
    *Jennings & als. v. Montague.
    October Term, 1845,
    Richmond.
    1. Divorce — Statute-Construction—Vested Rights of Third Parties The act of February 17th, 1827, Sup. Rev. Code, p. 222. entitled “an act to prescribe the method of proceeding in suits, and on petition for divorces,” which empowers the Chancery Court “to restore to the injured party, as far as practicable, the rights of property conferred by the marriage on the other,” does not authorize the Court to interfere with, or defeat the vested rights of creditors, or dona Jide alienees, or incum-brancers, which attached upon the property prior to the institution of such proceedings for divorce, and when the property was the absolute property of the husband.
    2, Same —Attachments—Absconding Husband — Cred^ itor Preferred. — An attachment against the effects of the husband as an absconding debtor, levied before the institution of a suit by the wife for a divorce, entitles the attaching creditor to be satisfied out of the attached effects, in preference to the claim of the wife.
    In December 1837, James Jennings, and Jennings & Hatcher sued out attachments against William Montague an absconding debtor, for debts due to these parties respectively, returnable to the County Court of Cumberland. These attachments were levied on ten slaves, the property of Mon* tague the absconding debtor; and the process so levied having been returned to the County Court, that Court gave judgments thereupon, for the attaching creditors, against Montague, and condemned the attached effects to satisfy the judgments. The judgments in favour of Jennings were-for 552 dollars, with interest, and 1576 dollars, with interest; and for Jennings & Hatcher for 426 dollars, with interest,. &c.
    *On the 21st of February 1838, after the attachments had been levied, but before the judgments had been rendered, thereon, Lucy Montague, the wife of William Montague, by her next friend, exhibited her bill in chancery in the Circuit Superior Court of Cumberland, against her' husband, and others, alleged to be his. debtors, charging, that she was married to Montague in August 1835, and had brought him, besides other property, ten slaves. That Montague had formed an adulterous connection with another woman, and had abandoned the plaintiff and left the country. And she prayed a decree of divorce a mensa et thoro, from her said husband ; and that the property she had brought to him on the marriage, especially these ten slaves, which remained unsold, might be secured to her. The proceeding was framed upon the provisions of the statute of 1826-7, ch. 23, Sup. Rev. Code, ch. 165, p. 222.
    While the bill for the divorce was pending, the judgments of the County Court in favour of the attaching creditors were rendered, condemning the attached effects to satisfy the same; and thereupon Mrs. Montague, by her next friend, exhibited her bill in the Circuit Superior Court of Cumberland, against these creditors, setting forth the facts stated in her bill for a* divorce; alleging that the slaves upon which the attachments were levied were slaves which were her own property before her marriage ; and insisting that notwithstanding the attachments, and the proceedings thereon, she had a right to have the slaves restored to her. She therefore prayed for an injunction to restrain the sale of the slaves under the attachments, and that they might be restored to her. The injunction was granted, and the sheriff of Cumberland was directed to take possession of the slaves and hire them out until the next term of the Court; which was accordingly done.
    Jennings & Hatcher demurred to the bill, but the demurrer was overruled ; and Jennings, and Jennings & *Hatcher then filed their answers, in which they claimed to be entitled to subject the slaves taken under their attachments to satisfy their judgments against Montague the husband; and denied the right set up by the plaintiff to have the slaves restored to her. ,
    That the slaves in controversv were the property of the plaintiff before marriage; and that the conduct of the husband Montague was such as it was represented in the bill, was fully made out by the proofs.
    
      In March 1839, both causes were heard together. In the first the Court pronounced a sentence of divorce a mensa et thoro of the plaintiff from her husband Montague. And in the case against the attaching creditors, the Court held that the slaves, on which-their attachments'had been levied, and which had been condemned to be sold to satisfy the judgments on those attachments against Montague, having been brought him by his wife on the marriage, were, notwithstanding the attachments levied and the judgments thereon, in a situation in which it was practicable to restore them to the wife; and that they should be restored. The Court therefore perpetuated the injunction which had been granted to the wife; and directed the sheriff to deliver the slaves to her, as her absolute property; and pay to her the hires he had received for them whilst they were in his possession. Prom this decree, the appellants obtained an appeal to this Court.
    Deigh, for the appellants.
    C. & G. N. Johnson, for the appellee.
    
      
      See monographic note on “Divorce'’ appended to Bailey v. Bailey, 21 Gratt. 43.
    
    
      
      The third section of the act says: “That in granting divorces a mensa et thoro, for causes which justify such divorces by the principles of the common law, the Court of Chancery shall have full power to decree perpetual separation and protection to the persons and property of the parties; to decree to either, out of the property of the other, such maintenance as may be proper; to restore to the injured party, as far as practicable, the rights of property conferred by the marriage on theother: and so to dispose of the custody and guardianship, and provide for the maintenance of the issue of the marriage, as under all the circumstances may seem right.”
    
   ALLEN, J.,

delivered the opinion of the Court.

The Court is of opinion, that as it appears the slaves-in the bill.and proceedings mentioned, passed into the hands of William Montague the husband of the female appellee, upon their intermarriage, the same, so far as it regards the rights of the husband’s creditors, whether *prior or subsequent to the marriage, and as to all bona fide alienees and incumbrancers, became the absolute property of the husband. That the appellants, by the levy of their attachments on said slaves, acquired a lien thereon for the satisfaction of their debts, which could not be defeated except in the manner prescribed by law, by any act of the debtor, or other person coming in under him. That the provision of the 3d section of the act passed February 17, 1827, entitled “an act to prescribe the method of proceeding in suits, and on petition for divorces,” which empowers the Chancery Court to restore to the injured party, as far as practicable, the rights of property conferred by the marriage on the other.” does not authorize the Court to interfere with, or defeat the vested rights of creditors or bona fide alienees or incumbrancers, which attached upon the property prior to the institution of such proceeding for divorce, and when the property was the absolute estate of the husband.

The Court is therefore of opinion, that the Circuit Superior Court, instead of perpetuating.-,'the injunction,- should have directed the "application of the hires of the slaves accrued during the pendency of the suit to the satisfaction of the claims of the attaching creditors; and if that fund proved insufficient, should either have dissolved the injunction and dismissed the bill, with costs as to the appellants; or if the interests of the female appellee required it, to have directed a sale of the slaves, or so many of them as would have been sufficient to pay the residue of the debts due the attaching creditors, including their costs in the defence of the chancery suit, and taken steps to secure to the female appel-lee the residue of said slaves, or the funds arising from the hires and sales thereof, as far as practicable, having a due regard to the rights of others.

The decree is therefore reversed with costs to the appellants, and the cause is remanded-to be finally proceeded in according to the principles of this decree.  