part on his legitimacy or on the validity of a marriage, being domiciled in England or Ireland, or claiming any real or personal estate situate in England, may apply by petition to the court for divorce and matrimonial causes, praying the court for a decree declaring that the petitioner is the legitimate child of his parents, and that the marriage of his father and mother, or of his grandfather and grandmother, was a valid marriage, or for a decree declaring either of the matters aforesaid; and any such subject or person, being so domiciled or claiming as aforesaid, may in like manner apply to such court for a decree declaring that his marriage was or is a valid marriage, and such court shall have jurisdiction to hear and determine such application and to make such decree declaratory of the legitimacy or illegitimacy of such person, or of the validity or invalidity of such marriage, as to the court may seem just; and such decree, except as herein-after mentioned, shall be binding to all intents and purposes on her Majesty and on all persons whomsoever.

II. Any person, being so domiciled or claiming as aforesaid, may apply by petition to the said court for a decree declaratory of his right to be deemed a natural-born subject of her Majesty, and the said court shall have jurisdiction to hear and determine such application, and to make such decree thereon as to the court may seem just, and where such application as last aforesaid is made by the person making such application as herein mentioned for a decree declaring his legitimacy or the validity of a marriage, both applications may be included in the same petition; and every decree made by the said court shall, except as hereinafter mentioned, be valid and binding to all intents and purposes upon her Majesty and all persons whomsoever.

III. Every petition under this Act shall be accompanied by such affidavit verifying the same, and of the absence of collusion, as the court may by any general rule direct.

IV. All the provisions of the Act of the last session, chapter 85, so far as the same may be applicable, and the powers and provisions therein contained in relation to the making and laying before Parliament of rules and regulations concerning the practice and procedure under that Act, and fixing the fees payable upon proceedings before the court, shall extend to applications and proceedings in the said court under this Act, as if the same had been authorised by the said Act of the last session.

V. In all proceedings under this Act the court shall have full power to award and enforce payment of costs to any persons cited, whether such persons shall or shall not oppose the declaration applied for, in case the said court shall deem it reasonable that such costs shall be paid.

VI. A copy of every petition under this Act, and of the affidavit accompanying the same, shall, one month at least previously to the presentation or filing of such petition, be delivered to her

Majesty's Attorney General, who shall be a respondent upon the hearing of such petition and upon every subsequent proceeding relating thereto.

VII. Where any application is made under this Act to the said court such person or persons (if any) besides the said Attorney General as the court shall think fit shall, subject to the rules made under this Act, be cited to see proceedings or otherwise summoned in such manner as the court shall direct, and may be permitted to become parties to the proceedings, and oppose the application.

VIII. The decree of the said court shall not in any case prejudice any person, unless such person has been cited or made a party to the proceedings or is the heir-at-law or next of kin, or other real or personal representative of or derives title under or through a person so cited or made a party; nor shall such sentence or decree of the court prejudice any person if subsequently proved to have been obtained by fraud or collusion.

IX. Any person domiciled in Scotland, or claiming any heritable or moveable property situate in Scotland, may raise and insist, in an action of declarator before the court of session, for the purpose of having it found and declared that he is entitled to be deemed a natural-born subject of her Majesty; and the said court shall have jurisdiction to hear and determine such action of declarator, in the same manner and to the same effect, and with the same power to award expenses, as they have in declarators of legitimacy and declarators of bastardy.

X. No proceeding to be had under this Act shall affect any final judgment or decree already pronounced or made by any court of competent jurisdiction.

XI. The said Act of the last session and this Act shall be construed together as one Act; and this Act may be cited for all purposes as "The Legitimacy Declaration Act, 1858."

734

GENERAL APPENDIX II.

BELOW is printed at length the leading American decision upon the application of Personal and Real Statutes.

Saul v. His Creditors. (a)

APPEAL FROM THE COURT OF THE FIRST DISTRICT.

Marginal Note of Reporter.

Subsequent statutes do not repeal previous ones by containing different provisions. They must be contrary.

The jurisprudence of Spain makes a part of the law of Louisiana. The rules in relation to real and personal statutes, apply also to unwritten laws or customs.

Where the personal statute of the domicil is in opposition to a real statute of situation, the real statute will prevail.

Contracts are governed by the laws of the country where they are made, but they cannot be enforced to the injury of a State whose aid is required to carry them into effect.

Nor where they are in opposition to the positive laws of that State.

In the conflict of laws where it is doubtful which should prevail, the court that decides should prefer the law of its own country to that of the stranger.

