SAVOIE vs. IGNOGOSO, 7 La. 281

Mathews J., delivered the opinion of the court. This is a case in which a wife claims a divorce from her husband, in pursuance of the provisions of the act of the legislature, passed in 1827, in relation to the separation of married persons. The petitioner claims a separation of property, and divorce from bed and board, on account of excesses, cruel treatment, and outrages committed on her by her husband; alleging that her intention is to obtain finally, a divorce from the bonds of matrimony.

To prove, the alleged outrages, she offered as witnesses some of her children, who were excepted to as incompetent, and the exception was sustained by the court below; and to the opinion by which these witnesses were rejected a bill of exceptions was taken, &c. Judgment was rendered against the plaintiff, from which she appealed. The examination of this bill of exceptions requires from this court (for the first time) an

interpretation or construction of the act of the legislature, on which this action is founded. The only question, however, for solution, relates to the competency of witnesses to testify for or against their ascendants or descendants. As a general rule, they are rendered incompetent by the art. 2260 of the Louisiana Code, and unless an exception to this rule be found in the act under consideration, the judge a quo acted correctly in rejecting the witnesses offered on the part of the plaintiff, in the present case.

The causes for which divorces may be claimed, as specified in the law, are adultery, excesses, cruel treatment or outrages, condemnation to an ignominious punishment, and abandonment. These causes are. all laid down in the eleventh

section of' the act. The, second establishes the tribunals for the trial of cases in which divorces are claimed : And the third provides that “all actions of divorce shall be tried as all other cases, provided, that no witness summoned by the parties, shall be declared incompetent under the pretence of their being the allies or relations of either plaintiff or defendant. If these sections of the law stood alone, no doubt could be entertained of the

section last cited, enacting an exception to the general rule of competency established in relation to ascendants and descendants : Otherwise the proviso will be without effect. But the fourth

section of this act, is expressed in the following terms : ^ Except in cases where the husband or wife may have been sentenced to any infamous punishment, or convicted of adultery, as provided for in the first

section of this act, no divorce shall be granted, unless a judgment of separation from bed and board, shall have been previously rendered between the parties, and unless two years shall have expired from the date of the judgment of separation from bed and board, and no reconciliation may have taken place; provided, that in the cases excepted above, a judgment of divorce, may be granted in the same decree, which pronounced the separation from bed and board. Bej^ratYonffrom ted and board, añd meaning of acttm The exception to the general rule of evidence 2260^*™ La! Code, by

section relative to restricted \o ei5íer sPe°ief of plies to both, separation from Pleads t» a divorce a vinculo matrimonil. This section, unless its provisions be clearly contrary to those of the preceding sections, cannot, according to any just

interpretation of laws, abrogate the rules established by them. The meaning and tenor of the whole law, taken together, appears to us to be applicable to either species of divorcé, as well that which goes no farther than a separation from bed and board, in its primary effects, as that which at once dissolves the bonds of matrimony. The former is as complete . r , . , . . , a separation of the parties to the matrimonial engagement as the latter, with the exception that no new marriage of either could be legally made.

The claim of separation from bed and board, is m the, terms of the, law, an action of and the exception contained in the proviso of the third section, to the general rule, of evidence established by the Code, is not restricted to either species of divorce; it therefore, embraces both. The action of divorce, which has for its object a separation from bed and board, will, in all instances, tend to a final and absolute discharge of the parties ab vinculo . .. i*. _ _, /» matnmonn, and leads directly to that result, m the event of no reconciliation, within the time limited by law.

The first intention of the legislature, seems to be an offer of relief to the. injured party, from outrages repugnant to the feelings of humanity, and ultimately to place the sufferer in a situation to form a more congenial matrimonial connection. But, if the construction assumed by the court below, be adopted, a principal means of arriving at the final result, contemplated by the legislature and authorised by the law, will be rendered void and utterly unavailing. .

By allowing the parties an opportunity for reconciliation, we do not believe that the law makers intended-to destroy the means of relief previously held out to a suffering husband or wife. So in a suit for a separation from bed andboardby the wife against the husband, with a view to a divorce, the children of the plaintiff, both majors and minors, are competent witnesses to testify in her behalf.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided, reversed and annulled, and that the cause be remanded to said court, to be tried de novo, with instructions to the judge, to permit the children of the plaintiff, to testify in this case. And it is further ordered, that the appellee pay the costs of this appeal.