
    The Grand Gulf Bank vs. Henry W. Barnes, et al.
    In a grant of property to a married woman, the words “ in her own right,” would not, by the common law, convey a separate estate in the property to the wife, but would operate as a conveyance of the property to the husband.
    The statute of this state (How. & H. 332,) allowing married women to become “ seised, or possessed, of real or personal property, in her own name, and as of her own property,” merely secures to the wife the specific property ; the proceeds and profits of the property, and other property purchased with the proceeds and profits, are liable to the creditors of the husband.
    On appeal from the Claiborne circuit court.
    The Grand Gulf Bank recovered judgment against H. W. Barnes, and H. N. Spencer, on the 10th of June, 1841, in Claiborne circuit court, for $1136 66.
    Execution issued to November term, 1841, which was levied on “ one pleasure carriage,” as the property of H. N. Spencer. Mrs. Sarah A. Spencer, wife of H. N. Spencer, made affidavit of her right to the carriage, and gave the sheriff a claimant’s bond, under the statute. At the return of the execution, the .plaintiffs tendered an issue upon the claim of property, which was joined, and, upon trial, verdict was found for the claimant. ■
    The bill of exceptions shows, that on the trial, the plaintiff proved by the deputy sheriff, Burnett, that he made the levy on ‘ the carriage, and that he found it in possession of H. N. Spencer, who said it belonged to his wife, who would give a claimant’s bond for it.
    The plaintiffs, then, read in evidence a petition filed by them, for a discovery against Mrs. Spencer, alleging that the carriage was purchased with the money of H. N. Spencer, or money arising from the production of his property, and the labor of his hands; and charging, particularly, that the money given for said carriage was procured by Mrs. Spencer, by the sale of butter, milk, meat, vegetables, &c., made by her, and sold, and praying a discovery, &c.
    They also read in evidence the answer of Mrs. Spencer, to said petition, in which she states that she purchased the said carriage herself, from James Grafton, in the winter of 1840, for the convenience of herself and family, to go to church; that she agreed to give $756 for it, and paid $375, in the early part of 1841, and gave her note for the balance, due January 1, 1842, part of which is unpaid. She states that in 1840, her father, Samuel Marshall, conveyed to her, in her own right, ten negroes, eight of whom are grown hands, and put them in her possession. That her husband, Spencer, worked said negroes, and received the benefit of their services; and the money paid by her, to said James Grafton, was money allowed her by her husband, for the hire and services of said ten negroes y and contends that she was entitled thereto, and that the carriage is her separate property.
    It was agreed that the value of the carriage was $400.
    Claimant then offered in evidence a bill of sale, from James Grafton, to her, for said carriage, dated 22d March, 1841, duly acknowledged and recorded, which was all the evidence in the cause.
    The plaintiffs requested the court to charge the jury, that if they believed, from the evidence, that the carriage in controversy was bought and paid for by money derived from Horatio N. Spencer, they should find the issue in favor of the plaintiffs in execution. Which charge the court refused to give, as requested ; but, against' the plaintiff’s consent, qualified it, by inserting after the name of Spencer, the words, “ being his own money,” and gave it to the jury so qualified.
    The plaintiff then requested the court to charge the jury, “that if they believed, from the evidence, that the said carriage was bought by the claimant, and paid for by money allowed her by her husband, the said defendant in the execution, as hire for negroes given or conveyed to her, after their marriage, they should find for the plaintiff',” which instruction was refused.
    The claimant, by attorney, requested the court to charge the jury, that if they believed that Mrs. Spencer purchased the carriage in question, with the labor of negro slaves conveyed to her, as her separate property, by her father, in the year 1840, they must, by law, find for the claimant, which instruction was given to the jury.
    The plaintiffs in execution excepted to the opinion of the court, in overruling the two charges, as requested by them, and also in giving his first instruction, with the qualification annexed to it by the court, without his consent; and also to the ■opinion of the court, in giving to the jury the instruction prayed for by the counsel for the claimant.
    The errors assigned are :
    1. That the court erred, in refusing to give the charges asked for by the plaintiff.
    2. In amending and altering the charge asked for by the plaintiff, without his consent.
    3. In charging the jury,'as requested by the claimant’s -•counsel.
    
