Klingenberger v. Klingenberger , 6 Serg. & Rawle 187 ( 1820 )

The opinion of the Court was delivered by

Tilghman C. J.

By the law prior to the act of 13th March, 1815, ill treatment of a wife, such as the libellant in this cause has set forth, was not cause of di vorce from the bond of marriage, but only from bed and board with an allowance of alimony. But by the act which I have mentioned, such treatment was made cause of divorce from the bond of marriage, but the Court had no power to decree alimony. This being found inconvenient, the act of 26th February, 1817, was passed, (being a supplement to the act of 13th. March, 1815,) by which it was enacted, that in case of cruel treatment, &c., “ it shall be lawful for the Court of Commpn Pleas, upon complaint, and due proof thereof, made, in the manner prescribed in the act to which this is a supplement, to grant the wife a divorce from bed and board, and also to allow her such alimony as her husband’s circumstances will admit of,” fkc. Now it appears by this record, that the appellant has been guilty of such treatment of his wife, as was sufficient cause for a divorce from bed and board, with an allowance of .alimony, and the only objection to the decree, is, that the-wife, by her petition prayed for a divorce, not from bed and board, but from the bond of marriage. But she petitioned also for alimony, so that the husband was not taken by surprise on that point, and it appears by the record, that the Court, before they pronounced their decree, heard testimony respecting the circumstances of the husband. The petition was informal, and prayed for things which were inconsistent, viz., a divorce from the bond of marriage, and alimonyj and perhaps alimony was, to the petitioner, the most important of the two. And we must suppose, that the wife is content with the decree, because she has not appealed. It is unnecessary to decide, and we do not decide, whether the act of 26th February, 1817, was an implied repeal of that part of act of 13th March, 1815, which made the treatment complained of in this case, cause of divorce from the bond of marriage. But it undoubtedly authorised the Court decree a divorce from bed and board, with alimony. Therefore it appears to us, that upon the facts found by the jury, the Court were justified, notwithstanding the informality of the petition, in decreeing, with the consent of the libellant, a divorce from bed and board, with alimony; and we are of opinion, that the decree should be affirmed.

Decree affirmed: