Blakely v. . Blakely

119 S.E. 485, 186 N.C. 351, 1923 N.C. LEXIS 247

Opinion

Hoke, J.

On tbe trial, plaintiff offered evidence tending to show tbe alleged adultery of tbe wife in tbe year 1921. On objection tbe evidence was excluded, tbe court stating that be would not permit any evidence of adultery prior to March, 1922, tbe date of final separation of tbe parties, for tbe reason that plaintiff bad not negatived condonation in bis complaint, and in our opinion the exception of plaintiff to tbis ruling must be sustained. Condonation is properly understood to be tbe forgiveness of an offense on condition that tbe party will abstain from like offenses thereafter, and if tbe condition is violated tbe original offense is revived. Lassiter v. Lassiter, 92 N. C., 129. It is very generally regarded as a specific affirmative defense to be alleged and proved by tbe party insisting upon it and is not required to be negatived by tbe opposing pleader. White v. White, 171 Va., 244; Odom v. Odom, 36 Ga., 386; 9 R. C. L., 386. And decision of our own Court, in Kinney v. Kinney, 149 N. C., 321; Steel v. Steel, 104 N. C., 631-638, and other cases, are in full approval of the general principle. Even when set forth in the pleadings as required, not being in the nature of a eounterclause, the allegations would be taken as denied by the plaintiff. C. S., sec. 543.

There is error and plaintiff is entitled to a new trial of the cause.

Reversed.