      J. H. Maury, for appellants.
    In the trial of this case below, a question arose on the construction of the statute, ch. 40, sec. 9, p. 482 of Howard & Hutchinson, regulating the manner of exercising the judicial function of expounding the law to juries. The legislature was not unmindful ■of the benefits that would be lost to the administration of justice, •in denying the privilege of unlimited comment to a judge of •learning and integrity, to administer the law wisely and impartially, and of ingenuous candor to submit his opinions without equivocation to the scrutiny of a revising court. But from the nature of the institutions of man, and from the actual experience of this country, it was apparent that the bench could not be always furnished with these rare qualifications. The mischief arising from an ignorance of the law, or its mal-adminis-tration, is furnished with an antidote in the vigilance of the party, while he may place the acts and the decisions of the court with certainty in the record. By the statute the judge is ■made an arbiter of the law only when a question is raised by a difference of opinion between the parties. And when there is a difference of opinion, the judge may charge the jury, but his charge must be delivered in the form of a proposition, “which shall be distinctly specified in writing by the party asking such charge,” sec. 9. The proposition is required to be in writing, that it may be permanent and certain, and protected against the prevarications of a judge, who would resort to'the low expedient of upholding his opinions, by presenting them to the revising court, with colorings or modifications that would change their character. It is required to be specified in writing by the “party” asking the charge: because being most interested in the matter, and presumed to understand his business, when he has ascertained his own opinions of the law, and deliberately specified in writing the charge he desires the court to deliver to the jury, it is the duty of the court either to give or refuse the charge as asked. When the court shifts the question by charging a proposition that is neither relied on nor requested, he manifestly evades both the policy and terms of the statute; and while he seems to the jury to deny the charge requested, he is in fact influenced by some motive that makes him afraid to do so. In the present case it was proved that the carriage in controversy was bought by Mrs. Spencer, and paid for by money, which her husband had allowed her as hire for her negroes. The plaintiffs, entertaining the opinion that she was entitled to no hire from her husband, and that the payment of it by him was voluntary and fraudulent as to creditors, requested the court to charge the jury, “ that if they believed from the evidence that the carriage was bought and paid for by money derived from her husband, the defendant in the execution, they should find in favor of the plaintiffs,” a plain proposition of law, pertinent to the case, and free of ambiguity. The court was expressly solicited to give or deny the charge as asked for, but refused to do either; as though it was a proposition that was neither true nor false. If the words interpolated by the court make any difference in the pertinent meaning of the charge, it is not apparent to the perceptive optics of an ordinary man. They seem indeed calculated for nothing but to show an appearance of denying the charge prayed by the plaintiffs, when in fact it was substantially granted. And if it had not been for the other charge denied the plaintiffs, and that granted the defendant, the jury might probably have been misled into the belief that the court had decided the law against the plaintiffs, though the decision was . really in their favor and left them at least a very doubtful ground of exception : and thus they would have been subjected to the identical wrongs against which the act referred to, was designed to protect them. The exception was taken to the manner of charging in the circuit court, that the decision of this tribunal might furnish a settled interpretation of the statutes on the subject.
    The decision of this court on the merits of the case, so far as regards the value in controversy, will be of little consequence in comparison with the pervading importance of the questions of law which it will settle. The character of a people is faithfully reflected by their laws. The station that was occupied by the husband, in the domestic relations of our ancestors, is delineated in the pages of the English Common Law, in terms that cannot be misunderstood. Whether the picture of these relations shall be reversed; whether the wife, divested of her characteristic ■and native modesty, shall hereafter constitute the lord of the manor, denying to her husband the performance of any function except those of a steward of the household, and overseer of the estate : or whether the relation of man and wife shall sub-serve no other end than that of embezzling his property and his earnings against the just demands of creditors, are questions that depend on the interpretation that may prevail of the act of 1839, “for the protection and preservation of the rights and property •of married women.” Any doubt that can arise of the intention of the legislature, as expressed in the passage of this law, can be attributed only to an impression, that they were ignorant of both the technical and the common meaning of the words they used. Let it be for a moment admitted that there was in the senate of the legislature, where the law had its origin, a single member who had capacity to select words appropriate to the expression of his meaning, and every doubt, difficulty, or embarrassment must immediately yield to a satisfactory and consistent interpretation of the law. There will be no reason for surprise that the provisions of the law as to the manner in which a married woman may hold property apart and independent of her husband, should be confined exclusively to property in slaves; because it would be plainly evident that the legislature did not intend to vest a married' woman with a legal capacity to hold in this way, any other property than slaves.
    “ To know what the common law was before the making of a statute, whereby it may be known Whether the statute be introductory of a new law, or only affirmatory of the common law, is the very lock and key to set open the windows of a statute.” 6 Bac. Abr. title Statute I. 4. And “the best construction of a statute is to construe it as near to the rule and reason of the common law as may be.” Id. If the terms of the statute are reasonably susceptible of a construction which will leave its provisions conformable to the common law, it will be taken only as affirmatory of the common law; and if the construction necessarily show a change of the common law, it shall be construed strictly. 6 Bacon, Statute I. 4. According to the foregoing rules, the first section of the woman’s law, or sec. 22 of eh. 31 in the compilation of Howard & Hutchinson, is merely affirmatory of the common law; for at common law a married woman may become possessed of any species of property by bequest, demise, gift, purchase, or distribution in her own name and as of her own property; and that is all that she is enabled to do by the first section of the statute. Yet there is another principle of the common law, which is neither provided against nor repealed, by which both the possession and the property of the wife, though possessed in her own name and as of her own property, are merged, and become the property and possession of the husband. 2 Bla. Com. 433. And this principle of the common law can be neither obviated or repealed by the import of the words, “ in her own name and as of her own property.” Those words not being incompatible with the rights of the husband would be insufficient in a conveyance at common law to create a separate estate. And as such a construction of the statute would render it restrictive of the common law, and therefore to be strictly construed, 6 Bacon, *384, a fortiori would they be insufficient in a statute to carry the attainment of su'ch a settlement. The terras used in the first section indicating the various modes by which a woman may become possessed of property, are strictly technical and should therefore be technically construed. 6 Bac. Ab.; especially as it is evident, from the language of the ensuing sections, that the legislature was aware of the terms that were both requisite and proper to confer on a married woman a capacity “ to have, hold, and possess a separate property exempt,” &c. The personal unity of husband and wife, and the consequent investiture of the husband with the personal possessions of the wife, whether acquired before or after coverture, are marital rights, that have existed too long and are too deeply implanted in our system to be abrogated by unnecessary implication arising from the construction of words which are by no means incompatible with the dominion and ownership of the husband.
