delivered the opinion of the court.

. The'plaintiff instituted an action of detinue for the recovery of a negro woman. It appeared in evidence, that the negro was given to the wife of the plaintiff during coverture. That they agreed to separate and live apart; at .the time of making this agreement, the plaintiff gave .the pegro in question to his wife. Sometime after the separation, the parties were divorced, to wit, in April, 1837, and in March, 1838, this suit was instituted.

Under this state of facts, the jury found a verdict for the defendant, and the plaintiff brings this suit of error to reverse the judgment, having objected, on, the. trial, to the admission of the agreement to separate, and the paper purporting to be a gift, and insists upon his right to recover on the ground that the property was vested in him during the marriage, and never legally parted with.

For the defendant, the gift of the negro to the wife is relied on as a separate gift to ■ the use of the wife, and if not so, that the gift of the husband to her is valid and binding.

The deed of gift introduced, is an absolute gift to the wife without qualification. It did not, profess to give her a separate property. It consequently vested an absolute right in the husband, and unless he has legally divested himself of that right, he must be entitled to recover.

The instrument relied on as a gift to the wife from the husband is very uncertain in its terms, and leaves it rather doubtful what was intended; but in its most favorable aspect, it was insufficient to constitute a defence at law.

In the first place, the court erred in permitting the agreement to live separate, to go to the jury. Such agreements have no validity. It is true, that both courts of equity and courts of law have gone so far as to enforce contracts for separate mainte*327nance, as to compel payment of the sum agreed on; but this is not on the ground that the agreement to live apart is binding, or tended to dissolve the marriage. They can have no such effect. Such agreements, when made through a trustee, are held to be binding, so far as to give the remedies provided by the agreement. This agreement was not through a trustee, and was improperly permitted to go to the jury.- -

If the marriage was not dissolved, as a matter of course, the gift of the negro woman by the husband cannot be made available at law, and was improperly admitted as evidence. There was nothing in it that could make it operate as an agreement for separate maintenance. We have examined the authorities relied on by the defendant’s counsel. Such a gift as the present was sustained in the case reported in 3 Dessaussure, but it was in equity, and not at law. Such matters are peculiarly cognisable in equity, and if the defendant has a remedy it is there, and not at law. /

The judgment must be reversed, the cause remanded, and a venire de novo awarded.