The defendant answers to the complaint:

And admits the marriage alleged in the complaint, but denies each and every other allegation of said complaint.

§ 3856. Desertion. A wife, having reason to believe that her husband had been guilty of adultery, separated from him, and instituted a suit for divorce, in which she failed. The husband never thereafter sought to resume cohabitation, nor did the wife, and it was not resumed: it was held that these facts did not constitute desertion by the husband.1

§ 3857. Denial of adultery, and cross-complaint. Form No. 933.

[TITLE.]

The defendant answers to the complaint:

First. For a defense:

That he never committed adultery with the person named in said complaint, or with any other person, at any time or place, or at all.

Second. For a second defense, and cross-complaint, the defendant alleges:

[Allege acts of adultery as in form No. 613.]

Wherefore the defendant demands judgment, etc. [as in that form].

§ 3858. Inhabitancy. An answer setting up plaintiff's adultery merely as a defense need not allege the inhabitancy of the parties, or either of them, at the time of the offense, as is necessary in a complaint.2 But that the offense was committed without the defendant's procurement, connivance, privity, or consent, are essential in such an answer.3

1 Fitzgerald v. Fitzgerald, L. R., 1 P. & D. 694.

2 Lesseuer v. Lesseuer, 31 Barb. 330.

3 Morrell v. Morrell, 3 Barb. 236; Anonymous, 17 Abb. Pr. 48.

§ 3859. Insanity of plaintiff. In an action for a decree of the nullity of the marriage, the defendant can not have leave to allege, by way of amendment, that plaintiff was insane at the commencement of the action, for this is not an issuable fact.*

§ 3860. Limitation. In an action for a divorce, the physical incapacity of the plaintiff to enter into the marriage relation is not, after two years from the date of the marriage, a defense.5 This objection can only be taken by answer, and is applicable to actions for divorce. So where a complaint averred acts of cruelty committed more than ten vears before, and the defense was not interposed in the answer, evidence of such cruelty was admissible.7

6

§ 3861. Marriage must be denied. If the complaint in an action to obtain a divorce avers the marriage of the plaintiff and defendant, and the answer does not deny the averment, it is an admission of the fact for the purpose of the trial, and the marriage need not be proved.8

§ 3862. Recrimination. Adultery committed by the plaintiff is a perfect defense to an action for an absolute divorce, and is also a ground for affirmative relief in the same action.9 The doctrine of recrimination, or compensatio criminum, applicable in suits for divorce, and the several offenses which by the statute constitute grounds of divorce, are pleadable in bar to such suits, the one to the other, within the principle of the doctrine.10 To be an absolute bar, the conduct of the plaintiff must be such as to constitute a proper basis for judicial decree against her, had suit been instituted by the defendant.11 In a husband's suit for divorce for the wife's adultery, his

4 Appleton v. Warner, 51 Barb. 270.

5 Griffin v. Griffin, 23 How. Pr. 183.

6 Bihin v. Bihin, 17 Abb. Pr. 19. 7 Id.

8 Fox v. Fox, 25 Cal. 587.

Insufficient averment of coverture.

See Kelly v. Murphy, 70 Cal. 560.

9 Anon., 17 Abb. Pr. 48; B. v. B., N. Y. Leg. Obs. 350.

10 Conant v. Conant, 10 Cal. 249; 70 Am. Dec. 717; Lesseuer v. Lesseuer, 31 Barb. 330.

11 Conant v. Conant, 10 Cal. 249; 70 Am. Dec. 717; Cal. Civil Code, 88 122, 123.

adultery can not be set up under the Code of New York as a counterclaim, and if proved, will not entitle her to a divorce.12

§ 3863. Residence. In an application by the wife for a divorce, on the ground of the willful neglect of her husband, and his failure to provide her with the necessaries of life for the period of three years, the residence of the husband with the wife within the three years is no answer to the application, where it appears that they were not living together at the commencement of the suit.13

The defendant answers to the complaint:

I. That after the time mentioned in the complaint, and before this action, the plaintiff, being informed as to the matters therein alleged, freely condoned said alleged adultery, and forgave the defendant thereof [and freely cohabited with him].