Personal statutes of the country where a contract is sought to be enforced, may sometimes control the personal statutes of the country where the contract was made.

The law relating to acquests and gains made during marriage, is a real, not a personal statute, and governs marriages made in other countries, where the parties reside in this, as to all property acquired after their removal.

But they yield to an express agreement made on entering into marriage in another country.

The contract of pledge of incorporeal things will not give a preference unless evidenced by an authentic act, or one duly

(a) 5 Martin's Rep. N. S. 569-608.

recorded at a time not suspicious. And this contract sous seing prive, though made long before insolvency, cannot be recorded at a time when the debtor would be incapable of giving a preference by any act of his.

Porter, J., delivered the judgment of the Court. The tableau of distribution filed by the syndics of the insolvent, was opposed in the court of the first instance; and the opposition being sustained, an appeal has been taken to this court by the syndics, by the bank of the United States, the Bank of Orleans, and the Bank of Louisiana.

The claims admitted by the judge, a quo, and which are now contested there, are :—

1st. That of the children of the insolvent, who claim as privileged creditors, for the amount inherited by them from their deceased mother.

2nd. That of John Jacob Astor, of New York, who avers that he is a creditor of the insolvent for the sum of $64,000, and that he has a privilege on 751 shares of stock of the Bank of Orleans, which were pledged to him, and now make a part of the estate surrendered.

3rd. That of Alexander Brown and Sons, of Baltimore, who also assert a privilege on bank-stock, which they state was pledged to them by the insolvent for the security of a loan of $9,000 and upwards.

The different questions of law arising on these claims, have been argued with an ability worthy of their importance. Some of these questions are now presented for the first time for decision; and those which have been already before the Court and acted on, on other occasions have been examined with so much care by the counsel, and have received such additional light from the laborious investigation bestowed on them, that they come upon our consideration with as much freshness, as if this was the only time our attention had been drawn to them.

We shall take them up in the order in which they have been already stated; and first as to the claim of the insolvents' children.

From the facts admitted by the parties, which admission makes the statement on this appeal, it appears, that Saul and his wife intermarried in the State of Virginia, on the 6th of February, 1794, their domicil being then in that State; that they remained there until the year 1804, when they removed to the now State of Louisiana; that they fixed their residence here, and continued this residence up to the year 1819, when the wife died; that after their removal from Virginia, and while living and having their domicil in this State, a large quantity of property was acquired, which at the death of the wife remained in the possession of her husband, the insolvent.

The children claim the one half of the property, as acquests and gains, made by their father and mother in this State. The appellants contend, that as the marriage took place in the State of Virginia, by whose laws no community of acquests and gains was permitted, the whole of the property acquired here belonged to the husband.

This statement of the matter at issue shows that the only question presented for our decision is one of laws; but it is one which grows out of the conflict of laws of different states. Our former experience had taught us, that questions of this kind are the most embarrassing and difficult of decision, that can occupy the attention of those who preside in courts of justice. The argument of this case has shown us, that the vast mass of learning which the research of counsel has furnished, leaves the subject as much enveloped in obscurity and doubt, as it would have appeared to our own understandings, had we been called on to decide, without the knowledge of what others had thought and written upon it.

Until the discussion of this cause, it was generally understood by the bar and the bench in this state, that the question now agitated was well understood in our jurisprudence; and that from the period married persons from other states moved into this, the property acquired became common, and was to be equally divided between them at the dissolution of the marriage. We have not, therefore, been insensible to the argument so strongly pressed on us, that the question being already settled by the decisions of the tribunal of last resort in the state, the subject ought not to be opened again, and that the most important interests of society require there should be a time when contested points of jurisprudence may be considered as at rest. But these considerations

are not in this case of sufficient weight, to preclude a re-examination of the principles on which the doctrine already stated has been established. A sufficient period has not elapsed to enable it to derive much authority from the acquiescence of others. The decision of the court cannot be supposed to have influenced parties entering into the marriage contract, or greatly to have affected any important interests in society. It applied only to married persons emigrating from other states, whose exertions or industry cannot be supposed to have been much changed, by the anticipation of the property going in one direction or the other; whose habits were formed before they came here, and no doubt remained the same after their migration, as before. We shall, therefore, proceed to the examination of the question, as if the case was now presented for the first time, and, we trust, without any bias that might be supposed to exist on our minds, from the opinions we have already expressed.

The investigation we are about to make will be best conducted by first examining our own statutes.