
    Smith against Smith.
    
      Saturday, May 31.
    When a proceeding wascommeneed under the act of 1785, to obtain a divorce from bed and board and for alimony, and pencU ing the suit, that act was repealed, and the repealing act provided, that cases pending should be finished under the repealing act, and by the repealing act, there was no divorce from bed and board, or alimony allowed, but a divorce a vinculo matrimonii was given for the same causes, held, that the Court might deoree a divoree a vinculo, but not a divorce from bed and board or almony.
    A decree that the party have alimony, perfect del cree, and sent Court to give deTree or sufferthe party iter petition.
    APPEAL.
    THIS was an appeal from the Court of Common Pleas of T 7 Lebanon county,
    Fisher, for the appellant.
    
      Godwin and Elder, for the appellee.
   Tilghman C. J.

The appellant, Ann Sybilla Smith, filed her bill against the appellee, Peter Smith, in the Common Pleas of Lebanon county, at May Term, 1814, praying for a divorce from bed and board, and alimony. At that time, the Court had power to decree a divorce from bed and board, and alimony, for cruel treatment by the husband, by virtue of the act of 19th September, 1785, sect. 10. But, pending the suit, án act was passed, 13th March, 1815, by by the 14th section of which the act of 19th September, 1785, was repealed. There was a proviso, however, that the repeal should not affect any cause then depending, but that the same should be finished and concluded, under and agreeably to the provisions of the said act of 13th March, 1815. Now, by the provisions of that act, there was no divorce from bed and board, or alimony, allowed; but a divorce a vinculo matrtmonn was viven, for the same causes which authorised a ,. „ 7, ,. . ,. , r divorce from bed and board, by the 10th section of the act or ^85 ; consequently the Court might have decreed a divorce a vinculo matrimonii, in the appellant’s case, but could nqt have decreed a divorce from bed and board, or alimony, But £hey decreed only, that that the appellant should not have alimony, which is an imperfect decree, and ought not to be considered as final. It has been suggested to us, that the Court below would have decreed a divorce a vinculo; but the appellant was unwilling to have such a decree. But of £^*s Par°l suggestion we can take no notice. I am, therefore, of opinion, that the record should be remitted to the Court below, in order that they may proceed to a final decree; and then they may either make a complete decree, or • suffer the appellant to withdraw her petition.

The act which was passed at the last session of the legis- , lature does not affect this case. It restores the power of divorcing from bed and board, and giving alimony, but has no retrospect.

Gibson J. concurred.

Duncan J.

The only difficulty arises from the proviso in -the 14th section of the act of 13th March, 1815, concerning divorces, u that the repeal of the said act shall not affect any “ cause or proceeding now pending or commenced, under the “ said acts, but the same shall be finished and concluded under “ and agreeably to the provisions of this act, nor shall be taken “ or construed to affect any proceedings under the poor laws.” The former acts, concerning alimony and divorce, were repealed by this section. There is some obscurity in this proviso — some apparent inconsistency; because it first provides, that the. repeal of the said acts shall not affect any cause or proceeding now pending, or commenced under the said acts. Had it here ended, the right of alimony, on such previous proceeding would have been secured; but it proceeds to regulate the manner in which it shall be finished and concluded, under and agreeably to the provisions of this act. Now, under the provisions of this act, the whole sentence is changed. Instead of divorce from bed and board, it is a vinculo, in which there is no alimony. There is no alternative — no discretion in the Court, to make either the one decree or the other; but the future proceeding is to be finished and concluded, agreeably to the provisions of this act. The proceedings are to go on; that is, the Court are to act on the libel; but this act would finish and conclude them, not agreeably to the provisions of the former act, but of that act,. This is fortified by the act of 1817, which allows alimony in this case.

From the 13th March, 1815, until the act of 1817, the Court had not power to make any other decree concerning divorces, than a dissolution of the bonds of matrimony, without alimony. That act makes provision for the sentence and decree, without repealing the act of March, 1815 ; consequently the wife, under that act, may apply for a divorce from the bonds of matrimony, in which there can.be no alimony, or under the act of 1817, for divorce from bed and board, and for alimony. When the repealing clause of the act of 1815 intended not to change or alter the course of proceedings, it uses a different language ; “ that the act shall not be taken dr construed “ to affect any proceedings under the poor laws of this Com- “ monwealth.”

The wife may now ask for a divorce from the bonds of matrimony, a dissolution for ever. In which case, she will not be entitled to alimony, or for a separation from bed and board, with a maintenance from the husband, which is not perpetual, but temporary. On the breaking of the case, my mind struggled to make the decree for divorce from bed and board, and alimony. But, on more deliberation, I am satisfied, this cannot be done, in conformity to any act of assembly. The course of the wife is open. If she is so pleased, she may file a new petition, begin de novo, under the act of 1817, and pray for a divorce from bed and board, and for alimony. In this case, there is no direct or final decree, or disposition of the libel; for there is no decree of divorce, of any kind, or denial of it. The appeal, therefore, is to be dismissed.

Appeal dismissed.  