¶1The plaintiff brought this suit for a judgment of separation from bed and board.
¶2Her grounds are ill and cruel treatment, constant humiliation, and that on a day stated her husband “took hold of her by the back of her hair and then struck her.”
¶3The defendant denied the charges of the wife against him.
¶4Six children are issue of the marriage.
¶5The eldest aged 18 years, and the youngest S years.
¶6Trial was had, and judgment of separation a mensa et thofo rendered in favor of plaintiff, and gave plaintiff the permanent care of the children.
¶7Plaintiff had obtained an injunction; it was made perpetual, and the court ordered the community property to be divided.
¶8From this judgment, defendant appeals.
¶9During the trial in the district court, questions arose about the admissibility of testimony.
¶10The defendant offered to prove by Mrs. Joseph Alvarex, who lived next door to plaintiff, that the eldest daughter of defendant, who had testified against him during the trial, had testified entirely from statements made to her by her mother, and that her mother and she had repeatedly rehearsed her testimony.
¶11More specifically the charge was that mother and daughter had colluded together in order that the latter (the daughter) would testify falsely against her father.
¶12Thus, for discrediting the witness.
¶13The court declined to permit the witness to testify; held that, in his opinion, no mother or father should do anything of the kind.
¶14To this ruling, the defendant’s counsel objected and took a bill of exception.
¶15While such evidence should be closely observed and vigilantly weighed, it was none the less admissible.
¶16The witness has the burden of proving the credibility of her statement. If she fails, there is no harm done, and the law’s requirement is followed. If she sustains her credibility, the question remains whether a fathér should go to that extreme in order to prove his defense.
¶17Impropriety may affect the credibility of ^he witness and weaken the cause; it does not affect the admissibility of the testimony.
¶18This did not give rise to a question of law.
¶19The rules of evidence are peremptory; when they are plain and pot to be misconstrued, they are controlling.
¶20The plaintiff urges in addition that there was no foundation laid for the admission of the testimony.
¶21There was no purpose of proving prior self-contradiction.
¶22The charge was willingness to swear falsely — an asserted misconduct between mother *713and daughter about the testimony of the'latter.
¶23That could be shown without first laying the foundation.
¶24The decision cited by learned counsel — ' Succ. of Pinard v. Holten, 30 La. Ann. 170— rebates to the impeachment by proof of contradictory statement.
¶25Not the case here. The testimony was tendered with the view of attacking the testimony of the daughter on the grounds above stated, which have nothing about them of going to contradict the witness.
¶26For illustration: Had she been made to testify falsely the testimony of that fact would have been admissible.
¶27The defendant offered his 10 year old boy to testify in his behalf.
¶28The court had heard the eldest daughter as a witness, and two of the sons. Then the youngest, 12 years old, was called to testify.
¶29Our learned Brother, because of the tender years of the witness and the sad plight in which it placed the little boy, were "he heard to testify against his own mother, excluded the testimony.
¶30We appreciate the feeling of the district judge.
¶31Not long since we had occasion, after having weighed the testimony of the two children — who had testified in a suit for a separation from bed and board — one as a witness for the father, and the other for the mother, to use language from which it cannot be gathered that such evidence under the circumstances stated should be offered.
¶32None the less, the testimony was held admissible. Schlater v. Le Blanc, 121 La. 919, 46 South. 921.
¶33The young boy was not examined as to his competency on the ground of his tender years.
¶34This testimony was excluded because one so young should not be called upon to testify in a case such as the pending case. It should be — it is not — the law.
¶35There are two other questions discussed preliminarily.
¶36As the case will be remanded for another trial, these questions have lost all importance. We leave them without comment.
¶37By reason of the law and the evidence being in favor of defendant and against plaintiff, it is ordered, adjudged, and decreed that the decree is annulled, avoided, and reversed, and this cause be remanded to the district court ivhence it came, and that it there be proceeded and tried in accordance with the views before expressed.
¶38It is further ordered, adjudged, and decreed that plaintiff and appellee pay the costs of appeal.