    . Omitting for the present any remarks on the proviso at the end of the first section, which is of itself conclusive against the rights of Mrs. Spencer, I will undertake to show what was the intention of the legislature in passing this law. While it is abundantly expedient that the property of the husband, on the faith of which he acquires credit, should be always distinguishable from the interests of the wife, that are exempt from a liability for his debts, there is no reason why she may notbe secured in the possession of a specific-property, which is permanent and known and incapable of change except by natural increase or death. The interest of many families requires, and public policy does not forbid, that a married woman should be allowed by law to hold a property in slaves apart and independent of her husband. The indispensable necessity of such a provision has long since forced our courts of equity to mitigate, the rigid rules of common law by the adoption of a system which to some extent recognizes a separate existence of the wife. To avoid the necessity of interposing the name of a stranger in the concerns of a private family, the legislature judged it expedient to relax the rules of common law so far as to confer on a married woman a capacity in law, not only to acquire, but also to hold a separate property in slaves. In doing this, however, they observed a most laudable precaution against extending the innovation too far. To protect the rights of the husband, who is still charged with the support of the family, and the rights of creditors from whom this support may be purchased ; to prevent the formation of a fámily nucleus that might gradually and imperceptibly conglobe the entire property of the husband in despite of his creditors ; to maintain, in short, some traces of the portraiture of an English family having a man at the head, seemingly engaged in the provinces of husband and father, the capacity of the wife to hold a separate property, is limited by the statute to her property in such slaves as she may have at the time of her marriage, or may acquire afterward, together with their natural Increase. Though the statute in affirmation of the common law, enables her to acquire any species of property, as she might always have done, yet when it goes on to protect such property from the rights of the husband, and from a liability for his debts, it limits the protection to her property in slaves and their natural increase. The legislature could easily, and would certainly have extended the protection to other property than slaves if they had designed to do so. And the fact that the law especially designates the property which may be held as a separate estate, precludes the extension of that character to any species of property which is not designated. Ewpressio unius exclusio atterius. Lord Bacon, in vol. 6, page 384, says, “ In all doubtful matters, and where the expression is in general terms, statutes are to receive such a construction as may be agreeable to the rules of the common law in cases of that nature; for statutes are not presumed to make any alterations in the common law, further or otherwise than the act expressly declares; therefore in all general matters the law presumes the act did not intend to make any alteration: for if the parliament had had that design they would have expressed it in the act.”
    The legislature devotes two distinct sections of’the statute, to the designation of the property that a married woman “may have, hold, and possess, as her separate property, exempt from any liability for the debts or contracts of her husband ; ” and in each of those sections, designates only her property in slaves, and their natural increase. By which of the rules, quoted from Lord Bacon, for the construction of statutes, the phrase “ slaves, and their natural increase,” can be interpreted to mean a pleasure carriage, I acknowledge myself unable to discover. But further; if the first section of the law confers on a married woman a capacity not only to acquire, but also to hold, any species of property, as a separate estate; or if the import of the terms of the first section is available to that extent, where the necessity of the second and third sections, which are so clearly expressive of the intention of the legislature, in regard to slaves, and their natural increase 1 And why would the legislature so often and emphatically designate the natural increase of slaves, as being property that might be holden, as a separate estate, if it were intended that the artificial productions of their labor should be also taken in that character ?
    Every inference derived from the statute, and the common law rules of construction, show that the legislature intended to vest a feme covert with a legal capacity to hold a separate property in slaves, and their natural increase, assimilating her interest in slaves, to her interest in real estate, but leaving the produce of their labor, and any other personal property she might acquire, to the rights of the husband, as at common law. But these arguments, derived from legal intendment and inference, are offered merely as superinductions to the unequivocal and express enactment of the fourth section of the statute, where, in ternis as plain as can be furnished by the English language, it is ordained, “ That the control and management of all such slaves, the direction of their labor, and the receipt of the profits thereof, shall remain to the husband, agreeably to the laws heretofore in force.” A real estate belongs to the wife at common law, notwithstanding her coverture ; and the husband is entitled to the rents and profits thereof. 2 Blac. Com. 433. By the statute, a property in slaves is, in like manner, secured to the wife, leaving the issues and profits of their labor to the husband, as at common law. Such, unquestionably, was. the intention of the legislature, and it could not be expressed in plainer terms than those that are used in the statute. It proceeds to provide for the wife a remedy for the recovery of her slaves, in case they be taken from her; to designate the course of inheritance, and to point out the mode in which they may be conveyed, but is silent in these respects, in regard to any other species of property. There is no provision for the recovery of any other species of property in her name, or for the transmission of it, by inheritance or conveyance, from the wife, for the plain and sufficient reason, that it does not belong to her, but to the husband.
    It is proved, by the discovery of Mrs. Spencer, that the carriage in controversy was purchased by her, with money given her by her husband, as hire for her negroes. By law, the husband was entitled to the labor of the negroes, and the payment of hire to his wife was voluntary and fraudulent, as to creditors ; and the carriage having been purchased with his money, is subject to executions against him, and, indeed, would have been so, if she had acquired it in any other manner, since it is not of that species of property which may,,by the statute, be held by a wife as separate estate.
    But though this court, with the honorable judge of the court below, should entertain the opinion, that the legislature has changed the common law, so far as to enable a feme covert to hold any species of personal property, as a separate estate, and that the fourth section of the statute should be construed to mean precisely the reverse of what it enacts, yet the decision must be established against the claim of the wife, in this case) by the proviso at the end of the first section of the law. In any interpretation of the statute — unless, indeed, it must be interpreted, throughout, to mean the reverse of what it says — a feme covert cannot derive a separate property from her husband, either directly or indirectly. Mrs. Spencer received from her husband, the defendant in the execution, the money with which she bought the carriage, a transaction for which she had no capacity, at common law, and for which none is given by the statute. It therefore continued to be the money of Mr. Spencer, and, as such, subject to his debts ; and the same liability attaches to, any property, into which it may be converted.
    I have been thus elaborate, in regard to the interpretation of the statute, because the counsel of' the claimant rested her pretensions, in the circuit court, exclusively on its provisions. If he should now abandon the statute, her claim must be decided by the common law, as administered in courts of common law jurisdiction. It is not pretended that the slaves were conveyed "by her father to a trustee, for her use : and if such had been the case, the legal title would have been vested in the trustee, and in the circuit court, he alone could maintain a claim against the execution of the plaintiffs. It. is not shown, that the gift to her was made in such terms, as indicate an intention to create a separate estate; and if it were, she has not taken such measures as would be necessary to charge the title of the husband with a trust, or protect the property against his creditors. Her claim was submitted to a court of common.l'aw jurisdiction, and must be decided by the rules of the common law, which merges in the husband her rights, her capacities, and even her legal existence.
    
