the jury, may remove the proceedings into the District Court by certiorari, and the sixteenth section directs that in such case, the court shall give judgment according to the very right of the case. Here then the party may have the writ and remove the proceedings, although the verdict of the jury may be the only thing in the case that aggrieves him, and to say that the court, after the cause is removed, cannot look into the facts, is to make this portion of the statute a dead letter. Opinion of the court, by Judge MILLER: Charles Bracken commenced proceedings before a justice of the peace of Iowa county against the defendants, under the act to prevent forcible entries and detainers. The complainat charged that the defendants made an unlawful and forcible entry into his lands and tenements and with strong hand detained the same. The jury found for the defendants, and the case was removed by the plaintiff by certiorari, to the District Court of Iowa county, where the judgment before the justice was affirmed. The plaintiff thereupon sued out this writ of error. The first error assigned is; that the justice refused to have the jurors sworn to answer questions respecting their capacity to serve as jurors, and whether they had formed or expressed an opinion of the merits of the cause. Section 26 of the act concerning grand and petit jurors, gives authority to the District Courts to swear the jurors, but not to justices of the peace. There is no such authority given by law to justices of the peace. Without authority by law the court or justice has no right to require jurors to be sworn to answer questions, whether they have declared opinions on the case. It would be the duty of the justice to admonish them, that if they did not feel indifferent, or had pre-judged the cause or declared their opinions, they should disclose it. The Commonwealth vs. Dennie, 4 Yeats, 267. Without an act on the subject a juror may be sworn, but there is no obligation to do so; McCorcle vs. Binns, 5 Binney, 340. In this case there is not even an allegation that any one of the jurors had formed or expressed an opinion, and the justice not being obliged by law to swear a juror on the subject, there is no error in the refusal of the justice to do so. But that there should be a law requiring it in cases before justices of the peace, there is no doubt. The second error assigned, is as follows: The lease to An drew Rumfrey was only a parol lease which only created a tenantcy at will, and might terminate at the option of either party; and Rumfrey had not such an interest as could be transferred. This relates to testimony given on the part of the defendants, and should not have been allowed before the jury; and will not be considered here. If the cause had turned on this evidence, the judgment before the justice should be reversed. The defendants are proceeded against for forcible entry and detainer.— They have no right to justify the force by showing title in themselves. It is in the nature of a criminal proceeding against them, and they cannot justify the forcible entry and detainer on the strength of their title. In a proscution of this nature, the title to the premises, as between the defendants and relator or complainant, cannot be inquired into, though the latter is bound to set forth his title so far as to show himself within the provisions of the act. That title may be controverted by the defendant, but he cannot set up his own as a substantive matter of defence, because the question of title cannot be tried in this action; The People vs. Godfrey, 1 Hill, 240. In a proceeding of this kind, the complainant must set forth a seisin or possession within the perview of the act, or whether his estate be a freehold or term of years; and on the traverse, the allegations as to his estate must be proved by him: But the defendant cannot justify the force by showing a title in himself: He may controvert the facts by which the complainant attempts to show title in himself; The People vs. Nelson, 13 John. 340. The same doctrine will be found in the cases of The People vs. Ricket, 8 Cowen, 226; The People vs. Leonard, 11 John. 504. And if the title of the defendant, or his right of possession is paramount, he must resort to an appropriate remedy to maintain his rights. The third error assigned is as follows: "It having been proven that the plaintiff was in the peaceable possession of the land, he could not have been ousted only by due course of law." By the sixteenth section of the act to prevent forcible entries and detainers, the District Court to which any certiorari is returned, shall proceed to hear and determine the same, as the very right of the case shall appear, without regarding technicalities or imperfections in the return. Evidently, from this section and other provisions in said statute respecting the removal of causes by certiorari to the District Court, that court has the power to de cide upon errors of fact as well as of law. This court is a court for the correction of errors in questions of law, and generally, should not inquire into the correctness of the decisions of the District Courts in questions of fact. As the court is not full, and this case does not require it, we will not in this case, establish a rule on this subject, although referred in the argument to a case in point; Columbia Turnpike Company vs. Hayward, 10 Wendell, 422. In this case the complainant did not make out by proof, a forcible entry and detainer against the defendants. Judgment affirmed with costs. MOSES M. STRONG and BURNETT, for plaintiff in error. JOSEPH ROLETTE, appellant, vs. JANE F. ROLETTE and BERNARD W. BRISBOIS, appellees,) Appeal from Crawford county. A DEED entered into between husband and wife of one part and a trustee of the other, executed after a separation between the