
    Pillow vs. Pillow.
    When a divorce a vinculo matrimonii is sought, the petition or bill must conclude with a prayer for that relief, under the act of 1799, ch. 19, sec. 5.
    In chancery, when there is a prayer for particular relief, also for general relief, if the proof authorize a decree according to the prayer for particular relief, it must be made; but if not, the court will proceed on the general prayer.
    A petition for a divorce is not one of the cases embraced by the act of 1819, ch. 31; and therefore an appeal in the nature ofa writ of error will lie to the supreme court.
    In this case the petition charges the husband with cruel treatment, turning away the wife from his house, and adultery with other women. The prayer of the petition is for alimony, with a prayer for general relief. There is no prayer for a divorce a vinculo matrimonii. The answer denies the substantial allegations in the bill, upon which an issue is joined by replication. The cause was regularly set for hearing, and was heard in the circuit court, upon evidence viva voce, when a divorce from the bonds of matrimony was decreed, upon the facts set forth in the petition being proved as the decree states. Alimony of one third of the husband’s personal estate was decreed to the wife, From this decree the defendant prayed and obtained an appeal in the nature of a writ of error to this court.
   Whyte, J.

The rule is, that if there he a prayer for particular relief, and also a prayer for general relief, and there be evidence suited to the special relief sought, the decree should follow the special relief: hut, if the evidence be not suited to the special relief, but is, nevertheless, such as entitles the party to some relief, then the court will proceed on the general prayer. 2 Atk. 141.

I am of opinion, that in all cases where the divorce a vinculo matrimonii is sought, the bill or petition should conclude with a prayer for that relief. This is within the spirit, and indeed the words, of the act of 1799, ch. 19, sec. 5. For this cause, I think the decree should be reversed, and that this court ought to give such judgment as the circuit court ought to have given.

Catkon, J.

The first question is, was this cause properly brought here? The court below ordered commissioners to lay off one third of the personal property to the wife, and the writ of error was taken before this was done. The order to partition the property was in the nature of an execution, and therefore the writ of error ought to have been taken before the decree was executed.

This being a chancery case, will the writ of error lie? By the acts of 1811, ch. 73, sec. 11, and 1809, ch. 49, sec. 26, no other process would lie to bring a cause from the circuit court to this court; and so the law continued up to 1819, ch. 31, which requires that all proof, in chancery causes, shall be in deposition, and that appeal shall lie from the circuit court to this court.

A petition for a divorce is not of the character of a cause contemplated by the act of 1819, ch. 31. The proof is by parol, in all such cases, and ought to be so; because, by the second section of the act of 1799, ch. 18, either party may have any material fact put in issue by, the petition and answer, tried by a jury. In this cause therefore, the writ of error, or an appeal in the nature thereof, which in effect is the same, was the proper .and only process to bring the cause before this court; and had it been desirable to either party to have the proofs heard below, before this court, the bill of exceptions to the decree below ought to have set out the evidence. As the cause now stands, the only inquiry is, did the circuit court mistake the law upon the facts set forth in the record, which must be taken as true by this court. Upon this point I concur with Judge White’s opinion.

Haywood and Peck, Judges, concurred.

Decree reversed.  