      George S. ~Yerger, on the same side.
    The bank obtained a judgment against H. N. Spencer, and levied the execution on a carriage, which was claimed by his wife. The proof in the cause showed, that sometime in 1840, the father of Mrs. Spencer gave her several slaves, and put her husband in possession. The evidence is derived from her answer to a bill of discovery, and is in these words : “ That in 1840, her father conveyed to her, in her own right, ten negroes, eight of whom are grown hands, and put them in her possession. That her husband worked said negroes, and received the benefit of their services, and the money paid by her for the carriage, was money allowed her by her husband for the hire and service of said negroes,” &c.
    The court was asked by the plaintiff in execution to instruct the jury, that if they believe from the evidence that the carriage in controversy was bought and paid for by money derived from the husband, they should find for plaintiff in execution. The court refused to give the instruction as asked, but said, if the money was derived from the husband, and it was his own money, &c.
    
      The court was then requested to charge the jury, that if they believed from the evidence that the carriage was bought by the claimant, and paid for by money allowed her by her husband, as hire for negroes, given or conveyed to her after their marriage, they should find for the plaintiff in execution. This charge was also refused, and the converse of it given.
    1. By the common law, the gift or conveyance to a married woman of personal property, vested in her husband ; and the slaves, in this instance, would have been subjected to the execution. The question then is, how far the act of 1839, Howard & Hutchinson, 332, has altered the common law.
    The statute is plain and unambiguous. It vests the fee simple, or absolute property, in the wife; but, in regard to the labor, or hire of the slaves, it expressly gives that to the husband, during the marriage. He has, therefore, the use of the property during the marriage— his wife the ultimate property. The hire of the slaves, their labor, belongs to him ; the money received is his,money, by the express wording of the statute. This money, therefore, being his absolutely, he gave it his wife to purchase the carriage, under the erroneous impression, that it belonged to her. The carriage, having been purchased with his money, is his property, so far as his creditors are concerned, and was subject to the execution.
    If the words of the statute had been employed in a deed, it would have vested the slaves in him during marriage, and after its termination, in his wife. The gift of the use of a thing is the gift of the thing itself. A loan of a thing for life, or the use of a thing for life, or marriage, is a property in it during the period. Whether a life or other uncertain interest in a slave, is subject to execution at law, will depend on whether it is a legal or equitable interest. If legal, it will, if equitable, must go into equity. But, in either event, where the property is received by the husband, it is his; and if it, or the produce of their labor or calling can be got hold of, it unquestionably can be levied on.
    In regard to land, he has the use of it by common law, during his life, or marriage; it is an interest which can be sold. The rent, or produce, is clearly his.
    
