the matter. The question to be solved was a grave one, the marriage of an uncle and a niece, so much so that before leaving the opinion of a friendly lawyer had been obtained, which was that such marriage could be legalized in France. After their arrival here, the question was submitted for legal advice, and after it was given Romain Buissière and Lucie Adèle Mangournet, who was then a minor, left the state, and went to Bay St. Louis, Miss., where they were the objects of the ceremonies of marriage, in December, 1882. They subsequently returned home, lived publicly and avowedly as husband and wife, and had two children, one of whom died, the other surviving her father.

Under the circumstances, it is urged that, as the marriage of an uncle with his niece was prohibited, as well in Louisiana, as in Mississippi, at the date of the celebration, and as the parties knew, constructively and actually, of such prohibition, the marriage which was solemnized between them was contracted in bad faith, and must be declared barren of all effect. It is further urged that, whether they knew or not of the prohibition, the marriage is a nuility, because they cannot be permitted to plead ignorance of the law, and that what is done in violation of a prohibitory law is null, and produces no legal effect, as parties are not allowed, by their conventions, to derogate from the same. This is no doubt the general rule of law which underlies all wellordained civil government, as a matter of necessity, for the preservation of public order and good morals, but the rule is not so emphatic and peremptory that exceptions may not exist which do not fall within its ban. Surely, the law-making power had the right to make exceptions (and it has done so) in cases of marriages which, however made in derogation to prohibitions, are, nevertheless, permitted to produce civil effects when contracted in good faith, as well in favor of the spouses, or of one of them, as of the issue of the marriage. On the question whether the defense of the ignorance of the law can be raised and admitted in the present controversy, much has been ably said and written by the learned counsel representing the litigants; but it would serve no useful purpose to enter into a discussion of the relative merits of the contention.

The matter, long mooted, has been thoroughly considered, and may now be deemed as finally set at rest, as well by commentators as by courts of justice. In France, from which our legislation mostly derives, the plea has been allowed and sustained whenever the circumstances warranted. Article 201 of the Napoleon Code declares that the marriage which has been declared null produces, nevertheless, civil effects, as well as concerns the spouses as the children, when contracted in good faith. Article 202 of the same Code provides, further, that, if good faith exists only on the part of one of the spouses, the marriage will produce civil effects in favor only of that spouse and of the children born of such marriage. Articles 117 and 118 of our Revised Code have the same import, and are substantially, if not identically, the same.

From the views expressed in France, by distinguished commentators, as well as from the opinions there announced in some 10 cases, it appears that it is now a recognized and established principle that good faith may result as well from an error of law as from an error of fact, and that the parties contracting marriage, under circumstances from which such errors arise, are entitled to the relief allowed by law. Marcade on Art. 201; Duvergier Toullier, 1 No. 658, note A; Demolombe, 3, 357, 343, et seq.; Aubry & Rau, 5, p. 46, par. 460; Zachariæ, 1, 125; Laurent, 2, n. 504; Accollas, 1, 199, 181; Paris 9 Mess. an 111, p. 38, 1, 77; 18 Dec. 1837; 1838, p. 1, 78; Limoges 25 Août, 1841, p. 54, 1, 315; 5 Jan. 1842; also 1849; Aix, 11 Mar. 1858, p. 58, 1860, 1871, 1880, and authorities in defendants' brief. There is no reason why this humane exposition of the law should be questioned, and still less why we should run counter to it. We therefore adhere to it, and hold that the principle ought to be applied to the instant case, and therefore that, if circum

stances exist which were susceptible of inducing the belief in the wife that her marriage with her uncle could be valid, her good faith must protect her and her innocent offspring. It is important to bear in mind that Romain Buissière and Lucie Adèle Mangournet were French citizens, and that, as such, they had some knowledge of the law of their country on the subject of marriages between uncle and niece.

The law of France, article 163, N. C., in this respect, is, like ours, prohibitory; but the following article, 164, which is not found in our Code, declares that, nevertheless, it is allowed to the emperor (president of the republic) to raise, for grave reasons, prohibitions announced against marriages between the uncle and the niece, the aunt and the nephew.

