The Lawyers Journal

Media

Part of The Lawyers Journal

Title: The Lawyers Journal
Issue Date: Volume XIV (No. 5) May 31, 1949
Publisher: Sen. Vicente J. Francisco
Year: 1949
Language: English
Subject: Philippines--Periodicals.; Constitutions--Philippines--Periodicals.
Rights
Place of publication: Manila
extracted text: Jr THE ~A WYERS 1 1 J 0 U R N A h ._. ' • • • MANILA. PHILIPPJNES • • • ~ VOLUME XI V 1 11111 ' "t. VICENT! J FRANCI SCO EJil r & Publisher ADELA OCA MPO 8usinos. Man11911r LEON T. ROSALES RODOLFO J. FRANCISCO • RICA RDO J .. FRANCISCO Adverfoing Solicitors TH E LAWYERS JOURNAL ;, publi.h ed rnorolloly by Sen, Vicente J. Frenchco, lor·mer d eli;g11h1 to tl1e Condi tulio~,1 Convention, preclicing ,1t lo•ney end Founder, frdncilco l aw Scho:>I SUBSCr!IPTION /,ND /,DVE RTISING RATES ~ Sub,.:r ip lion: 1"3b.OO ~ yedf. Advedisio\g: Full pac;~-PIOS.00: Hdl p11ge-f'b500: One·fourlh µ11 <;i 11-1>45.00; On11-eightl1 p~ge-P35.00: One- si.tee nth pege-P2S.OO. Ent ere d u •econd cl~u mdl mailer t1! th e M11nil11 Po1t Oflic11. EDITORIAL AND BUSINESS OFFICE· R-324 Semanillo Bldg., Escol le, Menil .. FOUR PESOS PER COPY FOR NONSUBSCRIBERS MAY J I , 1949 EDI TORIAL: Suggestions for the Bar Examinations 229 EQUITY IN TH E NEW CIVI L CODE- By Jorg e Bocobo 230 TH E JU DICIARY ACT OF 1948-With Annotations- (Conli nue d from last issue) 231 PH ILI PP IN E DECISIO NS: Abrea vs, Lloren-Juslice Ozaeta Concurring Opinion-Ju~lice Perfecto Lopez VI. De Jesus-Ju1tice Paras Yap vs. The Solicjtor General-Justice Perfecto Garcia, et al. vs. S.,ntos, el .,1,-Justice Paro People vs. Barrerd de Reyes-J ustice Perfecto \ Dissenting Opinion-Justice Tuason Z<1mora vs. Dingl<1s<1n, et <11.-J uslice Pablo 247 "' 249 250 251 252 254 256 Gubagaras VI. West Coast Life lnsurance-J uslic;e De La Rosa 257 Dissenting Opinion-Justice Jug o 2b2 Concurring Opinion-Ju,tice Torrns 2b2 ACCEPTANCE SPEECH OF SENATOR VICENTE J. FRANCISCO 2b5 DECISIONS OF THE DIRECTOR OF PATENTS 266 JOSE ABAD SA.NTOS : AN APOTHEOSIS-By Abrah<1m F. Sarmiento 2b8 AN ACT TO ORDAIN AND INSTITUTE THE CIVI L CO DE O F THE PHILIPPINES-(Conlinued from last issue) 270 THE BENCH AND BAR !N NEWS: ~ Dean Jorge Bocobo -284 Judge Ceferino de 101 Santos 284 Director Celedonio S. Agrava 285 Director fastaquio- Balagtas 285 NUMBER S consider off set printing "'"'~" c,l'-..;:i ~ "'" ..;:i~ ~ rv~" "'" ..i.. 0 ~I'--0-1'-~ l'-'Q<,, 1'. ~ <,, • ·"' \ '<o '~ ,,,~" ~" "' oc;. <v"~ o"' ~ FOR MORE SPEED '< /I CARMELO & BAUERMANN, INC. ' M 0 RE v 0 Lu ME \ MORE VERSATILITY OFFSET LITHOGRAPHERS e PRINTERS 2057 A Z CARR A G A • M A N I l A, P H 1 l I P P I N E S CENTRAL IRON WORKS All kimls of \Viwlow Grills, Jromloo1·~ arnl Glass Contractor. " * Cffice ; 3215 Rizal Ave. Ext., Manila \I 11Quality Above All" When ti lt cords "creep" PULL the SIJOHT cord, and "CLICK" the.v come back level! First of all, tilt-cords on our Venetian Blinds can never get out of reach ... because we build them with Lorentze~ LEVOLORS to tilt them. Then, when the cords DO start to "creep" (as they will) . . . you simply pull the SHORT cord all the way- and "CLICK", they com back LEVEL! The LEVOLOR tag with the Good Housekeeping Seat . and the limit-beads on the cords . . . guarantees that these blinds WORK as well as they LOOK. Thei·e's nlways something new between you and the sun with - "ZIP VENETIAN BLINDS" l\lain Office: 133~ Felix Huertas, Sta. Cruz 424 Estero CeJ!,'ado 719 Flol"ida, Malate RUFINO KING, Prop. Manila, Philippines SUGGESTIONS FOR THE BAR EXAMINATIONS It is perhaps inevitable that, every time the results of the periodic bar examinations are announced, there shou1d be a certain amount of criticism and complaint. Those who were unsuccessful OL' who were not so successful as they expected to be, among the candidates themselves and the schools that trained them, naturally feel dissatisfied with the present system and the way it is conducted. We are not concerned now with the necessity or desirability of requiring prospective lawyers to pass a state-supervised examination before admission to the bar. There are many valid arguments for and against it. However, if the present system is to be retained, as in all probability it will be, certain changes may be advisable. To start with, the schedule of subjects in the examination should be brough~ up to date. Law has ·undergone great and significant developments in the past few years, reflecting the evolution of the modern concept of government and the rights and duties of the individual citizen. Our own recent history proves the increasing importance of such subjects as sociil legislation and taxation and, indeed, the corresponding authorities have given due recognition to their importance by making them separate subjects in the law curriculum. Yet, strangely enough, the Supreme Court has not yet seen fit to give these subjects the emphasis they deserve in the examinations for the bar. Taxation, it is presumed, is lumped with the whole range of politi! cal law while social legislation seems to have no place at all, since the Civil Code provisions on torts and the other codal provisions on the contract of employment ·and the relation of master and servant are woefully inadequate and antiquated. There is no denying the fact that the bulk of our social legislation is contained, not in the codes, but in special laws. The result of this notable gap in the bar examinations is that the average student, who is understandably concerned mainly with being admitted to the bar, tends to treat these subjects lightly and in passing, as mere incidents of the course. Only by including them as separate ·subjects for examination, therefore, can the student be compelled to give them the importance they deserve. . This will make, we submit, not only better lawyers but better citizens. At present lawyers tend to leave problems of taxation to accountants because they themselves feel inadequately prepared to handle them. Many a practising attorney has also regretted not having devoted more time to the study of social legislation, which continually increases in complexity and extent. It is indeed regrettable that these two subjects, with which even the ordinary laymen should be familiar if he is to fulfill his duties as a citizen, should be so neglected even by the members of the legal profession, who might otherwise supply the lack with their competent advice. With reference to the present procedures followed in the examinations, the compensation given to the examiners seems to be inadequate, amounting only, as we are informed, to five hundred pesos for each examiner for the entire tedious and exacting task of preparing fair and balanced questionnaires, attending the various deliberations of the board, and-worst of allgrading the enormous number of papers which are submitted in every examination. Since there are usually about one thousand candidates in each of these tests, the individual examiner can expect to receive a compensation of about fifty centavos for correcting each paper, not to mention his other duties. The question of compensation may appear to be relatively minor but, upon reflection, its importance will be readily seen. The bar examinations would be obMay JI, 1949 viously of no use whatever if they were not conducted by skilled and successful members of the bar. The latter are naturally extremely busy with the practise of their profession and it is unfair to expect them to devote all their time to the grading of the vast number of papers, at the unattractive rates of compensation now prevailing. They could not be blamed therefore if they should do this work hurriedly, and even with a certain degree of impatience and carelessness, or even if they should delegate the tiresome and boring task to office assistants. This does not seem to be fair either to the candidates or to the examiners themselves. We have no intention of criticizing the examiners in past tests who doubtless and to all appearances have fulfilled their duties splendidly and at great personal sacrifice. But we do wish to point out that the purposes of the bar examinations would be better served if the work of the examiners is adequately compensated. In this connection, another change from the present system may also prove desirable. As we understand it, the proceeds of the examinations, derived from the fees paid by the candidates, are now devoted to the expansion of the library -0f the Supreme Court. That library is unquestionably one of the best and most complete in the country and there is, of course, ever-y reason to keep up its splendid standards. In stark contrast, however, many, if not most, Courts of First Instance in the Republic are not equipped with even the most elementary treatises and texts; sometimes the libraries of these tribunals are confined to a set of Philippine Reports and Official Gazettes. Since the great proportion of litigation in this country probably begins and ends in these courts, it would seem logical and conducive to the interests of justice to give them also adequate reference sources. If the central government is unable or unwilling to appropriate sufficient funds for this purpose, the Supreme Court would be doing the administration of justice in the Philippines a signal service if it should channel at least part of the proceeds of the bar examinatio.ns to this purpose. One last suggestion. We have never been able to understand the practical necessity of c·oncealing the names of the examiners. Those names inevitably become common knowledge sooner or later and, if the purpose of the secrecy is to avoid the use of unfair influence and pressure on the examiners, it is obvious that that purpose is not effectively served in reality. On the other hand, the present system would seem to imply a reflection on the integrity of the examiners. Surely, if the Supreme Court has sufficient faith in them to appoint them to their posts at all, it should be consistent and extend that faith completely. At any rate there is no·fool-proof guarantee against corruption. If an examiner should desire to take advantage of his position, he could do it under the present system just as easily as he could if his name were not concealed. As it is now, therefore, no assurance of complete integrity is gained while the examinations are allowed to remain in an ambiguous atmosphere of calculation and intrigue. There is another potent reason why the names of the examiners should be made public before the examinations take place, and that is, to enable the public, particularly the bar candidates, to object to the selection of a particular examiner upon good ground or cause in the same way that the public is enabled, by the publication of the names of the candidates before· the examinations, to object to the admission to the bar examinations of any candidate who is unfit to become a member of the bar by reason of moral turpitude. 229 EOlJITY IN THE NEW CIVIL CODE One of the principal reforms in the new Civil Code is the emphasis laid upon equity and justice as against striCt legalism or form. The project recognizes that more significmt and more far-reachi ng than the formulation of legal rules, justice and equity should prevail in any legislation. In working out rhe rules ro be embodied in the proposed Civil Code, the Code Commission drew principally from two sources: ( l) rhc Anglo-American equity jurisprudence and (2) the general principles of natural justice. Among the branches of Anglo~America n equity jurisprudence which are incorporated into the new Civil Code are those relative to implied trusts, estoppcl, quieting of title and reformation of instruments. A nd among the features taken from natural justice are those which relate to natural obligations, reduction of iniquitous penalty, recovery in case of substantial performance, wilfully causing damage in a manner contrary to morals, the doctrine against unjust enrichment (which includes rhe addition.11 quasi-contracts found in the new Code). the :i.warding of moral damages, and certain rules relative to illegal contracts. These various topics will now be discussed briefly. I. ANGLO-AMERICAN EQUITY. 1. Implied T111sls.-The subject of implied trusts is :i very importmt one in Anglo-American jurisprudence. It is unknown in the present Civil Code. It is developed in :irticles 1461, 1462, :ind :irticles 1467 to 1477- of rho:: proposed Civil Code. Implied trusts come into being by operation of l:iw. Here are three examples of implied trusts found in articles 1470, 1472 and 1474, which re:id as follows: "Art. 1470. If the price of J sale of property i•loanedorpaidbyoneperson for the benefit of Jnothn and the conveyanq is mAde to the lender or payor to secure th~ payment of the debc, a trust ui•H by operation of hw in favor of the pcrsor>S to whom the money is loaned or for whom it is paid. The latter nuy red...,m the propeny and compel a conveyJncc thereof to him." "Art. 1472. If two or more persons agree 10 purchase property and by whom consent the lcg•l ticle is taken in the name of one of them for the benefit of al!, a trust h created by force of hw in favor of the others in proportion to the intere1t of och." "Art. 1474. If an absolute converance of property is made in order to secure the performance oi an obligation of the grantor toward the grantee, J crun by virtue of law is esubH1hed. If the fulfillment of the obligation is offered by the guntor when ic become• doe, he may demand the reconveyance of the property to him." 2. E~toppef.