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APPENDIX I. PAGE 260.

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 recorded at a time not suspicious. And this contract sous seing prive, though

(a) 5 Martins' Rep. N.S. 569–608.

S.c. 8 Louis. Rep. p. 678.

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:

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

2. 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.

3. That of Alexander Brown and Sons, of Baltimore, who also assert a privilege on bank-stork, 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 insolvent's 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 about 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.

The old Civil Code provided that every marriage contracted within this State superinduces of right partnership or community of acquests and gains. (Civil Code, 336, art. 63.)

Our Revised Code repeats this provision and adds another: that a marriage contracted out of this State between persons who afterwards come to live here is also subject to the community of acquests with respect to such property as is acquired after their arrival. (Code, 2370.)

If the acquests and gains in respect to which the present suit exists had been made under the dominion of the law last cited, there would be an end to any dispute about their distribution; but the marriage of the insolvent and his wife was dissolved by the death of the latter before the law was enacted.

It has been contended that, as the article first cited provides for a community of acquests and gains on all marriages contracted within the territory, it is an evidence the legislature did not intend there should be a community on marriages made without; inclusio unius est exclusio alterius.

It would be giving too much weight to the argument contrario sensu to adopt this construction. If the subject were one on which there had existed no previous legislation, it would certainly be fair to contend that, as the law-maker has affirmatively declared particular cases not enumerated should produce certain effects, this affirmative included the negative, that other cases not enumerated should not produce these effects; though even then this reasoning, which is founded on presumption, might yield to other circumstances, by which that presumption could be repelled. But when there already exists positive legislation on the same subject-matter providing for the very case which it is presumed is excluded, the argument loses almost entirely its weight. The law must then be interpreted by a well-known rule of jurisprudence, that an intention to repeal laws can never be supposed; that subsequent statutes do not abrogate former ones by containing different provisions on the same subject; they must be contrary to produce such effects. This rule, which is true in relation to all laws, is more particularly applicable to our codes, which were only intended to lay down general principles, and provide for cases of the most common occurrence. If, then, the provisions in our code cannot be considered to have repealed the former law, no argument can be drawn from them as to the intention of the legislature to do so, or their opinion on this subject. It is more than probable their thoughts were not turned to a case which is not of frequent occurrence. If they had intended to act on it, as the matter was, to say at least, doubtful, they certainly would not have increased these doubts by leaving their will to be inferred from an affirmative regulation on the same subject, but in relation to a different state of things. We are bound to believe they would have legislated directly on it, and have positively declared, as they have since done, what the rule should be when people married in another country and removed into this.

It being clear, then, that our own statutes furnish no guide for the

decision of this question, recourse must be had to the former laws of the country.

The positive regulations of Spain on this subject are contained in two laws; one of the Fuero Real, and the other of the Partidas.

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That part of the law of the Partidas which directly applies to the case before the Court is in the following words:-"E dezimos, que el pleyto que ellos pusieron entre si, deve valer en la manera que se avinieron ante que casassen, o quando casaron; e non deve ser embargado por la costumbre contraria de aquella tierra do "fuesen a morar. Esso mismo seria, maguer ellos non pusiesen, pleyto entre si; ca la costumbre de aquella tierra do fizieron el "casamiento deve valer, quanto en las dotes, e en las arras, e en las ganancias que fizieron, e non la de aquel lugar do se cambiaron." -Pt. iv. tit. ii. ley. 23.

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"And we say, that the agreement they had made before or at the "time of their marriage ought to have its effect in the manner they may have stipulated, and that it will not be avoided by the custom "of the place to which they may have removed. And so we say it "would be, if they had not entered into an agreement; for the cus"tom of the country where they contracted the marriage ought to "have its effect as it regards the dowry, the arras, and the gains they may have made, and not that of the place to which they may

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"have removed."

Some verbal criticism has been exercised on this law. It is contended by one of the parties that it only intended to provide for the gains made before the removal of the married couple; or, at all events, that the words used leave the sense doubtful. By the other, that it regulates all, whether made before or after they left the country in which the marriage took place. The expressions used, though not free from all ambiguity, as the apppellants have argued, we think ought to receive the construction for which they contend. The law was so understood by the commentators of that day, and the preceding parts of it, compared with the clause in which the obscurity is said to exist, serve to support this interpretation.

If these provisions in the Partidas stood alone, they would admit of a more favourable construction in support of the ground assumed by the counsel for the syndics than they can receive when taken in connection with the law of the Fuero Real, which is in the following words:

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"Toda cosa que el marido y muger ganaren o compraren, estando "de consuno, hayanlo ambos por medio, &c."-Novissima Recop. lib. x., tit. iv. ley. 1.

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Everything which the husband and wife may acquire while "together shall be equally divided between them."

The codes in which these laws are found were composed under the authority of Ferdinand the Third and his son Alphonso the

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