Defendant, as appellant, brings up for consideration twenty assignments of error. It is necessary, however, to give express consideration to these :
Assignments of error numbers 1 and 2, based upon exceptions to the denial of defendant’s motions aptly made for judgments as of nonsuit, are untenable. The plaintiff having based his ground for divorce upon two years separation, G-.S. 50-6, and defendant having averred by way of further defense and bar to this action, in substance, that whatever estrangement between the parties was occasioned by the plaintiff’s own wrongful conduct and willful abandonment, the burden rests upon the defendant to establish the defense or defenses set up in the answer and relied upon by defendant. See Taylor v. Taylor, 225 N.C. 80, 33 S.E. 2d 492, where the authorities are cited. Hence motion for judgment as of nonsuit was properly overruled. See Wharton v. Ins. Co., 178 N.C. 135, 100 S.E. 266; Hedgecock v. Ins. Co., 212 N.C. 638, 194 S.E. 86; MacClure v. Casualty Co., 229 N.C. 305, 49 S.E. 2d 742; Barnes v. Trust Co., 229 N.C. 409, 50 S.E. 2d 2.
In the Barnes case, in opinion by Barnhill, J., it is said: “A judgment of nonsuit is never permissible in favor of the party having the burden of proof upon evidence offered by him.”
Moreover, there is no request for peremptory instruction.
However, assignments of error eight, eleven, twelve and thirteen, based upon exceptions of same numbers, taken to portions of the charge of the court to the jury are well taken. These portions of the charge recognize the plea of plaintiff that his marriage to defendant was consummated under the agreement at the time, that they would get married and when the child was born they would then separate and get a divorce. And these portions of the charge permitted the jury, in passing upon the fourth issue, to take into consideration evidence offered by plaintiff in this respect. While it is noted that the record does not show that there was any motion to strike the allegation of the pleading, nor was there objection to the admission of the evidence, the plea and the evidence strike at the very foundation of the social life of the State, and are against public policy, of which the court of its own motion takes judicial notice. Plaintiff may not in this manner exculpate himself from fault after the marriage.
While it is true the portions of the charge to which these assignments relate are in the form of contentions — to which objection does not appear to have been made at the time they were given, and ordinarily an error *126in stating tbe contentions of a party should be called to the attention of the court in time to afford an opportunity of correction, otherwise it may be regarded as waived or as a harmless inadvertence, S. v. Smith, 221 N.C. 400, 20 S.E. 2d 360; S. v. Brown, 227 N.C. 383, 42 S.E. 2d 402; Williams v. Raines, 234 N.C. 452, 67 S.E. 2d 343, it is the law in this State that the trial court should not at any time give an instruction which presents an erroneous view of the law, or an incorrect application of it. See S. v. Hedgepeth, 230 N.C. 33, 51 S.E. 2d 914; S. v. Pillow, 234 N.C. 146, 66 S.E. 2d 657.
In the Hedgepeth case, in opinion by Barnhill, J., this Court declared : “It is the duty of the court to explain and apply the law to the evidence in the case and set the minds of the jury at rest in respect to the principles of law which should guide them in arriving at a verdict. And so it should not at any time give an instruction, even in the form of a contention, which presents an erroneous view of the law or an incorrect application thereof.”
Moreover, if it be a fact that plaintiff has married under the mistaken impression that he had obtained a valid decree of divorce, the fact of such marriage may not inure to his benefit nor work to detriment of defendant in determining whether the alleged separation between plaintiff and defendant was caused by his fault.
And since there must be a new trial and other matters to which exception is taken may not then recur, other assignments of error are not considered.
Let there be a