-Therc seems to be a gen~ era! impression in the legal profession in the Philippines rhat estoppel is essentially a part 230 By JORGE BOCOBO of remedial law. This is an error, because estoppcl is a division of both substantive and adjective law in the Anglo-American legal system. T he subject of estoppcl in its substantive aspect is developed in articles 1451 to 1469 of the p(oposed Civil Code. Here is :in example of estoppcl as applied to substantive law: "Art. 14H. When a pen<l n who is the owner of a thing se!h or a li~natc• and deli,·ers it, and later the seller or grJntor acquires tide thereto, such tide passes by operation of hw to the buyer or grantee." 3. Quieting ·of Title.-The quieting of title is a remedy which is resorted to in American b w in order to remove a cloud on tide to real property. Article 496 provides: "An. 496. \'\1 hene\•er there is a cloud on tide to real property or any interest therein, by ruson of any instrument. record, d.im, cncumbunce or proceeding which i• app.ircntly valid or effecti••e but is in truth and in face invJlid, incffrctive, voidable, or unenforceable, and may bepreiudicial to u id title, an action may be brought to remove such cloud or to quiet the titk "An action may also be brought to prevent a cloud from being can upon title to real property oranyintcrentherein." 4. Rl'/on111.1/io11 of lnstrumrnfs.-This is a very import.mt remedy in order to carry out the real intenti'on of the parties to :i contract. This subject is dealt with in art· ides 1379 to 1389 of the draft of the Civil Code. Article 1379 cxp!Jins the nature of this remt'dy :is follows: "Art. 1379.-Wlicn. there luving been a muting of the minds of the parties 10 a contract, their rrue intention is not expres!Od in the instrument purporting to cmbodr the >grecment, by reuon of mistak~. fr•ud. inequitabk conduct as >tcident, one of the parties may ask for the reformation of the innrument to the end du1 such true intention may be expressed. "If mi1uke, fr.ud, inequir.bl~ conduct, or accident hu prc,·cntcd a meeting of the minds of the panic" the proper remedy is not reformation of the instrument but annulment of the contract." Article I J 8 5 is of immediate practiol v:alue as a remedy agJinst the oppressive practices of many lenders who impose upon borrowers the contr::ict of s:ale with paclo dr rr!ro. S:aid article provides: "An. IJ8f. If two puties agree upon the rnortgage or pledge of rcal or pcrsonal property, bot the instrument states that the proP"rt)' is sold absolutely or with a right of repurchu~, reformation of the in11roment is proper." IL GENERAL PRINCIPLES OF JUSTICE. T he followi ng subjects, among others, :ire trelted of in the proposed Civil Code by way of carrying out general principles of narural justice as ::i.gainst legalism and technicality. 1., Natura{ Obligatiom.-The present Ciyi\ Code has practically abolished the old institution called "natural obligations." The drafters of the Civil Code in force believed that by a careful" formulation of rhe provisions concerning illegal contracts, this problem of natural obligations would be solved. However, the present Civil Code fai ls to bring out the proper solution when certain cases arise that call for the ancient doctrine of natural obligations. T he codes of France, Italy, Germany, Louisiana :ind Argentin:1, among o_thcrs, deal with this subject. The project of Civil Code defines narur:il oblig:itions as follows: "Art. !HJ. Obligations ore ci,·il or natural. Ci,·il obligations gi1·e a right of ~ction to compel their performance. Natur•l oblii;ations, not being bsed On positive law but on e<juity and natural bw, do not grant a right of action to enforce their performance, but after voluntary fulfillment by the obligor, they ~uthorize the retention of whac has b~n delivered or rendered by reason thereof. Some natural obligations HC 1et forth in the following articles." Illustrations of natural obligations are fou nd in articles 1444, 1448 and 1449. "An. 1444. When 2 right to sue upon a civil obligationla$lapS"dbyextinctive prescription, the obligor who voluntarily performs the contract can- · not recover wh~t he has delivered or the value of the Jen·ice he has rendered." "Art. 1448. When, after an ~ction to enforce a civil obligation has failed, the defendant ~·olunnrily perfoms the obligation, he cannot demand the return of whn he has delivered or the plyment of the value of the .crvice he hn rendered." "Art. 1449. 'Vhen a testate or intestate heir volunurily pap a debt of the decedent eitceeding <h~ nluc of the property which he received by will or by the law of intestacy from the cscace of the dccu1ed, the payment is ulid and cannot be resc inded by 1liep3yer." 2. Pe11afty.-At the present time, the Civil Code provides for a reduction of the penalty only when there has been a partial or irregubr performance of the contract (Art. 1154). However, under the new Code it is not necessary that t here should have been a partial or irregular performance. A penalty may be reduced if it is found by the courts to be iniquitous or unconscionable (Art. 1249). Moreover, :i.rticle 2247 provides as follows: "Art. ~247. Liquidaicd damages, whether intended as an indemnity or a penalty, •hall bl! equitably reduced if they are iniqui1ousorun<;onscionabk" }. S11bsla11fial Per/a. 1111111cr.-The new Code docs not insist upon a strict fulfillment of the contract, it being s.ufficient t hat there has been a substantial p~rfor m:incc in good faith, although damages suffered by the obligec are paid. Article 12 5 4 reads :ts follows: (Co11tit111rd 011 prlge 23 I) May Ji, 1949 THE JUDICIARY ACT OF 1948 (With Annotations) [CONTINUED FROM LAST IssuE] SEC. 46. Clerks a11d other snbordinate employees of Courts of First Iustance. - Clerks, deputy clerks, assistants, and other subordinate employees of Courts of First Instance shall, for administrative purposes, belong to the Department of Justice; but in the performance of their duties they shall be subject to the supervision of the Judges of the courts to which they respectively pertain. authorize any suitable person to act as his special deputy and in such capacity to perform such functions as may be specified in the authority granted. NOTES l. Appointment of subordinate employee~. 2. Clerks of court departments. S. Clerk of Court as commissioner to receive evidence. The clerks of Courts of First Instance shall be appointed by the President of the Philippines with the consent of the Commission on Appointments. No person shall be appointed clerk of court unless he is duly authorized to practice law in the Philippines: Provided, however, That this requirement shall not 'affect persons who, at the date of the approval of this Act, are holding the position of clerk of court, nor those who have previously qualified in the Civil Service ex.:. amination for said position; 3. Duties of clerk to judge. -4. Acts under direction. L Matters requiring judge's approval. 6. Function of judge performed by clerk. 7. Clerk of court has no authority to refuse admission of record on appeal. 9. Oath of Clerk of Court as commissioner. 10. Officer of Court may be punished for contempt. 11. Compensation. 12. Negligence of Court's personnel. 13. Liability. 1. APPOINTMENT OF SUBORDINATE EMPLOYEES. Where a statute vests the appointive power in an official other than the judge, such enactment controls. However, under particular statutory regulations the court may have the power to recomThe clerk of a Court of First Instance may, by special written deputization approved by the judge, EQUITY ... (Co11tin11ed from page 2JO) "Art. IH4. If the obligation hu been 111bstantially performed in good faith, the obligor may recover as though there had been a strict and complete fulfillment, len damages suffued by the ohl.igee." -4. Immoral Acts.-Article 2} provides as follows: "Art. 2l. Any per!On who wilfully couses loss or injury to another in a manner t hat is contrHY to morals, good cus1oms or public poliq shall compensate the bttcr for the d•mage.'• This provision has been taken from article 826 of the German Civil Code, with a certain modification, by adding "good customs" and "public policy." An illustration of the scope of article 23 is the following: A man seduces a 19year old girl who becomes pregnant. Under the Revised Penal Code there is no crime inasmuch as the girl is above 18 years of age. Therefore, no damages can be recovered by her. But by article 23 she can recover damages, because the defendant is guilty of a willful and immoral act, although positive law has not been violated. The above article brings within the sphere of statutory law all immoral acts wilfully committed which cause damage, but which are not denounced by any statute. This provision fills innumtrable gaps in our corles :ind statutes, which of course cannot foresee every wrongful deed. May JI, 1949 S. U11j11sf E11richml'11f. - The ancient doctrine against unjust enrichment is restated in article 24, which reads thus: "Arr. 2.4. Every pt'rlOn who through an act of performance by another, or any orhu means, acquires or comes into possesiion of something at d1e upense of the bttu without just or legal ground, shall return the s.me 10 him." Although the present Civil Code implements the above doctrine in some instances, still it docs not formulate a principle on this point. Hence, the need of article 24. The maxim concerning unjust enrichment finds a m:mifest:ition (among other subjects) in the additional quasi-contracts under the new Code. Herc are three examples of unjust enrichment, for which the new Civil Code offers solutions under the principle of quasi-contracts: "Art. 2188. When during a fire, flood, storm. or othercahmil)., property is sand from destruction by another person without the knowledge of 1he crwncr, the latter is bound 10 pay 1he formtr iu11 compenution." Art. 2.189. When the government, upon the failure of my person to comply with hnlth orufety regulations conccrnig property, undcrtJkes to do the necessary work, e"cn over his objection, he sho ll be liabletop:iy 1hcn:.penses." Art. 2191. Any person who is constriined to pay the taxes of another shall be entitled to reimbursement from the Iner." 6. Damages.-The new Civil Code awards moral damages. The usual objection to the giving of moral damages is that they cannot be pecuniari\y estimated. This is purely a technical argumenr. Justice should be done by :idjudicating some amount of damage, which should be left to the discretion of the court. 7. Illegal Co11tracts.-Finaily, there is a general principle that when borh pJrties are to biame neither may enforce the same. However, the new Civil Code makes certain exceptions: For example, articles 1434 to 14 3 6 provide: .. Art. 1434. Wlocn munc)' is paid or property deli•·ered for all illcg•l purpose, the contract ma)' be repudiated by one of the puties before the purpose h>s been accomplished, or before my damage hubuncHued to a third person . In such case. the courts may, if the public interest will thus be subserved, allow the party repudioting the "tontnCt to recover the money or prolX'rty." "Art. 1435. Where one of the parties 10 an illegal contract is incapiblc of givingconsenr, the courts may, if the inurest of justice so demands, allow recovery of money or property deli"ered by the incap•~itated person." .. Art. 1436. When 1he agrccmenr is not illegal per u but is merely prohibited, and the prohibition by the law is designed for the protection of the phintiH, he may, if public polky is thereby enhanced, recover what he has paid or ddivered." CONCLUSION The foregoing brief exposition, I hope, will give an idea of how the new Civil Code strives to temper the rigor of legalism in order that justice may triumph. After all, the paramount aim oi the courts is to do justice, which should not be defeated by any technicality, or by, the letter of the law. 2JI The Judiciary Act of 1948 mend ;1. person for the ;1.ppointment, or m1y determine the uumber . of lttend:mts, or may require the appointment of as many as are necessary. Moreover, a court may appoint attendants when a peculiar emergency demands, or \\'here the agency vested by law with the power of :ippointmcnt neglects or refuses to perform its duty; although the right to appoint under such circumstances is only co~ rxtensive with the necessity and ce:ises with it. 21 C.j.S. 219. 2. CLERKS OF COU RT DEPARTMENTS. Where a court is divided into dep:irtments each constitu ting :i separate court, the clerk of each dep:inment is reg:irded :is the clerk of that court. 