it was molded by those subsequent papers, for even those speak in the present tense, and do not profess to have a retroactive operation. If such latent intent was entertained when the deed was made, it was not then executed, nor till at least twelve days subsequently. That an equitable estate of inheritance was designed to be created by this deed, and continued under the declaration and specification of trusts dated the 12th and the 25th of April, there can be no dispute; both these papers, in express terms, declare that the trusts shall be performed to the heirs of the cestuis que trust. That it was the design of these papers that the right, title, interest, or claim whatever it was which the beneficiaries had in this property should descend to their heirs, instead of going to their personal representatives, is placed beyond all dispute by the express language of these papers. This, of itself, is sufficient to show a design to reconvert the property into real estate. In any aspect in which we can view this case, we think the complainant is entitled to have her dower assigned in one third of the trust half of the Hunter property.

If we are correct in our conclusions thus far, it necessarily follows that the complainant is entitled to dower in the interest which her husband owned in the Bard trust property. Indeed, if we lay out of view the papers executed on the 12th and the 25th of April, which we have, in fact, done, the cases are precisely alike. The only difference in the deeds is that, in the first, the word "trustees" is inserted after the names of the grantees, while it is not in the latter deed. But in legal effect, the deeds are precisely alike; whatever estate would be created in the cestuis que trust by the one, would also be created by the other. This last deed was also executed by direction of the beneficiaries, and by it, was created in the cestuis que trust an equitable estate of inheritance which, by our statute, is subject to dower.

Her right to dower in the country lands is not disputed. The only remaining question is, whether the complainant is entitled to damages because her dower was not assigned, in pursuance of her demand, on the twenty-ninth day of January, 1859. Upon this point, no serious question has been or could be made. Although the defendant refused to assign dower in the utmost good faith, believing she was not entitled to it, yet the claim to damages is the same as if her right had been fully appreciated. She is undoubtedly entitled to damages for the delay, since the demand, as to all the prem

ises in which it was his duty to assign dower, under that demand.

The decree must be reversed, and the suit remanded.
Decree reversed.

EQUITABLE TITLE MAY BE COMPLETELY DIVESTED BY CLEAR AND UNAMBIGUOUS DECLARATION OF TRUST: Lane v. Ewing, 77 Am. Dec. 632. PARTNERSHIP REALTY IS HELD BY TENANCY IN COMMON: Buffum v. Buffum, 77 Am. Dec. 249; Dillon v. Brown, 71 Id. 700, and note 703, citing prior cases. When purchased and held for firm purposes, it partakes, however, of the character of personalty to the extent that it is under the control of chancery in making a final adjustment of the affairs of the partnership: Mauck v. Mauck, 54 Ill. 284, citing the principal case; Andrews' Heirs v. Brown, 56 Id. 252; Lang's Heirs v. Waring, 60 Id. 533; Buchan v. Sumner, 47 Id. 305.

WIDOW IS NOT ENTITLED TO DOWER IN PARTNERSHIP REALTY until settlement of partnership affairs, it being first liable to pay the debts of the firm: Dyer v. Clark, 39 Am. Dec. 697; Sumner v. Hampson, 32 Id. 722; Andrews' Heirs v. Brown, 56 Id. 252; Markham v. Merrett, 40 Id. 76.

WIFE IS ENTITLED TO DOWER IN EQUITABLE ESTATE OF HUSBAND capa ble of being specifically enforced in his lifetime: Graham v. Graham, 17 Am. Dec. 166; Stevens v. Smith, 20 Id. 205; Porter v. Robinson, 13 Id. 153. See, however, Safford v. Safford, 32 Id. 633; Pledger v. Ellerbe, 60 Id. 23. The principal case is cited to the point that widow is entitled to dower, where the husband held,such an equitable estate as entitled him to be invested with the legal title: Taylor v. Kearn, 68 Ill. 347; Stow v. Steel, 45 Id. 331, 332; and to the point that to entitle a widow to dower in an equitable estate, it must have been such that in case of the husband's death, it would have descended to his heirs at law as real estate, instead of going to his personal representatives as a chattel interest, or chose in action: Nicoll v. Todd, 70 Id. 296.

