I respectfully dissent from the majority opinion in this cause. The majority opinion affirms the action of the trial judge in granting a motion by the defendant wife to withdraw the issues from the jury and dismiss complainant’s suit. The cause was being tried to a jury and the ground for divorce alleged was cruel and inhuman treatment. As is stated in the majority opinion, complainant had not only adduced some substantial proof tending to sustain the charge of cruel and inhuman treatment, but had adduced proof corroborating same. In that situation, it is my opinion that the trial judge erred in withdrawing the issues from the jury. Section 36-811 T.C.A. provides: “If the cause assigned for the divorce be adultery, it shall be a good defense and perpetual bar to the same if the defendant allege and prove:
“(1) That the complainant has been guilty of like act or crime. ’ ’
I find in the Code no similar provision with reference to other grounds of divorce. Section 36-818 T.C.A. does provide:
“Defense when ground is mistreatment or neglect. —If the cause assigned for a divorce be any of those specified in sec. 36-802, the defendant may make defense by alleging and proving the ill conduct of the complainant as a justifiable cause for the conduct complained of, and on making out the defense to the *699satisfaction of the court, the bill may be dismissed with or without costs, in the discretion of the court.”
36-818 T.C.A. is applicable, however, in my opinion, only where such defense as is therein authorized be, also, one of the grounds for divorce provided for in 36-802 which are, 1. Cruel and inhuman treatment, 2. Offering indignities to the person, and 3. Abandonment or turning out of doors, and neglecting to provide. The right to divorce in Tennesssee is purely a statutory right, and nowhere in our statutes do I find any provision for the defense of recrimination as set out in the majority opinion.
Even if it be true, as is set out in the majority opinion, that any ground for divorce on the part of the petitioning spouse would constitute a defense, adultery of the complainant in the instant case would not constitute such defense, because the defendant did not allege and prove that she was not guilty of a like offense, as is required by the decision of the Supreme Court in Cameron v. Cameron, 42 Tenn. 375. Defendant’s answer and cross bill did not have attached to same the oath required by section 36-806 T.C.A., which affidavit is a jurisdictional prerequisite, as was held in Wagner v. Wagner (1918), 8 Tenn.Civ.App. 254; Carter v. Carter (1944), 28 Tenn. App. 478, 191 S.W.2d 451; McFerrin v. McFerrin (1945), 28 Tenn.App. 552, 191 S.W.2d 946, 948. Since defendant’s answer and cross bill did not meet the requirements of 36-806 T.C.A. notwithstanding the fact that complainant’s own testimony admitted adultery on his part, defendant, on authority of Cameron v. Cameron, 42 Tenn. 375, could not have obtained a divorce on that ground. The majority opinion holds that the rule of Cameron v. *700Cameron should not be extended. In my opinion, this is not an extension of that rule, but is a mere application thereof.
Since this cause was being tried before a jury, it is my opinion that admission of adultery by complainant did not bar his right to a divorce on the ground of cruel and inhuman treatment if the jury had found that the defendant was guilty of such offense, as charged. It is therefore my opinion that this cause should be reversed and remanded for a new trial so that that issue may be submitted to a jury.