14 C. J.S. 1217. 3. DUTIES OF CLERK TO JUDGE. While the duties of a clerk to a judge :ire not defined by bw, they :ire clearly of a person:il , :md mainly of a confidenti:il, n:iture. Ibid, 1242. 4. Acn UN DER l)JR ECTION . "The clerk of the court is :i .mere ministerial officer, who can only act upon the direction of the court, ;1.nd must find authority in the decision in order to enter judgment." Marc vs. PinktJrd, 2JO N.Y.S. 765, 766, JJJ Misc. SJ. Attend:ints and assistants must act in accordance with the judge's direction, reg:irdless of the instructions of any other person. 21 C.J.S. 221. Judges could require deputy court :ittend:ints to assist sheriff or other county officer. H111m111111 vs. TIJOmas, 234 N.Y.S. 581, l J4 Misc. 75. In the performance of his duties as the ministerial officer of the court, he is subject to the control of the court; and if he fai ls or refuses to perform any of such duties, when directed so to do by rhe court he may be punished for contempt. On the other hand, a clerk cannot be summarily compelled, by a court other than the one of which he is clerk, to do a certain act; nor c:in the clerk of ;1.n inferior court be punished by :in ;1.ppellate court which has not· acquired jurisdiction of the cause in which the clerk was derelict in the performance of his duty; nor is he obligated to perform acts not foiling wirhin the scope of his official duties. A merely min· isterial act may be performed by the clerk in term time without an order of rhe court. 14 C.J.S. 1248. 5. MATTERS REQUIRING JUDGE'S APPROVAL. In matters which the clerk is requited to submit to the judge for 2pproval, it will be presumed that they were done under the sanction and direction of the judge; and in such case the clerk is responsible only where he refuses to discharge his duty when requested by the judge, or where he is guilt}' of fraud in collusion with the judge. Ibid, p. 1250. 6. FUNCTION OF JUDG E PERFORMED DY CLERK. The attempted performance by the clerk of any function of the judge during his absence, even though done by his direction, is void; but an objection that the clerk, in performing a particular function, was usurping judicial powers is not available on colla.ter:1l att:ick. Jbit/, p. I24J. 7. CLERK OF COURT HAS NO AUTHORITY TO REFUSE AU!\llSSTON OF RECORD ON APPEAL A clerk of Court has no legal ground for refusing ;1.dmission of any erroneous or incomplete record on appe:al. It is within the province of the judge and not of the clerk to approve or reject that record if its defects could not be cured. Malicse vs. Ma1 ial11c rt af., CA-G.R. No. 868-R, promulgated June 4, 1947. 8. CLERK OF COURT AS COMM ISSIONER TO RECEIVE EVJOENCE. _ P3ta el nombramiento del Escribano como comisionado para recibir pruebas sobre cuenta final de ;1.dministraci6n, no hace fa lta el convenio por escrito de las parres, no sicndo de aplicaci6n los artlculos 135 y 136 de! C6digo de procedimiento civil. Escue/a v1. L11111ag11e, CA-G.R. No. 284, promulgHed June 30, 1938. 9. OATH OF CLERK. OF COURT AS COMMISSIONER, El articulo 602 del C6digo de Procedimiento Civil probee que, cu:indo el Juez lo ordcne, el Escribano pucdc recibir tod:is las pruebas refcrentes a las cuentas de los albace;1.s, :idministradorcs y fidei . comisarios, y cs su debcr transmitir al Juez, :i la mayor breved:id, su informe, cuentas y prueb;1.s, y en el caso de que el Juez se lo h:iya ordcnado, incluira en el necesarlo prestar juramento, porque se cnciende que, como Escribano, ya ha jurado. Escue/a 11s. L1111111g11i, CA-G.R. No. 284, promulgated June 30, 1938. JO. OFFICER OF CouRT MAY BE PUNISHED FOR CONTEMPT. An officer of the court may be guilty of contempt undef article 232 of the Code of Civil Procedure although the act commit· ted by him is not connected wich any specific judicial proceeding then pending in the court. In the 111alfer of Jones, 9 Phil. 347. 11. CoMPENSATION. Where the right to compensation is dePendent on stature, an :ittcndant is not entitled to receive compensation not provided for by the Statute, or to receive more than the amount fixed or deter· mined by the statute; :ind services required of him for which he is not specifically paid must be considered compensated for by the payment received for other services. 21 C.J.S. 222. One who claims "fees for services must be able to put his finger on some statute expressly allowing the fees he claims, and, if ht; is unable to do so, he is not entitled to the fees." Stale 1'5. Police Comrs. Bd., 82 S. W. 960, 962, 108 Mo. App. 98. 12. NEGLIGENCE OF COURT'S PERSONNEL. ]amoral w.1s not the receiving clerk in the office of the Clerk of Court and there is no evidence that he had ever filed the questioned record on ;1.ppeal. Conceding that he failed to comply with t he attorney's instructions and neglected to file the record of appeal on time it can not be denied that this document was in the hands of an employee of the Clerk's Office, and under the circumstances it could be highly unfair to hold appellant responsible for the neglect of the personnel of the court. Malic.i:e 11s. Maiialac et al., CA-G.R. No. 868, promulgated June 4, 1947. 13. 11ABTLITY. A court :ittend:mt m:iy be held accountable in a civil suit for damages resulting from negligence in the performance of his legal duties; and a suit may be brought against a former attendant in his individual cap.1city after he has gone out of office. 21 C.].S. 22 1. SEc. 47. Permanent station of clerk of court. - The permanent station of a clerk of court shall be at the permanent residence of the District Judge presiding in the court. NOTES 1. Place of performance. 2. Abolition of court. 1. PLACE OF PERFORMANCE. In the absence of any statute to that effect, a ministerial act of a clerk is not void, :ilthough performed away from his office or even outside of his county; and ministerial :icts need not be performed in court to be valid. Where a recognizance is required to be taken by the court, the clerk has no :rnthority to take it out of court. 14 C.J.S. 1249. 2, ABOLITION OF COU RT. Where a court is abolished the office of clerk falls with it; and so, where by statute the jurisdiction of one court is transferred to another, the clerk of the former ceases to have aOy official powers; and the clerk of the court to which the jurisdiction is transferred usually succeeds to the powers, duties, emolumery.ts, ;1.nd liabilities of the clerk of the superseded court. Ibid, p. 12/J. 232 THE LA WYERS JOURNAL hfay 31, 1949 On abolition of a court, the clerk of the court acquiring the jurisdiction of the abolished court is under a duty to rake char~e of :i.11 records of such abolished courr. Ibid, p. 1246. SEC. 48. Provi11cial officer as ex-officio clerk of court. - \Vhen the Secretary of Justice shall deem such :\Ction advisable, he may direct that the duties of the clerk ·of court shall be performed by a provincial officer or employee as ex-officio clerk of court, in which case the salary of said employee or officer as clerk of court, ex-officio, shall be fixed by the provincial board and shall be equitably distributed by said board with the approval of the Secretary of Justice between the national government and the provincial government. NOTES I. Deputy clerk may be an ex 2. Salary of ex officio clerk. officio clerk. l. DEPUTY CLERK MAY BE AN EX OFFICIO CLERK. A deputy county clerk may be an ex officio clerk of another 14 C.j.S. 1267. 2. SALARY OF EX OFFICIO CLERK . Another official acting as ex officio clerk of court h:is beCn held entitled to' compensation for such ex officio services. Ibirf, p. 1227. Circuit court clerk acting as ex officio clerk of chancery court is entitled only to the compensation granted him as clerk of the circuit court. Goode vs. Union County, 76 S. W. 2d 100, 189 Ark. 1123. City secretary receiving maximum compensation for such office is entitled to receive additional compensation for services as ex officio clerk of corporation court. City of Texarkana v. Flo)•d; Civ. App., 59 S. W. 2d 449. SEc. 49. judicial districts. - Judicial districts for Courts of First Instance in the Philippines are constituted as follows: The First Judicial District shall consist of the Provinces of Cagayan, Batanes, lsabela, and Nueva Viscaya, and the Subprovince of Ifugao; The Second Judicial District, of the Provinces of Ilocos Norte, Ilocos Sur, Abra, City of Baguio, Mountain Province except the Subprovince of Ifugao, and La Union; The Third Judicial District, of the Provinces of Pangasinan and Zaffibales, and the City of Dagupan; The Fourth Judicial District, of the Provinces of Nueva Ecija and Tarlac; The Fifth Judicial District, of the Provinces of Pampanga, Bataan, and Bulacan; The Sixth Judicial District, of the City of Manila; The Seventh Judicial District, of the Province of Rizal, Quezon City and Rizal City, the Province of Cavite, City of Cavite, the City of Tagaytay, and the Province of Pala wan; The Eighth Judicial District, of the Province of Laguna, the City of San Pablo, the Province of Batangas, the City of Lipa, and the Provinces of Mindoro and Marinduque; The Ninth Judicial D istrict, of the Provinces of Quezon and Camarines Norte; The Judiciary Act of 19-48 The Tenth Judicial District, of the Provinces of Camarines Sur, Alb:iy, Catanduancs, Sorsogon, Masbate, and Romblon; The Eleventh Judicial District, of the Provinces of Capiz and Iloilo, the City of Iloilo and the Province of Antique; The Twelfth Judicial District, of the Province of Occidental Negros, the City of Bacolod, the Province of Oriental Negros, and the Subprovince of Siquijor; The Thirteenth Judicial District, of the Provinces of Samar and Leyte, and the·City of Ormoc; The Fourteenth Judicial District, of the Province of Cebu, the City of Cebu and the Province of Bohol; The Fifteenth Judicial District, of the Provinces of Surigao, Agusan, Oriental Misamis, Bukidnon, and Lanao; and The Sixteenth Judicial District, of the Province of Davao, the City of Davao, the Provinces of Cotabato and Occidental Misamis, the Province of Zamboanga and Zamboanga City, and the Province of Sulu. NOTES I. Judges arc appointed for J. Effect of increasing number respective districts. of districts. 2. Judicial lottery. 1. JUDGES ARE APPOINTED FOR RESPECTIVE DISTRICTS. When, in pursuance of the power vested in the Governor-General and the Philippine Senate, judges of fitst instance are selected for positions on the bench, the appointments so made are for specific offices. Judges of first instance arc not appointed judges of first instance of the Philippine Islands but are appointed judges of the Courts of First Instance of the respective Judicial Districts of the Philippine Islands. They hold these positions of judges of first instance of definite districts until they either resign, reach the age of retirement, or are removed through impeachment proceedings. The intention of the law is to recognize separate and distinct judicial offices. (Borromeo vs. Mariano (1921), 41 Phil., 322; Act No. 2347 in force when Organic Act enacted; Administrative Code of 1917, secs. 128, 146, 153, 154, etc.; Act No. 2941.) Concepcion vs. Paredes, 42 Phil. 599. 