appreciate the strength of the argument that the parties must have understood that the instrument was to take effect only in case the grantor died, and that it is not a deed, but an ineffectual will.

But, on the face of the deed, it is a conveyance operating at once and irrevocably; and there is nothing in the parol trusts which is not reconcilable with the same interpretation. It is perfectly possible to convey all one's property upon a present, irrevocable trust, to pay one's debts, and so forth, as found in this case. If the trusts include gifts which do not pass to the possession of the cestuis que trust until the death of the donor, that is not conclusive against the instrument being a deed, and valid as such. Krell v. Codman, (Mass.) 28 N. E. Rep. 578, (Oct., 1891) West v. West, (Mass.) 29 N. E. Rep. 582, (Jan., 1892.) This case is not like that of an instrument purporting to convey only such property as the grantor may own at his death, and leaving him with all the rights of ownership, and free to dispose of what he sees fit, meantime. Gage v. Gage, 12 N. H. 371, In re Diez, 50 N. Y.88; In re Knight, 2 Hagg. Ecc. 554. Nor Is it the case of an instrument purporting to be a will, notwithstanding some ambiguous expressions. See Habergham v. Vincent, 2 Ves. Jr. 204, 230, 231; Hickson v. Witham, Finch, 195, 1 Ch. Cas. 248; Carle v. Underhill, 3 Bradf. Sur. 101. Nor is it like any other, where, rightly or wrongly, the document is construed as revocable on its face. Turner v. Scott, 51 Pa. St. 126;

Frederick's Appeal, 52 Pa. St. 338; Frew v. Clark, 80 Pa. St. 170, 178; Symmes v. Arnold, 10 Ga. 506; Sartor v. Sartor, 39 Miss. 760, 771, 772; Warriner v. Rogers, L. R. 16 Eq. 340, 353. Compare West v. West, su

pra.

If, then, we are to decide in favor of the defendant, we must look outside of the deed. If we do that, it seems a strong thing to say that an instrument purporting to operate at once upon execution may be shown to have been intended or understood by the parties to take effect only on the grantor's death, by evidence which does not go to the height of neg. ativing an effectual delivery. See Green v. Froud, 3 Keb. 310, 1 Mod. 117; Wareham v. Sellers, 9 Gill & J. 98; Lautenshlager v. Lautenshlager, 80 Mich. 285, 45 N. W. Rep. 147, Sharp v. Hall, 86 Ala. 110, 5 South. Rep. 497. Compare Fairbanks v. Metcalf, 8 Mass. 230, 238; Ward v. Lewis, 4 Pick. 518, 520; Stevens v. Stevens, 150 Mass. 557, 23 N. E. Rep. 378; Glynn v. Oglander, 2 Hagg. Ecc. 428, 431, 432. That proposition is very different from saying that when a deed fails as a deed, for some independent reason, it may have effect as a will; a principle formerly applied in England, but now of little practical importance in this state, since the requirement of three witnesses for all wills. Masterman v. Maberly, 2 Hagg. Ecc. 235, 247; In re Morgan, L. R. 1 Prob. & Div. 214; Milledge v. Lamer, 4 Desaus. Eq. 617, 622.

But whether or not the defendants could make out a case outside of the deed, except by disproving the delivery, the understanding of the parties, as well as the delivery, is a question of fact; and whatever is material to the plaintiff's case bas been found in his favor. The evidence is not before us, and there is nothing which enables us to say that the finding was wrong. We must take it that the parties understood and intended an immediate conveyance, if that is material, and that the instrument was delivered. As it pur

ports to be such a conveyance, and as the trusts are consistent with its being so, the plaintiff's case is made out. There are not the same objections to a reference outside the document for the trusts which in Olliffe v. Wells, 130 Mass. 221, were held to exist in the case of a will, if it is not enough to say that the deed gives the plaintiff the legal ownership of the papers.

There is no question here of any intention to defeat rights of third persons, which would have been paramount if the grantor attempted to make the same disposition by will, if such intent could be material when an otherwise valid conveyance is made. Krell v. Codman. (Mass.) 28 N. E. Rep. 578, (Oct., 1891;) White v. Bigelow, (Mass.) 28 N. E. Rep. 904, (Nov., 1891;) Stone v. Hackett, 12 Gray, 227, 233.

There was no necessity for the plaintiff to describe himself as a trustee; Association v. McAllister, 153 Mass. 292, 297, 26 N. E. Rep. 862. It would not have been proper to make the grantor's executor or administrator a party. The issue is simply whether the plaintiff can replevy certain chattels of the defendant, not what will become of them if the plaintiff fails. No one