The evidence in this case shows that Romain Buissière consulted a veteran lawyer, who once occupied an important position on the bench, touching the validity of his contemplated marriage with his niece, and that he was informed that, although in Louisiana the marriage was forbidden, it would be valid in certain states; that Buissière approached another attorney, once a justice of the peace, and at the time a clerk of court, and also a notary public, who drew up the contract which was afterwards signed. Strenuous efforts were made to show that Miss Mangournet, who was at the time a minor, accompanied Buissière in every instance, and that she must have overheard the views expressed to him on the subject; but, whatever the testimony be in this regard, it has not, contradicted as it is by her own sworn declarations, left on our minds the impression that she acquired, in consequence, the knowledge that, in Louisiana, the prohibition was absolute, so that it can be well inferred that, while she may have known, and ever knew, of the existence of the prohibition, she remained under the honest conviction that here, as in France, power was lodged somewhere to raise the impediment, or that it could be removed in some manner, and had been done away with. To all appearances, when she left with Buissière for Bay St. Louis, she did so under the belief that Mississippi was one of the states in which, as the counselor had said, a marriage between uncle and niece could be legally contracted, and that such marriage could be, as had been stated by the French lawyer, legalized in France.

In a case like the instant one, in which it appears that a young girl, still a minor, brought over from her native land by an uncle, assisted by the advice and presence of her father and mother, who had crossed the ocean for the purpose of attending her marriage, pressed by that uncle for her hand, which she in good faith consented to give him, was married, occupied and enjoyed publicly during his life the status of his legitimate wife, becoming the mother of two children,-a case in which, after all this had occurred, the uncle dies, in somewhat relatively independent circumstances, leaving a will in favor of his wife and of her child, and excluding the plaintiffs, as much as he could have done without naming them, from any participation in his estate,-we think with Toullier that the status of both the widowed mother and the orphan daughter, such as it was made by the departed husband and father, ought not to be disturbed, and that they should reap all the civil effects which a marriage, however questionable its validity may have been, secures to one of the spouses and to the issue when contracted in good faith. 1 Toullier, p. 304, par. 608. We must not be understood as holding that the marriage was valid, for surely it was one which could have been annulled, as contravening a prohibitory law. What we decide is simply that, however much it could have been annulled, it is one of those marriages which, though null, produces, nevertheless, civil effects, because contracted in good faith, although that good faith may lack of legal foundation.

2. We think that the charge that the will contains a prohibited substitution and fidei commissum is not tenable, for the reason that it does not appear that the legatee of the usufruct and the universal legatee were charged

to preserve for, or to return a thing to, a third person. Rev. Civil Code, arts. 1520, 1522. The legacy of the usufruct to the wife is, as to its quantum, to be graduated by circumstances to extend over one-half or one-fourth of the testator's property, and the universal legacy covered the entire remaining property in absolute ownership, including enjoyment of one-half and the naked ownership of the other half, susceptible of increase by enjoyment of half thereof or one-fourth of the whole, in certain contingencies, unnecessary to be mentioned. The fact that the testator has expressed the desire that, after the death of his wife, certain nephews and nieces of his, or their descendants, should enjoy the like usufruct, is of no moment. If unwarranted by law, it must simply be reputed as unwritten, (Id. art. 1519,) and, in any event, it does not impair the validity of the disposition of usufruct in favor of the widow. Succession of Law, 31 La. Ann. 456.

The views above expressed relieve us from the necessity of passing on the plea of estoppel set up by the widow and tutrix, and on other matters urged by the plaintiffs, which constitute nothing but corollaries to their fundamental propositions. We therefore conclude that the widow and her child are entitled to the relief sought by them.

It is therefore ordered and adjudged that the judgment of the lower court be reversed, and it is now ordered and decreed that there be judgment in favor of the defendants, rejecting plaintiffs' demand, with costs in both

courts.

Rehearing refused.