2. JUDICIAL LOTTERY. In his official oath of office, Judge Concepcion swore to "faithfully and impartially discharge and perform all the duties incumbent upon me as Judge, Ninth Judicial District, hfanila, according to the best of m}' ability and understanding, agreeably to the laws of the Philippine Islands." Pedro Concepcion, :is such judge of first instance for the city of Manila, had jurisdiction only in the judicial district comprche,nding the metropolis. But, if the judicial lottery had been held, as planned, on March 15, 1921, Pedro Concepcion would have been removed from Manila and would h:ive had to proceed to :another district. Having determined by lot co which district he would be assigned, either one of two contingencies must happen; either Pedro Concepcion, judge of First Instance of the city of Manila by valid appointment of the Governor-General, by. :ind with the advice and consent of the Philippine Senate, would go to :another district than that to which he was appointed, pursuant to the certification of the Secrer:iry of Justice, or he would go to the new district pursuant to a new appointment by the Governor-General, by and with the advice :i.nd consent of the Philippine Senate. Following the first horn of the dileinma would result in a violation of the law, for there can be no valid appointment to an office so long as the appointing power, in this instance the Governor-General and the Philippine Senate, and not· the Secretary of May JI , 1949 THE LA WYERS JOURNAL 2JJ The J udiciary Act of I 94B Justice, is not exercised. And the second horn of the dilemma would reach the same result, for instead of an exercise of judgment by the Governor-General and the Philippine Senate, they would be required to perform merely a ministerial act and ro register approval of an appointment determined by chance. The law before us would require a drawing of lots for judicial positions, while the organic law would require selection for judicial positions by the Governor-General with the assent of the Philippine Senate. Ch:mce has been substituted for exl'cutive judgment. Appointment by lot is not appointment by the Governor-General. Appointment by lot is not appointment with the :idvice :ind consent of the Philippine Senate. To leave the selection of a person for a given judicial office to lot is not to appoint, but is to gamble with . the office. To such :i method we c:mnot give the seal of our approval. Ibid. 3. E F F ECT O F INCREASING NUMBER OF DISTRICTS. If, as has already been seen, jurisdiction is the power with which judges ar~ invested to try civil and criminal cases and to decide them or render judgment in accordance with the law, the increase in the number of districts in the judicial division of the territory of the Philippine Islands and the formation of each of these new districts by a larger or smaller number of provinces than i:hose assigned ro each district by Act No. 140 and the other Acts mentioned above, as well as ch:mges in the designation of some of those districts and of some of the provinces comprised in the former district for others finally designated in Act No. 2347, and the reduction in some of the new districts, according to the same Act, of the number of provinces comprised, to the extent that the Fourteenth Judicial District should include only the Province of Tayabas, which, with the Province of Batangas had formed the Seventh, Judicial District under Act No. 501 and prior thereto under Act No. 140 the Sixth District, along with the Provinces of Laguna, Cavite, Principe and lnfanta, and Polillo Island, do not constitute limitation or increase of the jurisdiction of those courts, because the power and authority to hear, try, and decide civil and criminal cases ' pertaining to each <;:Ourt are always the same, and what was increased or diminished by said Act No. 2347 was the place wherein said jurisdiction is exercised or the exercise of the jurisdiction itself with reference to the phcc in which it is publicly manifested. Cmichada vs. Drrclor of Prisons, 31 Phil. 94. SEc. 50. Judges of First lustance for f1<dicial Districts. - Four judges shall be commissioned for the First Judicial D istrict. Two judges shall preside over the Courts of First Instance of Cagayan and Batanes, and shall be known as judges of the first and second branches thereof, respectively, the judge of the second branch to preside also over the Court of First Instance of Batanes; one judge shall preside over the Court of First Instance of Isabela; and one judge shall preside over the Court of First Instance of Nueva Viscaya and the Sub-province of Ifugao. Four judges shall be commissioned for the Second Judicial District. One judge shall preside over the Court of First Instance of Ilocos Norte; one judge shall preside over the Courts of First Instance of Ilocos Sur and Abra; one judge shall preside over the Courts of First Instance of the City of Baguio and Mountain Province except the Sub-province of Ifugao; and another judge shall preside over the Court of First Instance of La Union. Four judges shall be commissioned for the Third Judicial District. They shall preside over the Court of First Instance of Pangasinan and shall be known as judges of the first, second, third and fourth branches thereof, respectively; one judge shall preside over the Court of First Instance of Lingayen to be known as the judge of the first branch; one judge shall preside over the Court of First Instance of the City of Dagupan and shall be known as the judge of the second branch; one judge shall preside over the Court of First Instance of Tayug and shall be known as the judge of the third branch; and one judge shall preside over the Court of First Instance of Lingayen to be known as the judge of the fourth branch who shall also preside over the Court of First Instance of Zambales, the judge of the fourth branch to preside also over the Court of First Instance of Zambales. Three judges shall be commissioned for the Fourth Judicial District. Two judges shall preside over the Court of First Instance of N ueva Ecija and shall be known as judges of the first and second branches thereof, respectively; and one judge shall preside over the Court of First Instance of Tarlac. Four judges shall be commissioned for the Fifth Judicial District. Two judges shall preside over the Court of First Instance of Pampanga and shall be known as judges of the first and second branches thereof, respectively, the judge of the second branch, to preside also over the Court of First Instance of Bataan; and two judges shall preside over the Court of First Instance of Bulacan and shall be known as judges of the first and second branches thereof, respectively. Ten judges shall be commissioned for the· Sixth Judicial District. They shall preside over the Courts of First Instance of Manila and shall be known as judges of the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth and tenth branches, respectively. Five judges shall be commissioned for the Seventh Judicial District. Three judges shall preside over the Court of First Instance of the Province Of Rizal, Quezon City and Rizal City and shall be known as judges of the first, second and third branches thereof, respectively; and two judges shall preside over the Court of First Instance of the Province of Cavite and the Cities of Cavite and Tagaytay, and shall be known as judges of the first and second branches thereof, respectively, the judge of the second branch to preside also over the Court of First Instance of Palawan. Five judges shall be cOmmissioned for the Eighth Judicial District. Two judges shall preside over the Court of First Instance of Laguna and the City of San Pablo, and sh:ill be known as judges of the first and second branches thereof, respectively; two judges shall preside over the Court of First Instance of Batangas and the City of Lipa, and shall be known as judges of the first an4 second branches thereof, respectively; and one judge shall preside over the Courts of First Instance of Mindoro and Marinduque. Three judges shall be commissioned for the Ninth Judicial District. They shall preside over the Court of First Instance of Quezon and shall be knO wn as judges 234 THE LA WYERS JOURNAL M:i.y 31, 1949 of the first, second and third branches thereof, respectively, the judge of the third branch to preside also over the Court of First Instance of Camarines Norte. Six judges shall be commissioned for the Tenth Judicial District. Two judges shall preside over the Court of First Instance of Camarines Sur and shall be known as judges of the first and second branches thereof, respectively; two judges shall preside over the Courts of First Instance of Albay and Catanduanes and shall be known as judges of the first and second branches thereof; one judge shall preside over the Court of First Instance of the Province of Sorsogon; and one judge shall preside over the Courts of First Instance of Masbate and Romblon. Five judges shall be commissioned for the Eleventh Judicial .District. Two judges shall preside over the Court of First Instance of Capiz and shall be known as judges of the first and second branches and three judges shall preside over the Court of First Instance of the Province of Iloilo and the City of Iloilo, and shall be known as judges of the first, second and third branches thereof, respectively, the judge of the third branch to preside also over the Court of First Instance of Antique. Four judges shall be commissioned for the Twelfth Judicial District. Three judges shall preside over the Court of First Instance of Occidental Negros and the City of Bacolod, and shall be known as judges of the first, second and third branches thereof, respectively; and one judge shall preside over the Courts of First Instance of Oriental Negros and the Subprovince of Si- · quijor. Six judges shall be commissioned for the Thirteenth Judicial District. Three judges shall preside over the Court of First Instance of Samar and shall be known as judges of the first, second and third branches thereof, respectively; and three judges shall preside over the Court of First Instance of Leyte and the City of Ormoc, and shall be known as judges of the first, second and third- branches thereof, respectively. Four judges shall be commissioned for the Fourteenth Judicial District. Three judges shall preside over the Court of First Instance of the Province of Cebu and the City of Cebu, and shall be known as judges of the first, second and third branches thereof, respectively; and one judge shall preside over the Court of First Instance of Bohol. Three judges shall be commissioned for the Fifteenth Judicial District. One judge shall preside over the Courts of First Instance of Surigao and Agusan; one judge shall preside over the Courts of First Instance of Oriental Misamis and Bukidnon; one. judge shall preside over the Court of First Instance of Lanao. Four judges shall be commissioned for the Sixteenth Judicial District. One judge shall preside over the Court of First Instance of Davao; one judge shall preside over the Court of First Instance of Cotabaro; one judge shall preside over the Courts of First Instance of Occidental Misamis and Zamboanga Province; and The Judiciary Act of 1948 one judge shall preside over the Court of First Instance of Zamboanga City and Sulu. SEc. 51. Detail of judge to another district or province.-Whenever a judge stationed in any province or branch of a court of a province should certify to the Secretary of Justice that the condition of the docket in his court is such as to require the assistance of an additional judge, or when there is any Vacancy in any court or branch of a court in a province, and there is no judgeat-large available to be assigned to said court, the Secretary of Justice may, in the interest of justice, and for a period of not more than three months, assign any judge of any other court or province within the same judicial district, whose docket permits his temporary absence from said court, to hold sessions in the court needing such assistance, or where such vacancy exists. No district judge shall be assigned to hold sessions in a province other than that to which he is appointed without the approv:tl of the Supreme Court being first had and obtained. NoTEs 1. Constitution;i.l provision. 2. Construction of statute. 3. When a judge may be assigned to another distric:t. 4. Record of designation. 5. Judge holding court in another district. 6. Consent of judge. 7. Decision rendered by judge who heard evidence. 8. Judge trying case need not be the same judicial officer to decide it. 9. Cases decided after transfer of judge to another province or district. 10. Necessity of authority to act on a pending case. 11. Jurisdiction of a judge to reconsider the order issued by another. 12. Effectivity of the law. 13. Certiorari. 1. CoNSTITUTIONAL PROVISION. No judge appointed for a particular district shall be designated or transferred to another district without the approval of the Supreme Court. The Congress shall by law determine the residence of judges of inferior courrs. Sec. 7, Art. VIII, ComtituNo-n of the Philippines. Section 7 of Art. VIII of the Constitution refers to transfer from one judicial district to another and never prohibit the appointment or designation of a judge of Court of First Instance or any other judge from being appointed temporarily or permanently with his consent to court of different grade and make up. People vs. Carlos, G.R. No. L-239, promulgated June 30, 1947. 2. CONSTRUCTION OF STATUT E. A statute providing for j~dges of one district to hold court in another district is generally considered as remedi:il and should be liberally construed with a view to promoting the ends of justice. General rules have been applied in the construction of constitutional provisions extendini; the territorial jurisdiction of judges. 48 C.).S. 1027. J. WHEN A JUDGE MAY BE ASSIGNED TO ANOTHER DISTRICT. The provision of the constitution that the legislature may provide by law that a judge of one district may discharge duties of a judge of any other district not his own when convenience or public interest may require applies where district judge is disabled or accumulation of business is such that he is unable to take care of it. State ex rrl. Tbompso-11 11. Day, 273 N. W. 684, ioo Minn. 77. 4. RECORD OF DESIGNATION. Executive order designating circuit judge of oile circuit to hold M:>y .