      Where property is conveyed to secure a debt, but the party is to have use of it for a given period, it is subject to execution. See Baily v. Burton, 8 Wend. 339.
    That the gift or loan of property for life, or the use of it for life, vests the legal interest for life. SeeDreivv. Pitt, Fearne on Remainders, 464. 2 Murphy, 137. 1 Hill’s Ch. Rep. 37.
    ■ The case shows, the money that purchased the carriage was the husband’s money. That money is subject to an execution is now settled.
    
      U. T. Ellett, for the defendants.
    Issue was joined in the court below, upon the allegation of the plaintiffs, that the carriage in controversy was the property of H. N. Spencer, and liable to execution for his debts. The burden of proof was upon the plaintiffs, (How. &o Hutch. 635, sec. 20,) and upon the trikl the jury found against them. No application was made for a new trial, and the only question is, whether the court committed any error to the^prejudice of the plaintiffs, in the instructions that were given to tfie jury.
    1. The first point made by the plaintiffs’ counsel, is, that the judge refused to give his first instruction in the precise language as written down, but gave it with an amendment.
    In this respect the judge was right. The -instruction, as asked, was not law, for if the money with which the carriage was purchased, was the legitimate proceeds of a separate estate, legally settled upon Mrs. Spencer, and therefore her own money, and derived to her from'her husband as her trustee, then the jury ought not to have found for the plaintiffs in execution.
    The proposition was stated so broadly by the counsel, that, as stated, it was not law, without the very qualification given by the court, to wit, “ being his own money.”
    The instruction, as asked, was therefore properly refused; ¡and the question remains, whether the judge had the right to give the instruction with this qualification, without the plaintiffs’ consent.
    We have two statutes on this subject. See How. & Hutch. Dig. 482, sec. 9, and 493, sec. 53.
    