FENNER, J., (concurring.) I accept the conclusion announced in the French jurisprudence, and not contradicted by any contrary adjudication in this state, that the good faith which gives civil effects to marriages otherwise null may, in certain cases, arise from error of law as well as from error of fact. In such case, however, the error of law must possess two qualities— First, it must be actual; second, it must be excusable. Great caution and strictness should be exercised in admitting such pretensions. Yet, in the language of Toullier, the question of good faith vel non, in such a case, "presents always a question of fact, for the solution of which the judge must consider the particular circumstances of each case, and especially the condition of the spouses. In appreciating the facts of this case, the majority of the court concludes that the wife was actually ignorant of the law, and that her ignorance was excusable. I do not find that the learned judge a quo announced a different conclusion on the facts. His opinion was based exclusively on the principle that error of law cannot be the basis of good faith.

While the evidence is not altogether satisfactory to my mind, yet, considering the finding of my brethren; the minority and sex of the party; her ignorance of the English language; her nativity in France, where such marriages may be legalized; her recent arrival in this country; her seclusion in a convent; her subordination to the man who married her, who was greatly her senior, and to whose charge and protection she had been confided; the approval and advice, and participation, given by her parents to the marriage; and the fact that the marriage no longer exists, and no public interests are involved conflicting with those of the mother and her innocent offspring,—I find strong circumstances going to make the case peculiar and exceptional, and robbing it of serious danger as a precedent.

I feel, therefore, that I can concur without opening the door for the ready admission of such defenses, and with the full warning that I shall not recognize them in future cases, except when attended by such peculiar circumstances, or others equally strong.

MEINHARDT et al. v. MODE.

(Supreme Court of Florida. January 21, 1889.)

1. NEW TRIAL-OBJECTIONS TO VERDICT-INSUFFICIENT EVIDENCE.

When the verdict of the jury is clearly against the evidence, a new trial should ⚫be granted.

2. TRIAL-MISLEADING INSTRUCTIONS.

A charge of the court which may have misled the jury, and which may have caused the jury to arrive at a wrong conclusion, is cause for reversal.

(Syllabus by the Court.)

Appeal from circuit court, Duval county; JAMES M. BAKER, Judge.
Call & Jones and C. P. & J. C. Cooper, for appellants.

MITCHELL, J. The case before us has been before this court before. Meinhardt v. Mode, 22 Fla. 279. The case then stood upon appeal from the circuit court by Meinhardt Bros. & Co., who were plaintiffs in the court below, and it was reversed; the court holding that Mode, the appellee, was liable upon his telegram of the 17th of October, 1882, in which he authorized the plaintiffs to draw on Hannah Mode for amount of judgment in favor of Kaufman v. Myers, $227.83. The cause was again tried, and resulted, as before, in a verdict for defendant, and is again here upon appeal.

The pleadings at the last trial were identical with the pleadings at the former, except that, subsequent to the former trial, the defendant had filed an additional plea, in which he set up that said telegram of the 17th of October, 1882, was obtained through false pretense communicated through said telegram to the defendant by the plaintiffs.