\! , !949 THE LAWYERS .JOURNAL 235 The Judiciary Act of 1948 court in another circuit should be entered of record in minutes of l:ittcr court. Forr11111 v. Symmes, 133 So. 88, 101 Fla. 1266. S. jUDGE HOLDING COURT JN ANOTHER DISTRICT. A judge holding court in :mother district becomes a constituent part of the local court. If the local court consists of only one judge, the visiting judge is not considered as an associate or coordinate judge with the local judge but is the court itself, and has the same powers or the right to exercise the same powers as the regular judge. Whenever the visiting judge enters on the trial of a case he, for the purpose of that case, has all the power and authority of the judge of the local district, and he may make all such orders as may be required for the determination of the case, and his authority continues until the motions after the trial :ire disposed of, although the regular judge appears and hold court. 48 C.J.S. 1028. 6. CoNSENT OF JUOOE. If, therefore, anyone could refuse appointment as a judg~ of first instance to a particular distrii;:t, when once appointment to this district is accepted, he ills cx:ictly the same right to refuse an :ippointment to another district. No other perrnn could be placed in the position of this Judge of First Instance since another rule of public officers is, th:it an appointment may not be m:ide to an office · which is not vacant. (29 Cyc., 1373) In our judgment, the langu:ige of the proviso to section 15 5 of the Administr:itive Code, interpreted with reference to the law of public officers, does not empower the Governor·General to force upon the judge of one diS'· trict an appointment to another district against his will, thereby removing him from his district. . Certainly, if a judge could be transferred from one district of rhc Philippine Islands to another, without his consent, it would re. quire no great amount of imagin:ition to conceive how this power could be used to discipline the judge or as an indirect means of re· moval. A judge who had, by a decision, incurred the ill-will of an attorney or official, could, by the insistence of the disgruntled party, be removed from one district, demoted, and transferred to· another district, at possibly a loss of salary, all without the consent of the judicial officer. The only recourse of the judici:il officer who should desire to maintain his self-respect, would be to v:icate the office and leave the service. Unless we wish to nullify the impeachment section of the Administrative Code, and thus possibly to encroach upon the jurisdiction conferred upon the Supreme Court by the Organic Law, section 155 must be interpreted so as to make it consistent therewith. Borromeo vs. Mariano, 41 Phil. 322. 7 . DECISION RENDERED BY JUDGE WHO HEARD EVIDENC E. Section 13 of Act No. 867 provides :is follows: "Judges in certain cases authorized to sign final j11dg111cul whc11 0 11/ of lrrriloria/ j11risdictio11 of co11r/.-Whcncver a Judge of .'.I Court of First Instance or a Justice of the Supreme Court shall hold a session, special or regl!lar, of rhc Court of l~i rst Instance of .m y province, :ind shall thereafter leave the prO\'incc in which the com t was held without having entered judgment in ;1\l t he cases which were hc.ud at such session, it shall be lawful for him, if the cas<.' was h<.'ard and duly argued or an opportunity given for argument to the parties or their counsel in the proper province, to prepare his judgment after h<.' has left tlie provinc<.' and to send rhe same back properly signed to the clerk of the court, to be entered in the court as of the dar when the same w:is received by the Clerk, in the same manner as if the judge had bee11 present in court to direct the entry of the judgm<.'nt: Prodded, hotal'l'r, That no judgment shall be valid unless th<.' same was signed by tit<.' judge while within the jurisdiction of th<.' Philippine Islands. Whenever :i judge shall prepare :md sign his judgment beyond the jurisdiction of the court of which 1t is lo be :i judgment, he sh:ill inclose the same in an envelope and direct it to rhc clerk of the proper court and send the same by register<.'d mail." The policy of the government is evidenced by the wording of the amended section 15 5 of the Administrative Code. The detail of a district judge to another district is permitted to advance "the public interest and the spc<.'dy administration of justice." Ob\'iously, the public interest and the speedy administration of justice will be best served if the judge who heard the evidence renders the decision. It might well h:ippen that the full extent of the six months' period (now three months) would be used by the trial judge to receive t he evidence, giving him no opportunity to pro~ mulgate decisions, with the result that all the mountain of evidence would be left for the perusal of :i judge who did not hear the witnesses-a result which should be dodged, 'if it be legally feasible. The law does not mean to authorize a judge to try a case and then deprive him of the power to render his decision after he has taken cognizance of it. The legislative purpose was not to make the judge holding a special term of court a mere referee for another judge. Delfi110 vs. Paredes and Vargas, 48 Phil. 645. 8. JUDGE TRYING CASE NEED NOT BE THE SAME J U DICIAL OF· FICER TO DECIDE 1T. It is not necessary that the judge who tried lhe case be the same judicial officer to decide it. Sometimes, it is a practical impossibilty that that be done. The judge trying a case m:iy die, resign, be disabled, or be transferred to another court before finishing the tri:il. In that case, another jµdge may continue and termin:ite the trial and it is sufficient if he be appraised of the evidence already presented by a reading of the transcript of the testimonies already introduced, in the manner as appellate courts review evidence on ap'pcal. People vs. Samsa110, CA-G.R. No. 1099-R, promulgated Oct. 29, 1947. A judge is authorized to decide questions of fact upon evidence which was not taken by him (Ortiz vs. Aramburo, 8 Phil. 98·100) . Courts of record rely upon the transcript of the stenographic notes taken during the hearing in deciding questions of fact. The transcripts of the stenographic notes taken during the hearing of the instant case having been certified by the official court stenographer to be true and correct, arc worthy of consid<.'ration and arc prima facie evidence of the proceeding herein (Co Piteo vs. Yulo, 8 Phil. 544; Sec. 35, Rule 123, Rules of Court), in the absence of any indication why the notes are incomplete or what portions thereof are distorted. Garcia vs. P11e11fcvella eJ P11rnlcvclla vs. Garcia, CAG,.R. Nos. 734-R & 735-R, promulgated Dec. 16, 1947. 9. CASES DECIDED AFTER TRANSFER OF JUDGE TO ANOTHER l'RO\llNCE OR DISTRICT. The t rial judge decided the case after he had been transferred to another judicial district than that in which the venue was laid. Held, that the fact that he signed the decision as judge of the dis· trier to which he w:is transferred is not in itself sufficient to overcome rhc presumption that "a court, or judge acting as such, whet her in the Philippine Islands or elsewhere, was acting in the lawful exercise of his jurisdiction." (Subsec. 15 , sec. 334 Code of Civil Procedure.) Heredcros de Esquiercs vs. Director of Lands, 53 Phil. 727. T he only point of bw raised by the appellants is that at the time of signing che appealed judgment, J udge Platon, who tried the case, had been appoinred judge of the Comt of First Instance of the Pro,•incc of Albay; that he therefore had no jurisdiction of the case at th:it time; and that the judgment consequently is null and \'oid. Tl1ere is, as far as we on sec, 110 merit in this concention. The pr.?sumption is " char a court, or judge acting :1s such. whether in ;-he Philippine lsbnds ol' elsewhere, was acting in the lawful exercise of his jurisdiction" (subsec. 15, sec. 334, Code of Ci''· Proc.) and there is no sufficient evidence in the record to rebut this presumption. Tt is true t hat the judge signed as judge of the Court of First Instance of Albay but for :ill we know, he may have been authorized by the Secretary of Justice, under section 155 of the Administrative Code, to finish the trial of :he case after his appointment to the district of Alb:iy and, if so, the judgment is valid. Na1iagas vs. Municipality of Sa11 Narciso, 53 Phil. 719. Zl6 THE LA WYERS JOURNAL May 31, 1949 ..l Section 13 of Act No. 867 permits a Judge of Firs.t Instance who shall hold a session, special or regular, without having entered judgri1cnt in all of the cases which were heard, to prepare and render his judgment after he has left the province. It would be logical to suppose that the Legishture in enacting Act No. 3107 amendatory of section 15 5 of the Administrative Code had in mind section I; of Act No. 867 and desired both the new and the old provisions to intcrblcnd. Delfino vs. Paredes and Vargas, 48 Phil. 64L Where a cause was submitted, after proof t:ikcn, with oppol'tunity to rhc attorneys to be he:trd, but oral argument was waived, permission being given to file written memoranda later, the judge could subsequently prepare and sign his decision after leaving the province, the trial judge having been specially assigned for duty dci-ing the vacation period. (Sec. 13, Act No. 867.) Bag11ing11ifo v. Rivera, 56 Phil. 423. If Judge Summers had been the permanent district judge of Tarlac and before he rendered the decision in this case had been :ippointed permanent district judge of Cavite and had dictated ~he decision without any authority or redesignation by the Secretary of Justice, it is clear that the decision in this case would be null and void. However, this is not the case. Judge Summers was a cadastral judge (41 Off. Gaz. No. 4, p. 271) and as such was vested with general jurisdiction throughout the Philippine Islands by paragraph 3 of Executive Order No. 395 issued by the President of the Commonwealth on 24 December 1941 under the emergency powers conferred upon him by Commonwealth Act No. 671. Cadasrral 1udges, therefore, have the same general jurisdiction over the whole country as judges-at_ -large. Consequently, the ruling laid down in the c;1se of Alarcon vcrsu~ Kasilag ( 40 Off. Gaz. 11th Supplement, p. 203) with regard to judges-at-large is perfectly applicable to cadasrral Judge Ricardo Summers. In this case it was held that ··A judge-at-large who tried a case in one province can even after being designated to act in another province, render decision in the case." (Alarcon vs. Kasilag, 40 Off. Gaz., 11th Supplement, p. 203). People vs. Salvador Mala, el af., CA-G.R. No. 4S'-R, promuigated July II, 1947. De conformidad con la Constitucion del Commonwealth (Art. VIII, Sec. 7), la Ley ·867 (Art. 13) y los Reglamentos de los Tribunales (Regla 124, par. 9) los Jueces de Primera Instancia podian decidir causas en una provincia distinta de aquella en donde vieron y fueron somctidas a su fallo (Baguinguito vs. Rivera, 5 6 Phil. 423). Pero estas !eyes y reglamentos fueron afectados por la Orden Ejecutiva No. 4, que como estructura fundamental del Gobierno de Ia Comision Ejecutiva, ha puesto a la absoluta discrecion y autoridad dcl Comisionado de Justicia cl traslado y la designacion de jucces de Primera lnstancia. Sc este alto funcionario, en intercs del servicio publico, como en el presente caso, podia trasladar y designar a los Jueces de un distrito a otro y de una provincia a otra, que es lo mas, con razon podia autorizarles a decidir causas en un distrito o provincia distinto de aquel en que vieron y a su fallo fueron sometidas, que es lo menos. Zulaybar et al. vs. Piacente et al., CA-G.R. No. 690-R, promulgated No'v. 19, 1947. A judge-at-large who tried a case on one province can, even after being designated to act in another province, render decision in the case. Alarcon v. Kasifag, Eleventh Suppl., 40 Off. Gaz., p. 203. Cuando nose trata de una mera ausencia del Juez del distrito donde ha celebrado la vista, sino de su traslado a otro distrito en virtud de un nuevo nombramiento, dicho Juez "pierdc toda su autoridad judicial ~ derecho a continuan con b. rcsoluci6n o decisi6n de una causa, en cualquier forma, despues de dicho traslado.'' Aquino et al vs. Vaftlez et al., CA-G.R. No. 84S', promulgated Jan. 28, 19}8. La vista conjunta de los dos asuntos se llev6 a cabo ante cl Juez sentenciador los dias 28 de Julio de 1933, 19 de encro, 1.o, 4 y 17 de marzo; 29 de agosto; 7 y 19 de septiembre de 1934, y termin6 el 28 de cste Ultimo mes y afio. El cicado Juez sentenciador foe nombrado Juez de Primera lnstancia de otra provincia, el 8 de noviembre de 1934, y prest6 el juramento de rigor el 12 de noviembre The Judiciary Act of 1948 de 1934, y desde entonces pas6 a celebrar sesiones en dicho Juzgado, pero el 21 de encro de 1936 se traslado a la provincia anterior, y alli dict6 entonces la sentencia objeto ahora de alzada. Con posterioridad al nombramiento y juramento dcl Honorable Juez, como Juez de Primera lnstancia de la Otra provincia, el Departamento de Justicia expidi6 una Orden Administrativa, autorizando "al Honorable Juez del Undecimo Distrito Judicial, para que celebro sesiones en el Municipio de Pasig, Provincia de Rizal, desde el 28 de octubrc de 193S', o tan pronto dcspues como fuese practicable, con el fin de ver y fallar toda clase de :tsuntos." Se Jeclara: Habida consideraci6n de cstas circunstancias, y bajo la autoridad que le confiri6 la orden Administrativa arriba citada, cl citado Juez sentenciador tenia, competencia y jurisdicci6n para dictar la sentencia apelada. Roxas vs. Velrrio y otros; Roxas vs. Dominguez y otros, CA-G.R. Nos. 902 and 903, promulgated June 13, 19}9. Cuando sc pr.esentan los informes de las partcs despues que el Juez que vi6 cl asunto hubo prestado juramento como Jucz de Primera lnstancia de otro distrito y se dicta la decisi6n despues de haber el prestado -el juramento de su nuevo cargo, no era aplicable a dicho caso la facultad conferida por el Departamento de Justicia, para Llllar en Manila o en Sta. Cruz, La Laguna, los asuntos cuyas vistas :.c hayan terminado ante el en Pisig, Rizal. Arranz vs. Albano, CA-G.R. 1 No. 2046, promulg~ted Sept. 29, 1937. El apelante no discutc su culpabilidad ni cuestiona la pena que se le ha impuesto, pero alega que la scntcncia apelada es ilegal y nula porquc la dicto el Jucz R. A. C. que a la saz6n habla sido nombrado J uez de guardia en la Provincia de Bulacan. Ocurri6 que. el referido Juez habia sido realmcnte designado parn dicha provincia duran· te los meses de abril y mayo de 1940 en virtud de la Orden Administrativa No. 28 dcl Dcpartamento de Justicia; mis, resulta que dicha orden administrativa fuC enmendada por la No. 32 del 11 de marzo de 1940 que destin6 al mencionado Juez para que prestara servicios, como Juez de guardia, en la Ciudad de Manila durante el mes de mayo de! mismo ai'io en quc se celebr6 la vista del asunro y se dict6 la sencencia condenatoria apelada. De este dato se infiere que la pretensi6n del apclante al efccto de que el Juez quc le juzg6 cared a de jurisdicci6n, no es meritoria. Pucbfo contra Co11wi, 40 Off. Gaz., Fourteenth Suppl., p. 166. 