
    TAYLOR vs. FELPS.
    Eastern Dist.
    
      June, 1836.
    APPEAL PROM TIIE COURT OP THE THIRD JUDICIAL DISTRICT,'THE JUDGE OF THE EIGHTH PRESIDING.
    According to the divorce law of 1827, ascendants of one of the spouses are competent witnesses to prove cruel and unjustifiable treatment on the part of either of the spouses towards the other, in an action for separation from bed and board; but their competency does not extend to proof of the property which the wife claims in such cases.
    In a cause tried by the couri alone, it is not to be presumed that the judge a quo was influenced in his judgment by improper evidence. So, where, after rejecting the illegal evidence which was admitted on the trial, there is still enough to sustain the judgment of the court, it will be affirmed.
    This is an action by the plaintiff, against her husband, for a separation from bed and board, and for a division and separation of property.
    The plaintiff alleges that she has been cruelly and outrageously treated by her husband, without her fault, so as to ■render their living together insupportable. She prays for judgment separating her in bed and board, and for a division and separation of property from her said husband, &c.
    The defendant denied that there existed any cause to authorize a separation of bed and board or of property as alleged by the petitioner: and further that no community of property existed between them, as alleged, &c.
    On these pleadings and issues the cause was submitted to the court with the testimony adduced by the parties.
    The plaintiff offered her father as a witness to prove the matters alleged in her petition. The defendant’s counsel objected to the witness testifying to any other matter than the separation from, bed and board, which was overruled and the witness admitted generally. A bill of exceptions was taken to the opinion of the court.
    According to ^ d!™'ce hnv oi 1827, ascendants of one are ^competent p^e^uei and unjustifiable paitofeitherof the spouses' to•wards the other, in an action for beTSc^board™ but their compe-teney does not extend to proof udiich flie°Pwife claims in such
    
      The district judge decreed the separation from bed and board, and allowed the wife to take certain slaves, with half the value of a gin and the crop growing, to be divided as her share of the community property, and also the right to retain the possession of her children. From this decree the defendant appealed.
    
      Andrews, for the plaintiff,
    contended that the father of the plaintiff was a competent witness in her behalf to prove any facts legally admissible in her case, and generally. 1 Mo-reau's Digest, 412. 7 Louisiana Reports, 281.
    2. Where the law makes no exceptions, the court can make none, as to the competency of witnesses. The law says the witness is competent to testify in behalf of the wife, not to this or that fact, but generally.
    
      Bradford, for defendant.
    1. The court erred, in permitting Isaac Taylor, the father of plaintiff, to testify generally in the case. By a special statute the ascendants and descendants can testify as to cruel treatment, in actions of separation, and no farther. See Act of 1827, section —, Louisiana Code, articles 2260,2261, 2262.
    2. The court, in its opinion, has not referred to any law “ in virtue of which said judgment was rendered,” nor does it even assert that said judgment is warranted by any law. It is, therefore, illegal, null and void. ./State Constitution, article 4, section 12. 2 Moreau's Digest, page 16, of Appendix.
    
    
      3. The land on which the gin is built, was partnership property, between defendant and his wife of the first marriage; there was an heir of that marriage, now an emancipated ° A minor, and there never was a partition of the partnership property, between the defendant and said minor, consequently the plaintiff could not claim one half of the ameliorations made on the land held in partnership between the heir of- the first marriage and the defendant, which the judgment of the District Court has decreed.
    In acause tried by the court alone it is not to be ’ presumed was íiüuen-cedinhis .iud§" ment by improper evidence: rejectingthe il-wlidi was^admitted on the u-i-enough to susment^of JUtfé court, it will be affirmed.
   Mathews, J.,

delivered the opinion of the court.

ln this case the wife claims a separation from her husband, as to bed and board, and also a partition of property. She obtained a judgment in the court below, favorable to both , , , , claims, and the defendant appealed.

The fat^er °f the plaintiff appeared as a witness, and was permitted to testify in pursuance of the provisions of the act 1 , 1 1 of the legislature, made m relation to married persons who claim a divorce. This law clearly renders ascendants corn-petent witnesses to prove cruel and unjustifiable treatment on ^ie Parlí ei^er °i the spouses towards the other. In the present case the father was permitted to testify as to the wife’s ^ *. j property, and to this part of his testimony an exception was taken. We are of opinion, that on this branch of the cause he was not a competent witness, and thus far his testimony 1 7 J .must be rejected. The case was tried in the court below without the intervention of a jury. The record shows ample P100^ to support, the judgment then rendered in relation to the partition of property, without the testimony of the father, and it is not presumable that the judge a quo was influenced rendering the final judgment by improper evidence,

ft ^ therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.  