RIGHT OF DOWER CANNOT BE DIVESTED without the consent of the widow expressed in the mode pointed out in the statute: Walsh v. Reis, 50 Ill. 479, citing the principal case. See White v. White, 31 Am. Dec. 232; Leavitt v. Lamprey, 23 Id. 685, note 687; Carnall v. Wilson, 76 Id. 351; but the remedy for the enforcement of the right may be barred under a statute of limitations: Owen v. Peacock, 38 Ill. 36, citing the principal case.

THE PRINCIPAL CASE IS AFFIRMED in Nicoll v. Miller, 37 Ill. 407, 412; Nicol ▼. Todd, 70 Id. 296; Nicoll v. Mason, 49 Id. 360, 364.

TROUT V. EMMONS.

[29 ILLINOIS, 433.]

GENERAL AGENT CANNOT BIND PRINCIPAL BY SUBMISSION TO ARBITRATION, without special authority to that effect.

ANSWER IN CHANCERY IS TAKEN AS TRUE, IF NO REPLICATION IS FILED. SWORN ANSWER IN CHANCERY MUST BE OVERCOME BY TESTIMONY OF Two WITNESSES, or its equivalent.

BILL in equity praying injunction against a judgment. The bill alleges that complainant, Emmons, rented a farm of one

Bowman, as agent of the defendant, and had a difference with him about the rent for the year 1854. Emmons still continued to occupy the farm and pay the rent until 1857, when the defendant, Trout, commenced suit against him for the rent of 1854. Emmons and the agent Bowman agreed to submit the matter to arbitration; and the arbitrators decided that complainant was not indebted to defendant for the rent of 1854. The defendant recovered judgment against complainant in the suit instituted against him, at a special term of court, of which complainant knew nothing. The complainant alleged that he had a substantial defense to the suit, and appeared at a subsequent term, prepared to establish it, when he learned for the first time of the special term and the judgment rendered thereat. The defendant answered, among other things, that the complainant refused to pay the full amount of the rent for 1854 because he had not made a good crop; and that defendant had not authorized his agent to submit this or any other matters to arbitration. Decree making the injunction perpetual, and error assigned by the defendant.

E. Beecher, for the plaintiff in error.

J. Baker, for the defendant in error.

By Court, WALKER, J. This record presents the question whether a general agent may submit matters of his principal in dispute to arbitration, in the absence of special authority for that purpose. The trial was had on the bill, answer, and depositions. No replication was filed to the answer, and it must be taken as true. It denies the authority of the agent of plaintiff in error to submit the matter in dispute to arbitration, and the evidence only shows a general authority in the agent to receive the rents. A general agent has no authority to bind his principal to a submission to arbitration. To be binding, such a reference can only be made under a special authority: Bacon v. Dubarry, 1 Ld. Raym. 246; Watson on Awards, 50; Scarborough v. Reynolds, 12 Ala. 252. The evidence failing to show a special authority to refer the matter in dispute, and the authority being denied, the court below erred in enjoining the judgment.

The evidence of Bible is, that in a conversation between the parties, he heard plaintiff in error say he would leave the matter with Bowman, and any settlement which he should make would be satisfactory to him. This manifestly authorized Bowman to act as agent in making a settlement, and any

adjustment he might have made would have bound plaintiff in error. But from this statement it is impossible to infer a special authority to submit the matter to arbitration. It only authorized him to act in person, and not to call upon others, to make an adjustment. But if this were not so, plaintiff in error filed his sworn answer, and it must be taken as true, unless overcome by the evidence of two witnesses or its equivalent. Here there was the evidence of but one, which was not properly receivable to contradict the answer, to which no replication was filed.

The decree of the court below is reversed, and bill dismissed.

Decree reversed.