10. NECESSITY OF AUTHORITY TO ACT ON A PENDING C ASE. Section 51 of Act No. 136 provides that the Supreme Court may direct any judge of the Court of First Instance to hold a term or part of a term of court in any Court of First Instance not in his district. Section 52 provides that a judge of any. Court_ of First Instance may hold court in any province at the reqµcst of the jud~e thereof, or upon the direction of the Chief Executive. It is not claimed that any order was ever made in accordance with either of these sections. At the time the judgment was signed the judge who signed it was therefore not the judge of the Court of First Instance of Sorsogon, and was not authorized to act in any cases pending in that court by direction of any competent authority. The Solicitor-General relies upon Act No. S'75, carried forward and now appearing as sections 13 and 14 of Act No. 867. Those sections authorize a judge of the Court of First Instance, in any case which he has tried, to sign the judgment outside of his province or district. There is nothing in the law, nor in the case of the United States vs. Domingo Baluyut (3 Off. Ga., 676), which con~t1·ued the law, which in any way indicates that a judgment would be valid which was signed outside of the district or province by a person who is not the judge of the court in which the action is pending, or has not been authorized to hold a court therein in_ accordance with said sections 51 and 52. U.S. vs. Sofer et al, 6 Phil. 321. 11. jUlllSDICTION OF A JUDGE TO RECONSIDER THE ORDER ISSUED BY ANOTHER, El Juez G. F. P. tenia jurisdicci6n para actuar sobre la reconsidemci6n pedida por E. S. de la resoluci6n dcl Juez Paredes concediendo b poscsi6n dcl lore a la recurrente. El juC'Z Pablo era Jue:r. May 31, 1949 THE LAWYERS JOURNAL 23 7 The Judiciary Act of 1948 de! mismo Juzgado en que estab:i pendicnte el asunto y tenia jurisdicci6n par:i. reconsidcrar la resoluci6n dictada por el Juez Paredes, a quien sustituyO, de la misma manera y en la misma extensiOn en que este hubiera podido haccrlo, si no hubiese sido traslado a otro Juzgado y hubiese scguido siendo Juez dcl Juzgado de Primera lnsLancia de Nueva Ecija. Coj11angco c-011/ra Pablo y Sawit y otros, 40 Off. Gaz., Sixth Suppl. p. 212. A judge of first instance is not legally prevented from revoking the interlocutory ordet' of another judge in the very litigation subsequently assigned to him for judicial action. The former is not required to he:ir the parties, if and when a reading of the record convinces him that the order should be revoked because improperly granted or that it should be disapproved. 011g S11 Ha11 vs. Gutierrt'Z Dadd ct af. XIII Lawyers Journal, 44 l. 12. £FFECT1VITY OF THE LAW. On April 16, 1923, as appears from the Official Gazette, the Secretary of Justice :iuthorized and instructed the Honorable George R. H :irvcy, Judge of First Tnstante of the Ninth Judicial District, to hold a special term of court in the City of Baguio, Mountain Province, beginning May 2, 1923. (Administrative Order No. 43, 21 Off. Gaz., p. 893.) Acting under the authority granted by the ordt>r of the Secretary of Justice, Judge Harvey proceeded to hear rhe case of Askay vs. Cosalan, without protest from anyone until after an adverse decision for the pbintiff and until after Judge Harvey had left the district. The point which plaintiff now presses is that Act No. 3107, ;;.mendatory of section 15 5 of the Administrative Code, which aurhorizes a Judge of First Instance to be detailed by the Secretary of Justice to temporary duty, for a period which shall in no case exceed six monrhs, (now three months) in a district or province other than his own, for the purpose of trying all kinds of cases, excepting criminal and election cases, was not in force until fifteen days after the completion of the publication of the statute in the Official Gazette, or not until August 3, 1923. Plaintiff relies on· section 11 of the Administrative Code, which in part reads: "A statute passed by th~ Philippine Legislature shall, in the abswce of special provisio11, take effect at the beginning of the fifteenth day after the completion of the publication of the statute in the Official Gazette, the date of issue being excluded." Now turning to Act No. 3107, its final section provides that "this act shall take effect on its approval." The Act was approved on March 17, 1923. Obviously, therefore, there being a special provision in Act No. 3107, it applies to the exclusion of the general provision contained in the Administrative Code. Reca1ling, therefore, that Act No. 3107 went into effect on March 17, 1923, and that it was subsequent thereto, on April 16, 1923, that Judge Harvey was authorized to hold court at Baguio, beginning with May 2, 1923, appellant's argument along this line is found to be withoui: persuasive merit. Askay vs. Cosalan, 46 Phil. 179. 13. CERTIORARI. Where a decision of a judge assigned to temporary duty is held null and void by another judge, certiorari is the appropriate remedy. Delfino vs. Paredes a11d Vargas, 48 Phil. 645. SEc. 5 2. Pennauent Stations of District Judges. . - The permanent station of judges of the Sixth Judicial District shall be in the City of Manila. In other judicial distr~cts, the permanent stations of the Judges shall be as follows: For the First Judicial District, the judge of the first branch of the Court of First Instance of Cagayan shall be stationed in the municipality of T uguegarao, same province; the judge of the second branch, in the municipality of Aparri, same province; one judge shall be stationed in the municipality of Ilagan, Province of Isabela; and another judge, in the municipality of Bayornbong, Province of Nueva Viscaya. For the Second Judicial District, one judge shall be stationed in the municipality of Laoag, Province of Ilocos Norte; one judge, in the municipality of Vigan, Province of Ilocos Sur; one judge, .in the City of Baguio, Mountain Province; and one judge, in the municipality of San Fernando, Province of La Union. For the Third Judicial District, one judge shall be stationed in the municipality of Lingayen, Province of Pangasinan, one judge shall be stationed in the City of Dagupan, same province; and one judge in the municipality of Iba, Province of Zambales, and one in the municipality of Tayug. For the Fourth Judicial District, two judges shall be stationed in the municipality of Cabanatuan, Province of Nueva Ecija) and one judge in the municipality of Tarlac, Province of Tarlac. For the Fifth Judicial District, two judges shall be stationed in the municipality of San Fernando, Provirice of Pampanga; and two judges, in the municipality of Malolos, Province of Bulacan. For the Seventh Judicial District, the judge of the first branch of the Court of First Instance of Rizal shall be stationed in the municipality of Pasig, same province; that of the second branch, in Rizal City; and that of the third branch, in Quezon City; and two judges, in the City of Cavite, Province of Cavite. For the Eighth Judicial District, two judges shall be stationed in the municipality of Santa Cruz, Province of Laguna; the judge of the first branch of the Court of First Instance of Batangas shall be stationed in the municipality of Batangas, and that of the second branch in the City of Lipa, same province; and one judge, in the municipality of Calapan, Province of Mindoro. For the Ninth Judicial District, the three judges shall be stationed in the municipality of Lucena, Province of Quezon. For the Tench Judicial District, two judges shall be stationed in the municipality of Naga, Province of Camarines Sur; one judge, in the municip-ality of Legaspi, Province of Albay; one judge, in the municipality of Sorsogon, Province of Sorsogon; and one judge, in the municipality of Masbate, Province of Masbate. For the Eleventh Judicial District, one judge shall be stationed in the municipality of Capiz and one in the municipality of Calivo, Province of Capiz; and three judges, in the City of Iloilo, Province of Iloilo . For the Twelfth Judicial District, three judges shall be stationed in the City of Bacolod, Province of Occidental Negros; one judge, in the municipality of Dumaguete, Province of Oriental Negros. For the Thirteenth Judicial Distric.t, the judge of first branch of the Court of First Instance of Samar shall be stationed in the municipality of Catbalogan, P.i;ovince of Samar; the judge of the second branch, in 2J8 THE LA WYERS JOURNAL May 31, 1949 the municipality of Borongan, same province; and the judge of the third branch, in the municiJ?ality of Laoang, same province; the judge of the first branch of the Court of First Instance of Leyte shall be stationed in the municipality of Tacloban, Province of Leyte; the judge of the second branch, in the municipality of Maasin and the City of Ormoc, same province; and the judge of the third branch, in the municipality of Baybay, same province. For the Fourteenth Judicial District, three judges shall be stationed in the City of Cebu, Province of Cebu; and one judge, in the municipality of Tagbilaran, Province of Bohol. For the Fifteenth Judicial District, one judge shall be stationed in the municipality of Surigao, Province ·of Surigao; one judge, in the · municipality of Cagayan, Province of Oriental Misamis; one judge, in the municipality of Dansalan, Province of Lanao. For the Sixteenth Judicial District, one judge shall be stationed in the City of Davao, Province of Davao; one judge, in the municipality of Cotabato, Province of Cotabato; one judge, in the municipality of Oroquieta·, Province of Occidental Misamis; and one judge, in the City of Zamboanga. SEc. 5 3. Judges-at-Large and Cadastral Judges.In addition to the District Judges mentioned in Section forty-nine hereof there shall also be appointed eighteen Judges-at-Large and fifteen Cadastral Judges who shall not be assigned permanently to any judicial district and· who shall render. duty in such district or province as may from time to time, be designated by the Department Head. NOT ES I. Authority of the Secretary of 2. Order transferring cases. Justice to transfer cases. 