This plea, if sustained by the evidence, was a complete bar to the action. But was it sustained? The alleged false pretense so communicated to the defendant consisted, as contended by the defendant, in that the payment of said sum of money to Kaufman would relieve one Myers, who was mutually indebted to plaintiffs and Mode Bros., of the necessity of making an assignment of his property, when in truth and in fact said assignment was then made, and made to the advantage of the plaintiffs, and that the existence of the assignment was fraudulently concealed from the defendant, and that there was no necessity for Myers to make the assignment. The evidence shows that Myers was engaged in mercantile business at Palatka, Fla., whence the telegram of the 16th of October, 1882, was sent to Mode Bros. by Hess, agent for plaintiffs, and that Kaufman, Myers, and the plaintiffs, by Hess, were the only parties to the transactions under consideration then present. That they were present on the ground at the time, and in a position to know what was transpiring in regard to the transactions between Kaufman and Myers, will not, we think, be disputed. Hess states that before he sent the telegram of October 16, 1882, to Mode Bros., the sheriff had taken possession of Myers' stock of goods, and that at the time he knew nothing of any assignment; that he was the agent of plaintiffs; and that he had nothing to do with forcing Myers to assign. If Hess' testimony was not true, that fact was susceptible of proof. As shown by the testimony, Myers was present at the time the transactions testified to by Hess occurred, and that he (Myers) was a brotherin-law of the defendant; and there is nothing to show that the relations between Myers and Mode were not of the most friendly character; and if Hess misstated any fact in regard to the seizure of Myers' goods by the sheriff, of the assignment made by Myers, or the sending of the telegram of the 16th of October, Myers was in a position to know that fact; and, if any of the statements of Hess in regard to said transactions were untrue, that fact could have been shown by the testimony of Myers; and yet the defendant did not produce Myers as a witness in the case; and it is reasonable to conclude therefrom that

Myers would, if produced as a witness, have corroborated the evidence of Hess. By the testimony the additional plea was entirely overthrown, and the case there stands as if said additional plea had never been filed. The testimony at the last trial was substantially the same as at the former; and, as this court held in Meinhardt v. Mode, supra, that the verdict of the jury in the former trial was against the evidence, we can but hold to the same opinion now. We see no cause for changing it.

The record shows that the circuit judge gave two charges, or paragraphs of the same charge, to the jury at the trial, both at the instance of the defendant. The second of these charges was withdrawn by the defendant, and hence it will not be considered. This second charge, as we understand it, was intended to apply to the question as to whether the defendant or Mode Bros. were liable upon the telegram of October 17, 1882; and, the charge being withdrawn, counsel for appellants contend that all the testimony and the charge (which was withdrawn) in relation to Mode Bros.' connection with the transaction should have been stricken out by the circuit court, but, if so, motion to have the charge and testimony stricken out should have been made at the trial. It is too late now to object that they were not stricken out.

Appellants' counsel contend that the said first charge of the court intimated to the jury what their verdict should be, and that the charge was misleading. Upon a fair consideration of the charge, the contention that it intimated to the jury what their verdict should be is not sustained; but, in our judgment, the charge, taken as a whole, may have misled the jury in this: As this was the only charge given; there being no instruction as to what would constitute a "false pretense" or misrepresentation on the part of the plaintiffs, which, it is contended, induced the defendant to send the telegram of the 17th of October, authorizing plaintiffs to draw on Hannah Mode for the amount of the Kaufman judgment; nor was there any instruction that if the telegram was not procured through false pretense, etc., as contended, the defendant was bound thereby, in case the plaintiffs had, on the strength of said telegram, taken up and settled the judgment against Myers in favor of Kaufman; nor is there anything in the charge which, under any given circumstances, would authorize the jury to find for the plaintiffs to the amount of the Kaufman judgment, which was calculated to mislead the jury.

As the case will have to be reversed for the reason that the verdict was against the evidence, and that the charge of the court may have misled the jury, we do not think it necessary to consider the other questions raised therein.

The judgment is reversed.

BROWN et al. v. WHEELER & WILSON MANUF'G Co.

(Supreme Court of Florida. January 25, 1889.)

APPEAL-BOND-WHEN GIVEN.

Where an appeal at law is entered during the term of the circuit court at which the judgment appealed from was rendered, but the appeal-bond is not given until after the expiration of 30 days from the adjournment of the term, the appeal will be dismissed.

(Syllabus by the Court.)

Appeal from circuit court, Bradford county; JAMES M. BAKER, Judge. Action by J. C. Brown and others against the Wheeler & Wilson Manufacturing Company. Judgment for defendant, and plaintiffs appeal. Defendant moves to dismiss the appeal.

Thos. E. Bugg, for motion. A. W. Cockrell & Son, contra.

RANEY, C. J. Judgment for appellee, April 6, 1887, in an action at law. Appeal entered in open court to the then ensuing June term of this court v.5so.no.24-43