      They are very similar, and provide that no judge “shall sum up or comment on the evidence,” nor eharge the jury on points or principles of law applicable to the case, unless the parties, or their counsel, differ in opinion as to the same, or unless one of the parties or counsel shall ask the charge of said judge to be given upon some point in controversy, or pertinent to the issue, which shall be distinctly specified in writing by the party asking the same.”
    The act on’ page 493, does not require the point to be specified in writing.
    These provisions are very intelligible, and they furnish counsel no warrant for substituting, in the mouth of the court, their own subtle, elaborated and wiredrawn sophistries, in the place of the simple and manly language of the law. The “ point in controversy” must be “distinctly specified in writing,” and then the judge instructs the jury as to the law on that point. He is not required, either by the letter or the spirit of the Jaw, to adopt the finespun propositions of artful and ingenious counsel. The object of a charge is to inform the jury what the law is. And this object would be wholly defeated, if the judge were forbidden to state the principle, with all the qualifications and restrictions that are essential to a correct understanding of it. The contest in that case would be who could give a falsehood the greatest appearance of truth, and the nimblest wit would always gain his cause.
    This point seems, however, to be closed'by adjudication, in this court. In Corprew, Adm. v. Canavan., 4 How. 376, the court below refused the charges asked for, and stated the law in general terms. This court approved the practice, and remarked, “ The law, restraining judges from charging juries, unless, &c., must receive a liberal and reasonable construction.”
    See also Doe, ex dem. Martin v. King, 3 How. 145, and other cases, and particularly Perry v. Clarke, 5 How. 499 to 501.
    2. The merits of the cause remain to be investigated.
    The plaintiff in the court below filed a bill against Mrs. Spencer for a discovery, alleging that she had sold butter and eggs, and had bought this carriage with the proceeds, which said butter and eggs belonged to her husband. The bill was answered by Mrs. Spencer, and the bill and answer were read in evidence by the plaintiff on the trial of the cause.
    By so doing, they made the whole answer evidence for the claimant, good, prima facie, but liable to be rebutted. 1 Starkie on Ev. 286, 287. 11 Johns. 260. 1 Caines, 157.
    No attempt was made to rebut any portion of the answer, and, indeed, all the instructions asked for by the plaintiffs, are predicated upon the assumption that the facts stated in the answer are true.
    The answer states, that in 1840, Mrs. Spencer’s father conveyed to her, in her own right, ten negroes, and that the carriage was bought by her with the proceeds of their labor.
    This language is sufficient to create a separate estate in Mrs. Spencer, irrespective of the provisions of our statute of 1839, for the preservation of the rights of married women. Clancy on Rights, &c., 262-270, chap. 2, pt. 3.
    The negroes conveyed to Mrs. Spencer are, therefore, not within the “ woman’s law,” and her rights do not involve a construction of that act, but depend upon the general doctrines of the law, in relation to “separate estate.”
    These doctrines, so far as applicable to the present case, are few and well defined. If a limitation be made to the wife, for her separate use, without the nomination of a trustee, the husband is, by operation of latv, constituted the trustee, and, as such, is entitled to the possession of the property, and equity will force him to comply with the intentions of the donor. 2 Howard, 751. Clancy, 256, 257.
    Savings by the wife, out of her separate estate, are always hers, and free from the dominion of her husband; and not only the produce of her separate estate will be hers, but if she purchase lands or houses with her savings, the court will follow the purchase, and secure it, against the husband, for her benefit. Clancy, 271, 272, et seq. 4 Mason, C. C. R. 443.
    If, then, the carriage in question was purchased with the savings of Mrs. Spencer, out of the produce of her separate estate, limited to her separate use, it was not subject to the plaintiffs’ execution against her husband ; and this is precisely the case disclosed by the answer to the bill of discovery.
    
