Hopper v. Hopper , 11 Paige Ch. 46 ( 1844 )

The Chancellor.

If the respondent’s denial that he had been guilty of any of the acts of improper and cruel treatment of his wife charged in the bill was, for all purposes, to be conclusive evidence that all the allegations in the bill on that subject were false and unfounded, the charges of misconduct on the part of the complainant would unquestionably be impertinent as well as useless. But a defendant in this court, in an answer, is at liberty to set up as many defences as he pleases. The different parts of his answer, therefore, are not to be construed in the same manner as the different parts of a plea would be in this court, or even in a court of law. Thus in the case of a bill filed for a divorce on the ground of adultery, a recriminatory charge on the part of the defendant would be entirely useless and impertinent, if the denial of the adultery charged in the bill was not subject to be displaced, as a defence, by the testimony in the cause. Yet, in a case of that kind, it has been decided that where a defendant in his answer denies upon oath that he has been guilty of the adultery charged in the complainant’s bill, he may in the same answer set up' the adultery of the complainant, as a defence to the sni.t; or any other matter which will be pertinent if the complainant should succeed in proving the allegations contained in the bill. (Wood v. Wood, 2 Paige’s Rep. 108. Dillon v. Dillon, 3 Curt. Eccl. Rep. 30.)

Where the defendant is required to swear to the truth of his answer,- or at least to his belief of its truth, he cannot set up two distinct defences therein which are so inconsistent with each other that if the matters constituting one defence are truly sta-; ted, the matters upon which the other defence is attempted to be based must necessarily be untrue in point of fact. But the defendant may deny the allegations upon which the complainant’s title to relief is founded, and may at the same time set up, in his answer, any other matters, not wholly inconsistent with such denial, as a distinct or separate defence to the claim for relief made by the bill, or to some part thereof.

Here the allegations in the answer, as to the improper intimacy of the wife with another person, with whom she knew her husband was not upon friendly terms, and other conduct calculated to irritate and provoke the husband to acts of violence and unkind treatment, are not inconsistent with his denial that any acts of violence or of cruel treatment on his part have ever taken place. And it is not for the complainant, who has charged her husband with cruel and inhuman conduct towards her, to say it is not necessary for him to set up misconduct on her part which tended to irritate and provoke him to acts of violence. In this stage of the suit it is impossible for the court to say which party has sworn false in relation to the charges in the bill. I cannot, therefore, say there is no necessity for the defendant to set up recriminatory charges in his answer; to enable him to go into proof thereof, in case the complainant should succeed in establishing the allegations in the bill. And if the matters excepted to as impertinent can in any event be material to the defendant, either as an absolute defence to the suit, or in relation to the question of costs, or to the amount of alimony which the complainant should receive in case she succeeds in obtaining a decree for separation, these exceptions to [he answer should not have been allowed.

In cases of this kind it is important for the court to know what has been the conduct of the wife towards the husband, as well as what his conduct has been towards her, in deciding the question whether it is a proper case for a decree of separation. I am not, therefore, prepared to say that misconduct on her part which was calculated to irritate and provoke him, or to excite his jealousy, or to alienate his affections from her, should be considered as useless and impertinent, in an answer to a bill which charges cruelty on his part.

For these reasons the order appealed from must be reversed; and the exceptions to the master’s report disallowed by the vice chancellor must be allowed; and all the exceptions to the answer must be overruled. The costs of the defendant upon the reference, and upon the exceptions to the report, and also his costs upon this appeal, must abide the event of the suit.