ANSWER IN CHANCERY RESPONSIVE TO BILL IS TAKEN AS TRUE if no replication is filed: McQueen v. Chouteau's Heirs, 64 Am. Dec. 178; Paul v. Carver, Id. 649; until overcome by the testimony of two opposing witnesses or one such witness and corroborating circumstances: Miles v. Miles, 64 Id. 362. Where, however, the matter set up is new, or not responsive to the bill, it must be supported by proof: Leach v. Fobes, 71 Id. 732, note 734. In Chambers v. Rowe, 36 Ill. 173, it is said: "This court, in the case of Trout v. Emmons, 29 Id. 437, inadvertently intimated that where the answer was under oath, it might be overcome by the testimony of two witnesses, though no replication was filed. This was unadvisedly said, as the rule is differently settled. It is very clear, where the answer is not under oath, it is to be treated as pleading only, and without a replication the cause can be fully heard when set down for hearing on the bill, answer, exhibits, and deposi tions, and oral testimony heard in court, such answer having no more force as evidence than the bill."

AGENT CANNOT SUBMIT TO ARBITRATION an account which he is merely authorized to settle: Huber v. Zimmerman, 56 Am. Dec. 255.

GILLESPIE V. SMITH.

[29 ILLINOIS, 473.]

SIMILITER TO PLEA OF NOT GUILTY, OR TO ANY NEGATIVE PLEA, can be added by defendant, if he chooses to add it, and it is not error to proceed to trial without it.

SPECIFIC OBJECTIONS TO EVIDENCE MUST BE TAKEN IN LOWER COURT. PARTY IS NOT PRECLUDED Under GENERAL OBJECTION TO EVIDENCE from showing in appellate court the insufficiency of the evidence, or from availing himself of radical defects in the instruments of evidence which could not be obviated by proof, and which strike at the foundation of the plaintiffs' claim.

DEED CONVEYING ABSOLUTE TITLE TO TRUSTEES ON DECLARED Trust will not be construed as a mortgage, and there will be no equity of redemption from a sale thereunder.

SALE OF LAND UNDER TRUST DEED WILL NOT BE SET ASIDE IN EQUITY, because the property was not sold in separate parcels, except upon the ground of fraud, or that some one may have been prejudiced by the sale

en masse.

TRUSTEE UNDER TRUST DEED MAY EMPLOY AGENT TO PERFORM MECHANICAL PARTS of sale, or to act as auctioneer, or to advertise and sell the trust lands. This is not a delegation of the trust.

EJECTMENT by appellees against appellant. Verdict for the plaintiffs. Motion for new trial overruled, and appeal. The opinion states the case.

M. McConnel, for the appellant.

Smith and McClure, for the appellees.

By Court, BREESE, J. The appellant assigns for error on this record, that the court erred in admitting as evidence each of the deeds and papers offered by the plaintiffs and objected to by the defendants; in overruling the defendant's motion for a new trial and refusing to set aside the verdict; in rendering a judgment in the cause, in manner and form as shown in the record; and further, in permitting the plaintiffs to call a jury, and proceeding to try the cause, when the defendants' plea of not guilty was not denied and issue joined.

It appears from the record, that three actions of ejectment were brought in the Morgan circuit court by the appellees against the appellant, for different tracts of land, of which the appellant admitted he was in possession, and on his motion and affidavit they were consolidated into one action, to which the appellant pleaded not guilty. A trial was had, and a verdict and judgment for the appellees. A motion for a new trial was entered, which was overruled, and a judgment rendered on the verdict for the appellees.

We do not think any one of the errors are well assigned. As to the last, taking them in reverse order, it ought to be considered, at this day, as a frivolous objection, unworthy of consideration. The similiter to a plea of not guilty, or to any negative plea, can be added by the defendant if he chooses to add it, and it is not error to proceed to trial without it: Waters v. Simpson, 2 Gilm. 577; Williams v. Brunton, 3 Id. 625; Stumps v. Kelley, 22 Ill. 140; Walker v. Armour, Id. 659.

As to the third error, the record shows this form of verdict, and the judgment thereon: The jury say that the defendant is guilty of unlawfully withholding from the plaintiffs the premises described in the plaintiffs' declaration (describing