      The second instruction asked for by plaintiffs, to wit, “ that if the carriage was paid for by money allowed Mrs. Spencer, by her husband, as hire for negroes, given or conveyed to her, after their marriage, the jury must find for plaintiffs,” was not law, in the broad terms in which the proposition was stated, and was therefore properly refused. For if the money was allowed to claimant, as hire for negroes legally conveyed to her, in her own right, and limited to her separate use, after her marriage, it was allowing her no more than the law would compel Mr. Spencer to allow her; and property, purchased with money so allowed her, would not be subject to her husband’s debts.
    Indeed, both the first and second instructions of plaintiffs are of the ingenious character already spoken of, and are calculated to entrap the court and mislead the jury. Wearing the garb of truth, still, as legal propositions, they are not necessarily true. They may be true, or they may be false. They attempt to convert general rules into universal rules, and to exclude all exceptions. The facts supposed in the instructions might all be true, and yet the conclusions of law might not follow. They were, therefore, properly overruled, and that without reference to the particular facts of this case.
    The only instruction asked by the claimant was, that if the jury should believe that the carriage in question was purchased by Mrs. Spencer,, with (the proceeds of) the labor of negro slaves conveyed to her, as her separate property, by her father, in the year 1840, they must, by law, find the issue for the claimant. ,
    In view of the principles already laid down, and the authorities cited, it will be difficult to show, that this instruction does not state the case truly.
    If these views are sound, then all the errors assigned are disposed of, without discussing the questions that have received so much of the attention, and called out so much of the zeal and eloquence of the plaintiff’s counsel.
    But suppose the negroes conveyed to Mrs. Spencer, by her father, are not considered as limited to her separate use, by the act that conveyed them to her, but depend upon the provisions of the “ act for the protection and preservation of the rights of married women,” the question then arises, as to her rights under that law.
    It can hardly be necessary, before an enlightened court, to defend the policy of this statute. Its objects are wise and salutary, and no such fearful revolution in the domestic relations, as the vivid imagination of the counsel has depicted, is at all to be apprehended from its operation.
    The question, as to whether the first section is a mere declaration of the common law, is not now involved; but if it were necessary to discuss it, it would not be difficult to show, as well from the language of the section itself, as from its legislative history before it became a law, that it was intended to have a very different effect.
    The second section provides that when any woman possessed of slaves, shall marry, &c., she shall have, hold, and possess the same, as her separate property, exempt from any liability, for the debts or contracts of her husband. How. & Hutch. Dig. 332, sec. 23.
    The third section enacts that when any woman, during cov-erture, shall become entitled to, or possessed of slaves, by conveyance, gift, inheritance, distribution, or otherwise, such slaves, and their natural increase, shall enure and belong to the wife, in the same manner as is above provided, as to slaves which she may possess at the time of marriage. Slaves to which a woman becomes entitled during coverture, are then, by force of this act, separate property.
    The relative rights and interests of husband and wife, in respect to her separate property, are determined by the settled rules of law, already referred to, and to them we must look, to decide any question that arises concerning it.
    Property conveyed to the wife generally, without any limitation, since the passage of this act, becomes her separate property, in the same manner that it would have done at common law, if expressly limited to her separate use, by the conveyance. The term “ separate property,” as applied to a married woman, has a known and established meaning in law, and is subject to the incidents which the law has attached to it. Whenever the term is used by the legislature, the courts will presume that they use it in its settled and technical sense.
    If, therefore, upon a conveyance of property to a married woman, expressly for her separate use, the husband becomes, as we have seen, trustee for her, and is bound to account to her for the produce of the property ; and if property purchased with that produce belongs to her, then it follows that, since this statute, he occupies the same position in relation to slaves conveyed to her generally, while covert.
    But the 4th section (25) says, that “ the control and management of such slaves, the direction of their labor, and the receipt of the productions thereof, shall remain to the husband, agreeably to the laws in force,” and this is relied on, as altering the rule, and as giving the “ productions ” to the husband.
    But not so. Agreeably to what “ laws heretofore in force,” are they to “remain to the husband?” The legislature is speaking of the wife’s separate property, where there is no trustee, and is providing who shall have the management and control of it during her coverture; and they give that control to the husband, “ agreeably to the laws heretofore in force.
    By the laws then in force, the husband was trustee, and, as such, entitled to the management, &c., the direction of the labor, and receipt of the productions, &c., of his wife’s separate estate, subject to an account therefor ; and all this, in pursuance of this fourth section, “ remains to him,” agreeably to those laws. By the laws theretofore in force, he was merely trustee of his wife’s separate estate, and such he continues to be under the statute.
    Any other interpretation would violate the very terms of the statute, would apply to separate property rules that are only applicable to property not so limited, and would wholly defeat the intention and beneficial operation of the law.
    That intention doubtless was to secure to the wife a support from her own property, during her life, free from the vicissitudes of her husband’s affairs, and not subject to be disturbed by his vices, or his misfortunes. The construction contended for on the other side, instead of protecting and preserving the rights, &c. of married women, would wholly exclude them from the beneficial enjoyment of a particle of their property. If the use belongs to the husband, it may be sold from him on execution ; and upon the wife’s death, the property descends, by the act, to the children of that marriage, and if there be none, then to the husband and his heirs. So that although it is the wife’s separate estate, to be held and possessed by her as such, still she can have no use or benefit of it during life, and cannot dispose of it at her death. And although the property is “ exempt from liability for the debts or contracts of her husband,” still the use of it may be sold from her for his debts during all the time when that use could be beneficial to her.
    The last point ipade by the plaintiff’s counsel, under the proviso to the first section of the act, is unworthy the dignity of so grave a discussion. The proviso evidently applies only to gifts, purchases, &c. from the husband, after coverture.
    There can be no reason why the husband should be required to hire out the property to others, rather than use it himself, and account for the proceeds. It is the same thing.' Indeed if he were to neglect to discharge his duty in this respect, by employing the negroes so as to realize a profit, equity would compel him to account for what he might and ought to have made.
   Mr. Justice ThacheR

delivered the opinion of the court.

This case comes up by appeal from the circuit court of Claiborne county.

The bank recovered a judgment against H. W. Barnes and H. N.-Spencer, and execution was levied upon “ a pleasure carriage,” as the property of Spencer. Sarah A. Spencer, the wife of defendant Spencer, claimed the carriage as her own property, whereupon a trial of the right of property was had, which resulted in a verdict for the claimant. The bill of exceptions is to the ruling of the court upon the trial, and purports to include all the evidence adduced in either behalf upon the trial.

The point upon which the case turns, seems to be the construction to be given to a part of the answer of the claimant extracted by means of a bill of discovery. She replied that the carriage levied upon was purchased by her with money allowed her by her husband, for the hire and services of ten slaves, conveyed to her “in her own right,” by her father, in 1840.