II. That ever since such condonation the defendant has been a faithful husband to the plaintiff, and has constantly treated her with conjugal kindness.

§ 3865. Must be specially pleaded. Condonation must must be specially pleaded.14 This defense may be joined with a denial of the adultery charged, and also with a defense charging the plaintiff with adultery as a bar.15

§ 3865a. Cross-complaint. It is the practice in California for the trial courts to entertain cross-complaints in actions for divorce or annulment of marriage.1 16 There may be a crosscomplaint in an action for a divorce, upon which affirmative relief may be granted to the defendant upon a cause for divorce

12 R. F. H. v. S. H., 40 Barb. 9; see, however, Anon., 17 Abb. Pr. 48; Campbell v. Campbell, 12 Hun, 636; Bleck v. Bleck, 27 Hun, 296. 13 Washburn v. Washburn, 9 Cal. 475.

14 Smith v. Smith, 4 Paige Ch. 432; Morrell v. Morrell, 3 Barb. 236. In a divorce suit in Oregon, the defendant may take advantage of the defense of condonation without pleading it. Hill v. Hill, 24 Oreg. 416; and see, also, North v. North, 5 Mass. 320.

15 Smith v. Smith, 4 Paige Ch. 432; 27 Am. Dec. 75; Wood v.

Wood, 2 Paige Ch. 108; Hopper v. Hopper, 11 id. 46.

16 Wadsworth v. Wadsworth, 81 Cal. 182; 15 Am. St. Rep. 38.

from the plaintiff.17 And when such cross-complaint is filed and is complete and distinct in all its parts, entitling the defendant to affirmative relief, the action can not be dismissed by the plaintiff without the consent of the defendant.18

The defendant answers to the complaint, and denies: That he obtained the said deed from the plaintiff by fraud or misrepresentation [deny specific acts alleged].

The defendant answers to the complaint, and denies: That there are errors or mistakes in the stating of the said account, as alleged, or at all, but alleges that the account stated which is mentioned in the complaint is correct, true and just.

17 Blakely v. Blakely, 89 Cal. 324.

18 Mott v. Mott, 82 Cal. 413. In Oregon, the defendant may, in an answer in the way of a cross-bill or counterclaim, demand and obtain the affirmative relief of a divorce, when shown to be entitled thereto. Dodd v. Dodd, 14 Oreg. 338; see, also, Waltermire v. Waltermire, 110 N. Y. 183; Wilson v. Wilson, 40 Iowa, 233. By express statute in Indiana. Glascock v. Glascock, 94 Ind. 163; se in Missouri, Fiske v. Fiske, 62 Mo. 337. In Georgia, the defendant may have affirmative relief upon his answer alone. Owen v. Owen, 54 Ga. 526; so in Nebraska, Shafer v. Shafer, 10 Neb. 468.

The defendant answers to the complaint and denies generally and specially each and every allegation in the complaint contained.1

§ 3869. Right of office. A plea to a quo warranto, that the defendants have a right to exercise the franchise, accompanied by a negation of the allegations of the writ, is not a plea of non usurpavit, or a disclaimer, but is a valid plea.2 The defendant in an action to try the right to an office may set forth in his answer more than one defense.3

§ 3870. Ineligibility no defense. In a proceeding to contest the election of defendant as district judge, the ineligibility of the candidate receiving the highest number of votes, the defendant being next on the list, is no defense; because this matter, if true, could not protect the incumbent from the consequences of an unauthorized possession of the office. The fact that the candidate receiving the highest number of votes at an election by the people is ineligible does not give the office to the next highest on the list.5

§ 3871. Justification. In quo warranto cases, if the defendant does not disclaim holding the office, he must justify, and his plea of justification must show all the facts necessary to establish the lawful right of the respondent to the office in question; and the burden of maintaining it is on the respondent.

1 If the complaint be sworn to, the answer must deny specifically each allegation controverted. See, also, generally, § 2903, ante. 2 Commonwealth v. Cross Cut R. R. Co., 53 Penn. St. 62.

3 People v. Stratton, 28 Cal. 382.

4 Saunders v. Haynes, 13 Cal. 145.

5 Id.

6 Larke v. Crawford, 28 Mich. 88.