husband and wife for the purpose of securing to the wife a separate maintenance, is a valid contract, and cannot be rescinded in chancery at the suit of the husband on the ground of its being against the policy of the law. On the 22d September, 1834, Joseph Rolette, and Jane F. his wife, having been for some time living separately and apart from each other, entered into an indenture with Bernard W. Brisbois, a trustee mutually chosen, by which, among other things, Joseph Rolette covenanted to the trustee to furnish and provide a separate maintenance for his wife, as specified in said deed. After some time the husband refused to furnish the support and maintenance for his wife according to the terms of the deed, and Brisbois, the trustee, cammenced an action of covenant to recover damages for the refusal. Pending the action, on the 10th March, 1840, another indenture was entered into between the said Ro lette and wife of the one part and the said Brisbois as a trustee of the other, which recited: "that whereas circumstances have, for several years last past, prevented the said Joseph Rolette and Jane F. Rolette his wife from living together in the relations of husband and wife; and whereas the said Jane still chooses to live separately and apart from her said husband, and the said parties have agreed that she shall do so;" and then provided, that in consideration of the obligation of the said Joseph to support his said wife suitably to her condition in life, and in consideration of five dollars to him paid, he, the said Joseph, granted to the said Brisbois in trust for the sole and separate use of the wife, an annuity of the yearly sum of eight hundred dollars payable quarterly for the life of the wife. By subsequent provisions of the deed, the action of covenant was to be dismissed, and all causes of action for which it was commenced were released, and the deed of the 22d September, 1834, was cancelled. The payment of the annuity, and the covenant of the latter deed, were secured by a bond to the trustee in the penalty of thirty thousand dollars, and a mortgage upon real estate at Prairie du Chien. Joseph Rolette filed a bill in chancery in the Crawford District Court, against his wife and the trustee, setting up the latter deed, bond, and mortgage, and also the deed that was cancelled; charging that the separation was of her will and not of his; that he was willing to support her at his own house, and that the said deed, bond, and mortgage were without any sufficient consideration, contrary to the whole policy of the law in relation to marriage, and against the interest, order, and happiness of society. The bill prayed that the said deed, bond, and mortgage should be surrendered up and cancelled. To this bill the defendant filed a general demurrer, and at the October term, 1842, the District Court decreed that the bill be dismissed with costs. From this decree the complainant appealed to this Court. EASTMAN, for appellant: Contracts for the separation of husband and wife, and for separate maintenance, founded on such separation, have undergone great scrutiny in the English and American courts of late years. The current of modern decisions is against the validity of all agreements of the kind. The case of Rogers vs. Rogers, 4 Paige's Chy. Rep, 516, de cided in New York in 1834, was where a contract for a separate maintenance had been entered into between the husband and wife with a trustee. In that case the Chancellor said: "It is impossible for a feme covert to make any valid agreement with her husband to live separately from him, in violation of the marriage contract, and the duties she owes to society, unless it be done under the sanction of a court of chancery, and then only when the conduct of the husband would entitle the wife to a decree for a separation. The law of the land does not sanction a voluntary agreement for a separation between husband and wife." The ecclesiastical courts in England have decided, that it is impossible for the parties in marriage lawfully to relieve each other from their reciprocal duties, which the relation of husband and wife impose upon them. Those courts consider it an illegal contract, exhibiting a dereliction of those mutual offices which the parties are not at liberty to desert; an assumption of a false character, contrary to the real status persona which they have contracted to observe and abide by. In Rogers vs. Rogers, the Chancellor referred to the case of Westmeath vs. Westmeath, 2 Haggard's Eccl. Rep. 238; and also to the case of Mortimer vs. Mortimer, id. 543. The case of Westmeath vs. Westmeath, was an application to the consistoral court for a restoration of conjugal rights. In December, 1817, in consequence of the brutal conduct of Lord Westmeath, a deed of separation was executed to a trustee, providing for a separate maintenance. They, however, continued to live together until 1818. In November, 1818, a new instrument of separation was executed, and £300 per annum settled upon the lady. This deed recites that disputes and difficulties had arisen between the parties, and " that they were on the point of living separate and apart, but by the mutual intervention of friends, she had consented to live and cohabit with him after the execution of the deeds." In June, 1819, the parties finally separated, and this bill was filed to enforce conjugal rights; and at the same time, Lord Westmeath filed his bill in the chancery court, to have these deeds delivered up to be cancelled. To the bill in the consistoral court, these deeds were pleaded in bar. That court decided that Lady W. should return to her husband; an appeal was taken, and in Hilaray term, 1827, the case was decided by Sir J. Nicoll. After the deeds of separation of 1818 were executed, no matrimonial cohabitation took place between |