The third charge of the court below, which alone we deem it necessary to notice, was as follows, “that if the jury believed that Mrs. Spencer purchased the carriage in question with the labor of negro slaves, conveyed to her as her separate property, by her father in the year 1840, they must find by law for the claimant.”

The propriety of the foregoing charge involves two inquiries. First, whether the language of the claimant’s answer, by which we must give a construction to the conveyance under which she held, conveyed to the claimant a property in the slaves to her separate use; and, secondly, whether the statute of 1839, enacted for the protection of the property oí femes covert, is limited in its effect to the specific property, mentioned in a conveyance as belonging to the wife, and its increase, or extends to the profits growing out of it.

A general principle that governs in the interpretation of conveyances of the kind first spoken of, is, that there must vbe a clear and unequivocal intention evinced in the instrument by the grantor, that the wife shall possess the exclusive interest in the property conveyed. It does not appear, from the elementary works or leading authorities, that any set form of words is necessary to create such an estate, but it must clearly be manifest, either that the husband is excluded, or that the wife’s control is independent of the husband’s power. The best received technical phraseology is the employment of the words “ sole and separate use.” Among other terms used in cases decided to carry with them such an estate and collected in Clancy’s Husband and Wife, are, “to be at her disposal,” “to enjoy and receive the issues and profits,” “given for the livelihood,” '“the wife’s receipt to be a discharge, notwithstanding her coverture,” “her receipt in writing to be a discharge,” “to be delivered up to her when she shall demand or require the same,” &c. These expressions either pointedly exclude the husband, or so plainly limit to the wife, the right, title, interest, enjoyment or control of the property conveyed, as to distinctly and positively preclude the common law authority or investiture of property in the husband, as to leave no doubt of the design of the grantor or donor. The same work has enumerated a series of cases where the language has been interpreted not to convey property to the separate use of a feme covert. For. example, “her own use and benefit,” “ to her use;” in one case, there was a bequest toa married woman, “ for her sole and separate use,” and subsequently in the same will, a further amount “ for her own use and benefit.,” which latter was held not to invest a separate estate in the wife. At common law, the wife’s rights vest in the husband upon marriage. He gains an estate of freehold in the inheritance of his wife, in her right, during her life. Her rights to her other property are dormant during marriage, and vested in her husband. The words “in her own right,” we are constrained to' think, at common law, would have been no stronger in effect than the phrase “ to her own use and benefit,” and would have operated as a conveyance of the specific property in the deed to her husband, had it not been for the intervention of the statute. There is a want of explicit expression of intention in the language, which will not permit the grant in this case to be viewed as an exception to the general rule of construction, to which we have directed ,our attention.

The second point of consideration is, the effect and force of such a conveyance under the statute. And here it is worthy of note, that the phraseology of the first section of the statute and of the claimant’s answer are unanimous in meaning. It allows a married woman to become seized of property, real or personal, in her own name and as of her own property.” In speaking of her property in slaves, however, it adds, that she shall possess the same, “as -her separate property.” Were not the intention of the legislature clearly manifest, from thé act itself, to protect in the wife the property, real and personal, with which she may become seized, such language in a common law conveyance would have operated as a conveyance to the husband. This is still further demonstrated by the circumstance that her permission to hold slaves, “ as her separate property,” is qualified and encumbered with a condition by the statute. H. H. 332, sec. 25. The legislature was well aware of the legal import of the language it used. As a separate property in the wife, the profits of the labor of such slaves would have belonged to her as well as the specific slaves. The condition is, that “ the control and management of all such slaves, the direction of their labor, and the receipt of the productions thereof, shall remain to the husband, agreeably to the laws heretofore in force.” All the distinctions which existed in conveyances of this kind at common law are carefully observed and regarded in the statute.

From the whole tenor of the act, it is plainly deducible that it was designed to guard the specific property from any liability for the debts and contracts of the husband. It reaches no further. The act does not relieve the husband from his common law obligation for the support of the wife and family, nor place that charge upon the wife in consideration of the aberration from the common law in respect to the investiture of the husband with the property of the wife, neither does it make any provision for the family out of such proceeds in the event of the decease of the husband. The products of such property follow the common law rule and belong to the husband. We are compelled, then, to the conclusion that the conveyance in this case was not to the separate use of the wife, except under the conditions of the statute, and that under its provisions, the productions of the slaves in question were the property, and liable for the debts and contracts of the husband.

The court below, therefore, in charging the jury as above set forth, charged in a manner not warranted by the evidence and the law bearing upou it, and consequently erroneously. The effect of such a charge might have seriously involved the rights of the plaintiff in the execution.

The judgment must be reversed, and a new trial awarded.  