1. AUTHORITY OF THE SECRETARY OF JUSTICE TO TRANSFER Upon examining the perrinent provisions of law, we discover no reason to doubt that the Secretary of Justice has lawfully exercised his administrative authority in requesting Judge Pablo to assume charge of criminal case No. 9743, with the result that the case is now lawfully pending before said judge. Jn the first place, the supervision over Courts of First Instance, in the administrative sense, is vested by law in the Department of Justice, which is presided over by the Secretary of J ustice (Adm. Code, secs. 84, 76); and among the specific administrative powers conferred upon a department head is that of giving instructions, not contrary to law, neces~ sary to regulate the proper working and harmonious and efficient administration of each :md an of the offices and dependencies of his Department, and for the strict enforcement. and proper execution of the laws relative to matters under the jurisdiction of said Qepartment (Adm. Code, Sec. 79 (B), as amended by sec. 2, Act No. 2803). In the second place, by another provi~ion of the Code, it is declared that the Aux:iliary Judges of First Instance shall, at the direction of the Secretary of Justice, assist any District Judge (Adm. Code, Sec. 157, as amended by sec. 1, Act No. 3107). But the Courts of First Instance are chiefly occupied with the hearing and determination of causes; and it is obvious that the assistance to be rendered by AuxiThe Judiciary Act of 1948 liary Judges of First Instance must consist mainly in the work of hearing and determining causes. The Secretary of Justice, under the provisions above cited, consequently has the power to authorize or direct the Auxiliary Judge to assume cognizance of, and cry any particubr case pending before a Judge of First Instance, when, in the opinion of the Secretary, such step is required for the "harmonious and efficient administration" of the work of the court. Whether or not such a condition exists, with respect to a particular case, as tO require the exercise of this power, is a matter exclusively for the determination of the Secretary. Rafo/s vs. Pablo, 52 Phil. 375. 2. ORDER TR ANSFERRING CASES. From a copy of an order of August 18, 1928, made by Judge De la Rama - which may or m:i.y not be properly before us - we gather that in the latter part of June, 1928, Judge De la Rama, before whom the case had been pending, made an order transferring case No. 9743 to Judge Pablo, the Auxiliary Judge, but said order having been lost, the order of August 18 , 1928 , was made by Judge De la Rama confirming and ratifying said lost order. Whether or not any such order of transfer was actually made by Judge De la Rama we consider of no moment, since if the Secretary of Justice had authority to direct the transfer of the case to the Auxiliary Judge, and the latter has in fact assumed cognizance of the cas·e, even without the participation of Judge De la Rama, no order of transfer by Judge De la Rama would be necessary. The :i.ssumptio,n of jurisdiction over the case by Judge Pablo, in response to the request of the Secretary of Justice, is equivalent to a transfer by direction of the Secretary. Ibid. SEc. 5 4. Places a11d times of holding court.-For the Sixth Judicial District, court shall be held in the City of Manila. In other districts, court shall be held at the capitals or places in which the respective judges are permanently stationed, except as hereinafter provided. Sessions of court shall be convened on all working days when there arc cases ready for trial or other court business to be dispatched. In the following districts, court sh:i.ll also be held at the places and times hereinbclow specified: First Judicial District: At S:mto Domingo de Basco, Province of Batanes, on the first Tuesday of March of each year. A special term of court shall also be held once a year, in the municipalities of B:tllesteros and Tuao, both of the Province of Cag:tyan, and at Kiangan, Subprovince of Ifugao, in the discretion of the district judge. Second Judicial District: At Bangued, Province of Abra on the first Tuesday of J:inuary, March, June, and October of each year; at Bontoc, Mountain Province, on the first Tuesd:ty of March, June, :tnd November of each ye::ir; and, whenever the interests of justice so require, a special term of court shall be held at Lubuagan, Subprovince of Kalinga. Seventh Judicial District: At CoroJ1, Province of Palawan, on the first Monday of March and August of each year; at Cu yo, same provi.nce, on the second Thursday of March and August of each year; and at Puerto Princesa, same province, on the fourth \Vednesday of March and August of each year. Eighth Judicial District: The Judge shall hold special term at the municipalities of Lubang, Mambonao and San Jose, Province of Mindoro, once.every year, as May 31, 1949 THE LA WYERS JOURNAL 2)9 The Judiciary Act of 1948 may be determined by him; at Boac, Province of Marinduque, on the first Tuesday of March, July, September and December of each year. Ninth Judicial District: At Infanta, Province of Quezon, for the municipalities of lnfanta, Casiguran, B:iler and Polillo, on the first Tuesday of June of each year; at Daet, Cam:irines Norte, terms of court shall be held at le:ist six times a year on the dates to be fixed by interest of the administration of justice require it, the Secretary of Justice may advance or postpone the term of court or transfer the place of holding the same to another municipality within the same judicial district; and, in the land registration cases, to any other place more convenient to the parties. NOTES the district judge. 1. Place of holding court. authorized by law. Tenth Judicial District: At Virac, Province of 2. Holding sessions in differ- 4. cm places. 5. Mandamus. Catanduanes, on the first Tuesday of March and September of each year; :lt R omblon, Province of Romb1on, on the first Tuesday of January, June, and October of each year; and at Badajos, same province, on the third Tuesday of January, June, and October of each year . . Eleventh Judicial District: At San Jose, Province of Antique, on the first Tuesday of February, .June and October of each year; and at Culasi, same province, on the first Tuesday of December of each year. Twelfth Judicial District: At Larena, Subprovince of Siquijor, on the first Tuesday of August of each year. Thirteenth Judicial District : The first branch, at Calbayog, Province of Samar, on the first Tuesday of September of each year; and Basey, same province, on the first Tuesday of January of each year; and the second branch, at Oras, same province, on the first Tuesday of July of each year, and the first Tuesday of October of each year in Guiwan; and the third branch, at Catarman, same province, on the first Tuesday of October of. each year. Fifteenth Ju"dical District : At Cantilan, Province of Surigao, on the first Tuesday of August of each year, at Butuan, Province of Agus:m, on the first Tuesday of March and October of each year; a special term of court shall also be held once a year in either the municipality of Tandag or the municipality of Hinaruan, Province of Surigao, in the discretion of the district judge; at Mambajao, Province of Oriental Misamis, on the first Tuesday ·of March of each year. A special term of court shall, likewise, be held, once a year, either in the municipality of T alisayan or in the municipality of Gingoog, Province of Oriental Misamis, in the discretion of the district judge; <it Iligan, Province of Lanao, on the first Tuesday of March and October of each year. Sixteenth Judicial District: At Dipolog, Province of Zamboanga, terms of court shall be held at least three times a year on dates to be fixed by the district judge; at Pagadian, same province, for the municipalities of Pagadian, Margosatubig and Kabasalan; at least once a year ; at Jolo,·Province of Sulu, terms of court shall be held at least four times a year on dates to be fixed by the district judge; at Baganga and Mari, Province of Davao, and at Glan, Province of Cotabato, terms of court shall be held at least once a yea r on the dates to be fixed by the district judge. Notwithstanding the provisions of this section, whenever weather conditions, the condition of the roads or means of transportation, the number of cases or the 3. Session held at a time not I. P LACE OF HOLDING COU RT. Powers of court after expir:nion of term. To constitute a court there must be a place appointed by law for the administration of justice, and courts must be held at the place provided by law and may not be lawfully held elsewhere. 14 A m. fu r. 269. . According to a view taken by some of the courts, to hold court and proceed with the trial of cases at a place other than that prescribed by law renders the prOceedings absolutely void so as to be the subject of collateral attack. On the other hand, aside from the many cases holding that not even reversible error results under the cirCumstances enumerated therein, it has been held that the proceedings arc not so absolutely void as to be the subject of collateral attack, however irregular they may havc ·been. JbiJ, 269. 2. HOLDING SESSIONS IN DIFFERENT P LACES. The respondent Fiscal also alleges that, pursuant to section 161 of the Revised Administrative Code, as recently amended, the criminal case against the petitioner should have been set for trial during the month of September, 193 6, in the municipality of Calbayog, because the sessions of the court in said municipality are held on the second Tuesday of said month every year. This defense is without merit because, according to said section, the Court of First Instance of Samar holds sessions in other months in different municipalitie.~, and in Catbalogan, the capital, on the first Tuesday of the months of June and November of each year. There should not have been any obstacle to the trial of the case at the capital when in fact the trials set for August 2 1, 1936, June 21, and August 21, 1936, were to be held at Catbalogan. On the other hand, the fact that there was but one session at Catbalog:tn each year should have influenced the definitive holding of the first trial set. Lastly, there was no reason to insist that the case be tried at Calbayog, because it appears that the accused never invoked such right but, on the contrary, he asked that the same be tried at Catbalogan. Kalaw vs. Apostol, el al., 38 Off. Gaz. 464, 64 Phil. 852. According to section 154 of the Revised Administrative Code, as amended by section 2 of Commonwealth Act No. 14 5, the judge which took cognizance of said P!Otest h:ts his permanent residence in the province of Cagayan, the capital of which is Tuguegarao. Section 161 of said Code, as amended by section 4 of Act No. 145, provides that the Court of First Instance of Cagayan shall hold session in April yearly on the first Tuesday of January. Except during this period the court shall divide its time for holding sessions ( between the other places fixed by law, including the capital of the province. H ad the court postponed the trial of Februuy 15th for the purpose of holding it in Aparri on March 22, 1938, it would have disregarded the law and employed part of its time for holding sessions in the capital and in the municipalities of Abulog and Tuao. This was undoubtedly the other reason which the trial court took into consideration in denying the postponement of the trial and holding the same in Aparri. When the case was called for hearing for the first time on February 15, 1938 the balrot boxes in pre240 T HE LA WYERS JOURNAL May 31, 1949 cinct No. 4 were opened and the commissioners for the revision of votes were appointed, one of them being an attorney for the petitioner, said :ittorney being notified that the hearing would be continued on the 22nd day of the next month and that then the parties would present all the evidence they desire to present. On election cases the parties and their attorneys should cooperate with the court in the prompt disposal of the same because the law directs that said ca~es be decided within one year. If the pet itioner and his attorney desired to cooperate with the court the}' would h:ive brought along their witnesses to Tugucgarao, or had they wished to save expenses, they would have taken the deposition of said witnesses for presentation :it the trial. Rosal vs. Foronda el al, 38 Off. Gaz. 3214. 3 . SESSION HELD AT A Tl1'·1E NOT AUTHORIZED BY LAW. It is essential to jurisdiction that a court be held at a time :rnthorized by law, and that were :i court is held at an unauthorized rime, all proceedings therein arc void, the express consent of the parties cannot confer jurisdiction upon the court. 14 Am. Jur. 21}4. 4. MANDAMUS. If a judge captiously refuses to hold court at a time prescribed by law, a writ of mandamus will issue, if a proper application is made by the aggrieved party at a proper time, where it appe.ars that great injury will result from the refusal of the judge and there is no other adequate specific remedy afforded the- party aggrieved. Ibid, 264. 5. POWERS OF COU llT AFTER EXPIRATION OF TERM. The theory of the common law of England, that the court could only act within a term, has been entirely abolished by the provisions of section 53 of Act No. 136, which provides that; "Courts of First Instance shall be always open, legal holidays and nonjudici:1l days cxcepte<l." At the common law, nothing can be done outside of the term unless the statute authorizes it. Under our law anything can be done outside of the term unless the statute prohibits it. Gomez Garcia vs. Hipolito et al., 2 Phil. 732. SEc. 5 5. Duty of] udges to hold court at perma11e11t station. - Judges shall hold court at the place of their permanent station, in the case of District Judges, and at the place wherein they may be detailed, in the case of Judges-at-large and Cadastral Judges, not only during the period herein :i.bove fixed but also at any other time when-t:?ere are cases ready for trial or other court business to bC dispatched, if he is not engaged else-, where. NOTES 1. Place for holding sessions. place of holding court. 