
    Klingenberger against Klingenberger.
    
      Monday, September 25.
    Upon a libel of the wife ofcraei^and and praying a diTmdofmatriallowance oj alimony, the ^otwitStand!nS íhe mality of the petition, de°ffmm))edand board, with vided'tbelinotobjettto the decree.
    APPEAL from tbe decree of the Court of Common Pleas of Westmoreland county, in a case of divorce.
    
      Barbara Klingenberger, made complaint by petition in writing against her husband; Frederick Klingenberger, charging him with cruel and barbarous treatment, whereby her condition was rendered intolerable, and she was forced to withdraw from his house: and praying a divorce from , * r bond of marriage, and an allowance or alimony. She after-wards made a specification of the particular acts of ill treatment of which she complained. Her husband appeared and . , . ., , , . , , . . pleaded not guilty, and the issue was tried by a jury who found him guilty; upon which the Court made a decree divorce from bed and board, with an allowance to the wife of thirty dollars a year, to be paid by the husband for alimony. From this decree, the husband appealed,
    Alexander, for the appellant.
    The act of 13th March, 1815,
      
       entitles a wife to a divorce from the bond of matrimony, where she has received such cruel and barbarous usage as renders her condition intolerable, and her life burthensome ; and the act of 26th February, L817, authorises her to seek relief from such oppression, in an application to the Court for a divorce from bed and board, with a suitable allowance of alimony. Thus, she has a choice of remedies presented to her, arid she has, in this case, made her election in favour of a divorce from the bond, of marriage, which is more to her advantage than a mere separation from bed and board. This is the sort of relief which she has prayed for in her libel, and as a j'udgment is the sentence of the law upon the matter contained in the record, (3 Bl. Com. 395,) the decree should have corresponded with the prayer of the petition, and not have given a divorce from bed and board with alimony, when the petitioner demanded a divorce from the bond of matrimony.
    
      Foster, for the appellee,
    argued, that the act of 1817, had repealed the act of 1815, so far as regards a divorce for cruel treatment, and left to the wife no other remedy than was provided by the former act. The petitioner in the present instance, he said, had sought relief under that act, and by her petition prayed for alimony ; and with respect to any superior advantages which it might be supposed she would derive from a divorce from the bond of matrimony, she had consented to wave them, by entering no appeal and acquiescing in the decree.
    
      
      
        Purd. Dig. 128.
    
    
      
      
         Purd. Dig. 130.
    
   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:  