
    [Philadelphia,
    Jan. 6, 1823.]
    ROBBARTS Appellant against ROBBARTS, by her next friend GIBSON, Appellee.
    APPEAL.
    An appeal lies to the Supreme Courtfbn a decree of divorce from bed and board, and alimony in the Court of Common Pleas, under the act of the 26th February, 1817.
    Appeal- from the decree of the Court of Common Pleas of the County of Philadelphia.
    
    On the- libel of Christiana Robbarts, the appellee, by her next friend James Gibson, against John Robbarts the appellant, and a verdict in favour of the libellant, on several issues joined, the court below, decreed a divorce from bed and board, and alimony. From this decree, the defendant below appealed to this court.
    
      King'S? Chauncey for the appellee',
    moved, that the appeal should be dismissed ; contending, that-as the act of assembly gave no appeal in such case, this court could not entertain it. The actof 13th March, 1815, gives an appeal in case of a decree from the bond of marriage: but the supplement, passed on the 26-th February, 1817, to-enable the court to decree divorces from bed and board, is silent on the subject. This court cannot exercise an appellate jurisdiction, not vested by act of assembly. In Miller v. Miller, 3 Binn. 30, it is observed by the court, that causes of divorce and alimony are, in general,-not cognizable in common law courts: and that being a jurisdiction of a peculiar nature, vested by act-of assembly, the mode of proceeding prescribed by the act, and no other should be pursued; and they refused to sustain a writ, of error, because the act of assembly then in force on the subject, did not authorize it. From the silence of the legislature in the year 1817, it is to be presumed, they intended, that in cases of divorce from bed and board, the decree of the Court of Common Pleas should be conclusive. The act of 2d April, 1804, 4 Sm. Laws, 182, which was repealed by the act of 13th March, 1815, expressly gave an appeal to the Supreme Court, or high court of errors and appeals. They further argued, that a divorce from bed and board, differs from a divorce from the bond of matrimony, in this, that the former ceases on a reconciliation of the parties, and is, therefore, not final, but the latter is. This may have been one reason why the legislature gave no appeal in the case of a divorce from bed and board, and is sufficient to deprive the party of a remedy, which can be had only where the decree is final.
    The court relieved E. S Sergeant and I. R. Ingersoll from arguing on behalf of the appellant, and their opinion was delivered by
   Tilghman, C. J.

The appellee, Christiana Robbarts, exhibited a petition on the 5th November, 1819, .to the Court of Com-roon Pleas for the county of Philadelphia, praying for a divorce from bed and board, and alimony. The court made a decree in her favour, from which her'husband, John Robbarts, appealed. A motion has been made, to dismiss the appeal, and the question is, whether an appeal lies in this case.

On the 13th March, 1815, an act was passed, “ concerning divorces,” which was intended as a complete system, and repealed the former acts on the same subject. By the first section it was enacted, that “where any husband shall have, by cruel and barbarous treatment, endangered his. wife’s life, or offered such indignities fo her person, as to render her condition intolerable, and life burthensome, and thereby force her to withdraw from his house and family, it shall be lawful for the innocent and injured person, to obtain a divorce from the bond of marriage.” By the twelfth section, the court was authorized to award costs, to be paid by the party against whom the decree is made, or that each party shall pay his or her own costs, at their discretion. The thirteenth section gives an appeal to the Supreme Court, in all suits or actions to be 'brought under that act. It was soon discovered, that this law was defective, inasmuch as it contained no provision for divorces from bed and board, or alimony. To remedy this omission, an act was passed on the 26th February, 1817, entitled, a supplement to “an act concerning divorces.” By this supplement, in case of such ill treatment as is mentioned in the first section of the act of 1815, the Court of Common Pleas was authorized to grant the wife a divorce from bed and board,., and also to allow her alimony, to continue until a reconciliation should take place, or until the husband should by his petition, or libel, offer to receive and cohabit with his wife again, and in such case, the court might suspend their sentence, or in case of her refusal to return to her husband, discharge and annul the same, according to .their discretion. _ But there is no mention of an appeal to the Supreme Court, and, therefore, it is contended, that no appeal lies.

It is very true, that all these proceedings being contrary to the course of the common law, they must be prosecuted in the manner prescribed by the acts of assembly, and unless an appeal is given by these acts, it does not lie. It is true also, that this case does not come within the letter of the act of 1815, because the suit was brought, not under' that act, but under the supplement. Never-thelessj it appears to the court, that the original act, and supplement, are so blended, as parts of one system, that the appeal lies in all suits prosecuted under the one or the other. So likewise may costs be given in all suits, though the supplement says nothing of costs. ' It was unnecessary for the. supplement to give either án appeal or costs, because it was engrafted on the original law which gave both. It was objected, that a decree of alimony could not be final, because the husband might avoid it, by offering to take his wife home, and treat her kindly: but we do not think so. The decree is final and conclusive, though subject to be suspended, or annulled, in consequence of subsequent acts of the husband. If he never offers to take his wife home, the decree remains in full 'force, and nothing further is to be done by the court. There is no reason, therefore, why it should not be appealed from. And it may be of the utmost importance to the husband, to have an appeal. The deei’ee may be. ruinous to him, by burthening him beyond his abilities. It is the opinion of the court, that the appeal lies, and therefore the motion to dismiss it is rejected.

Motion rejected.  