#### Graves v. Graves.

February, 1829.

Appeals* — Interlocutory Decree — Suspension—Statute. —Appeal from an interlocutory decree in chancery denied, because tbe party asking it might and more properly ought to apply to the chancellor, to suspen d the effect of the decree, under the act of 1827-8, c. 25, § 4.

Maria D. Graves exhibited her bill, in the superiour court of chancery of Fredericksburg, against Simeon Graves, her husband ; charging the husband with adultery, and other grievous misconduct towards and ill treatment of her ; and praying a divorce a mensa et thoro, that all the property he had acquired in her right by the marriage might be restored to her, that the care and education of the children of the marriage should be confided to her, and that alimony, and a suitable allowance for the children, should be decreed to her. The husband, in his answer, controverted the facts of misconduct imputed to him by the bill. And many depositions touching the facts in issue, were taken and filed by both parties.

The cause, coming on for hearing in May, 1828, the chancellor pro,noun ced an interlocutory decree, That the plaintiff should be divorced from the bed and board of the defendant, her husband ; perpetually separated from him ; and intirely discharged from his authority and control: that her person and property, as well that which should be allotted to her by the court, as that she might afterwards acquire, should be protected from the dominion or interference *of her husband: that the defendant should deliver to the plaintiff, all the slaves and their increase, which he had acquired by his marriage with her, and which were then in his possession, or under his control : that a commissioner of the court should take an account of the value of all the other estate, real and personal, possessed or owned by the defendant, and the annual value thereof, and of all the debts due and owing to or from him : that the defendant should submit to be examined by the commissioner, on oath, touching the said account: and that the commissioner should also inquire and report, what sum would be necessary for the maintenance and! education of the children of the marriage, and whether any of them were of a proper age to be bound apprentice. And the court also appointed Dayton Yancey guardian of the children ; and ordered, that the parties, or such of them as had the custody of the’ children, should surrender them to the said' guardian. But the effect of so much of the decree as directed the slaves aforesaid to be delivered up to the plaintiff, was suspended,, until some responsible person should enter into bond with sufficient surety, in the penalty of six thousand dollars, payable to the defendant, with condition to comply with the future order of the court in relation to the slaves.

This bond was accordingly executed and filed.

Patton presented a petition on behalf the defendant, praying an appeal from the decree, and complaining of errors, in the proceedings and decree, in fact and in law.

*

See monographic *note*on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 268.

BROOKE, President.

Without giving any opinion on the merits, the court denies the appeal, on the ground, that the case more aptly comes under the 4th section of the act of 1827-8, c. 25, (Sess. Acts, p. 20,) amending the laws in relation to the jurisdiction of the court of appeals : whereby it is provided, that no appeal shall be granted from any interlocutory decree of a superiour court of chancery, except by the court of appeals ; but that the courts of chaneery, or *the judges thereof in vacation, may suspend the execution of any interlocutory decree, requiring the payment of money, or changing the possession and title of property, provided the party, desirous of appealing, shall enter into bond with sufficient surety, in the manner now prescribed by law, with condition reciting the interlocutory decree and the intention of the party to take an appeal so soon as a final decree shall be made, and binding such party to pay all costs and damages, and the profits of the property recovered, in case the decree be affirmed, or the party fail to take or prosecute the appeal.

Appeal denied.