2. Purpose of the law in fixing 3. Transfer of trial. PLACE FOR HOLDING SESSIONS. Constitutional and valid statutory provisions designating the place for holding court or terms or sessions thereof will be accorded effect, they being mandatory and exclusive of other places; and where the place is so fixed the court cannot lawfully be held at any other place. Proceedings at an unauthorized place arc usually held to be void, unless, as is permissible in some, although not other, jurisdictions, the pa:ries consent to the holding of a session in a place other than that appointed, It has been held, however, that under such circumstances the proceedings arc not void, the court being a de facto one, or that the proceedings arc not absolutely void so as to be vulnerable to collateral attack, especially where the only thing done by the court at an unauthorized place is the hearing of testimony, the remainder of the proceedings being taken at the proper place. 21 C. ]. S. 253 . Court cannot assume v:igrant character and hold its sessions at places other than those provided by law. Stale v. Canal Com!. Co., 203 S.W. 704, 134 Ark. 447. The Judiciary Act of 1948 Courts can only exercise their jurisdiction at place fixed by statute or rules of court authorized by statute. Rouff v. Boyd, Tex. Civ. App., 16 S. W. 2d 403. To constitute a court there must be a place appointed by law for the administration of justice, and courts must be held at the place provided by law and may not be lawfully held elsewhere. 14 Am. fur. 269. 2. PURPOSE OF THE LAW IN FIXING P LACE OF HOLDING COURT, The object of the rule requiring courts to be held at ;laces fixed by law is to obtain certainty and to prevent a failure of justice by reason of parties concerned or affected not knowing the place of holding courts. Ibid, 270. 3. TRANSFER OF TRIAL, A judge has no authority to adjourn the trial to his chambers in another county; and, where the trial is partially had in the latter county, the error is not cured by adjournment the proceedings back to the county in which the trial was started for further trial and decision. Gould v. f!ciwett, 49 How. Pr., N.Y. 57. SEc. 5 6. Special terms of court. - When so directed by the Department Head, District Judges, Judges-at-large and Cadastral Judges shall hold special terms of court at any time or in any municipality in their respective districts for the transaction of any judicial business. NOTES Taking proof in place not appointed for holding court. 1. TAKING PROOF IN PLACE NOT APPOINTED FOR HOLDING When it was understood that the testimony of these numerous voters from the first precinct of Bustos would be presented in court, rhe trial judge, at the request of the conte5tec and over the objection of the contestant, appointed a date for the taking of their ~estimony in the municipality of Bustos, of which both parties had due notice; and upon that date his H onor went to that municipality and a great number of said witnesses were there examined. It is now assigned as error that the action of the judge in repairing to the municipality of Bustos was unauthorized and that the judicial ;icts there done arc devoid of legal effect. For this reason the ap· pellant would have us declare that the testimony thus taken cannot be used in chis case. This position is in our opinion not well taken. It is true that there is no provision of law directly authorizing a court to repair to a place other than that where the court sits for the purpose of caking the testimony of witnesses, though there is a provision under which the Secretary of Justice may direct a special sessio_ n of court to be held in any municipality. (Sec. 163, Adm. Code.) It is to be borne in mind, however, that the session of court which was thus held in the municipality of Bustos was held for exclusive purpose ot: taking the testimony of witnesses and it was held during the probatory term, befol'c the cause was submitted for argument or judicial determination. Under these circmnstances the trial judge must be considered to have been acting somewhat in the character of a commissioner to take a deposition; :;.nd as it does not appear that he abused his discretion in going to the municipality of Bustos for this purpose the irregularity in so doing was not vital. Valewwela vs. Carlos a11d Lopez de Jesm, 42 Phil. 428. SEc. 57. Authority of District Judge lo define territory appurteua11t to courts. - Where court is appointed to be held at more than one pla~e in a district, the District Judge may, with the approval of the Department Head, define the territory over which the May 31, 1949 THE LA WYERS JOURNAL 241 The Judiciary Act of 1948 court held at a particular place shall exercise its authority, and cases arising in the territory thus defined shall be triable at such court accordingly. T he power herein granted shall be exercised with a view to making the courts readily accessible to the people of the different parts of the district and with a view to making the attendance of litigants and w itnesses as inexpensive as possible. SEc. 5 8. Hours of daily sessions of the courts. - T he hours for the daily session of Courts of First Instance shall be from nine co twelve in the morning, and from three to five in t he afternoon, except on Saturdays, when a morning session only shall be required; but the judge may extend the hours of session whenever in his judgment it is proper to do so. The judge holding any court may also, in his distrecion, order that but one session per day shall be held instead of two, at such hours as he may deem expedient for the convenience both of the court and the public ; but the number of houcs chat the court shall be in session per day shall be not less than five. NoT ES 1. Length of sessions. 2. Simultaneous sessions. 3. Shorre~ing or prolonging 1. LENGTH OF SESSIONS. 4. Night session. 5. Duty of judge. 6. Consequences of congested dockets. Sometimes the hours of convening court and the length of the sessions are regarded as matters necessarily in the discretion of the not at the minimum of the Jay's labors fixed by law, and which ceases not :it the expiration of official sessions, but which procee<l9 diligently on holidays and by artifici:il light and even into vacation periods. In re lmpe11ch111e11I of Florddi::a) 41 Phil. 608. 6. CONSEQU ENCES OP CONGF..STEO DOCKETS. Congested conditions of court dockets is deplorable and intolerable. It can h:ive no other 0 result than the loss of evidence, t he abandonment of cases, and the deni:il and frequent defeat of justice. Tt lowers the standards of the courts, :tnd brings them into disrepute. Ibid. SEC. 59. Clerk's duty lo attend scssio11 aud keep office honrs. - Clerks of court shall be in attendance during the hours of session; and when not so in attendance upon the court they shall keep the same office hours as arc prescribed for other Government employees. SEc. 60. Di-vision of business among branches of court of Sixth Districl. - In the court of First Instance of the Sixth District all business shall be equitably distributed among the judges of the ten branches in such manner as shall be agreed upon by the judges themselves. The District Judge of the Sixth Judicial District who acts as executive judge thereof shaII have supervision over the General Land Registration Office. Nothing contained in this section and in section sixty-two shall be construed co prevent the temporary designation of judges co act in this district in accordance with section fifty. l. Judicial functions nied. NOTES de- 4. Effect of failure to :ipportion business. trial judge. However, it is improper for the trial judge to limit · 2. sessions to such short periods, such as ten minutes e:ich, :is to preProceedings separate and independent. 5. Party has no right that his case be tried by particular judge. vent the prompt dispatch of judicial business and prolong a particular trial for a period of more than two months and compel counsel, litig:ints, :ind witnesses to attend court on a great many different days. 21 C. ]. S. 250. 2. SIMULTANEOUS Sl:.SSIONS. W here a court has a more than one judge, simultaneous sessions may sometimes, under constitutional or statutory authority, be held by the different judges. Under such authority there may be at the same time as many sessions in a single county as there are judges therein, including not only resident judges but also judges assigned to the county and those acting pro tempore. Even in the absence of statutory authority, it h:is bcl!n considered that the holding of simultaneous sessions, while an irregubrity, do:!s not render th!! proceedings at one of such sessions void :is to :i party who actuallr participated in a trial thereat. Indeed, there would be little or no advantage in having two or more judges if simultaneous sessions could not be held. 21 C. ]. S. 251. 3. SHORTEN ING OR l'ROLO NC !NG SESSIO NS. W here the duration of sessions is fixed by constitution or statute, the court has no power to shorten them, :ilthough it may prolong or extend them. Ibid. 4. N IGH T SESSION. Holding of night sessions of court is a matter resting in the discretion of the t rial judge, and a court of review will not interfere unless it clearly appears that there has been an abuse of the judge's power and that injustice has been done. Sufficient notice of :i night session is given by :in announcement thereof in open court. IbM, 250. L DUTY OF J UDGE. A judge should display that interest in his office which stops 3. Jurisdiclion not conferred by the division and distribution of cases. 6. Practice not commended. 7. Cases of particular nature. I. J u m CIA L FUNCTIO NS NOT DE N IED. Since the district court is a court of general jurisdiction, the mere division of judicial duties hr agreement of the judges does not in itself deny judicial functions to any judge of that court. Foley v. Ullrrback, 195 N.W. 721, 196 Iowa 956. 2. PROCEEDINGS SEPARATE AND INDEPENDENT. The proceedings in the various branches of a court must be separate and independent in so far as the trial of causes is concerned. 21 C.f.S. 212. 3. j URISD!CTION N OT CONFERRED BY THE DIVISION AND DIS· El reparto 0 distribuci6n de causas que de tiempo en tiempo SC hace entre los jueces de primcra instancia de Manila, mediante acuerdo de los mismos, no es lo que confiere jurisdicci6n al Juez que conoce y folla un:i causa en dicho J uzgado. La. jurisdicci6n para conocer y decidir un asunto civil, se confiere :ii Juzg:ido, y sc determina por la Icy, y sc adquiere mediante un:i demand:i } ' el debido emplazamiento al demandado. Teniendo en cucnta estos principios legales, y cl hecho de que el dcmandado fue emplaz:ido de la demanda y compareci6 y asisti6 a todas las vistas de esta causa, la jurisdicci6n de! J uzgado de Primera lnstancia, ejercida por cl Juez S, debidamente nombrado y cualificado para actuar en dicha causa, no puede ponerse en tela de juicio. Ruiz contra Topacio, 40 Off. Gaz. Eighth Suppl., p. 20 1. 4. E FFECT OF F AILUKE TO Al'f'ORTJON llUSINESS. The fai lure of the judges to apportion the labor of holding the courcs among themselves and to issue an order spcCifying the terms 242 THE LA WYERS JOURNAL l\h y 31, 1949 to be held by each judge, as required by st:itute, will not invalidate an indictment found and returned at a term held by one of them in his district. JO Am. fur. 746. 5. PARTY HAS NO RIGHT THAT JllS CASE BE TRIEO BY PART! - CULAR J UOGE. Where there arc several judges of the same court whose jurisdiction is co-ordinate, litigants have no vested right to try their cases before one of them in preference to another, unless the judge before whom a cause is pending is disqualified on some statutory ground. lbirl, 745. Litigants have the right to have their cases tried before a court held by a judge duly chosen to discharge the judicial functions of the Court, but they have no right to have their cases tried before any particular judge. 48 C.f.S. 1008. Cases are assigned to the v:irious divisions or departments as provided by statute or rule of court, and a litigant has no inherent right to hnc a case tried by a particular division or judge. Ibid., 210. 6. PRACTICE NOT COM~IENDED. . The practice of attempting to maneuver a cause before a particular judge is not commended. Hilton I'S. Mack, 15 N..Y.S. 2d 187, 257 App. Div. 709. 7. CASES OF P ARTIC ULAR NATURE. Case~ of :i particul:ir nature should be assigned to the department designated by stalute or rule of court for that type of case, but jurisdiction is not dependent on a proper assignment :ind :in irregularity in an assignment presents no question of jurisdiction in the ordinar}' sense of a timely objection thc;·eto. An assignment of the first of sever,t! identical suits will carry ;tll the orhers to the S;tme division of the court. 21 C.J.S. 211. SEc. 61. Authority of Court of First lmtauce of the Sixth J udicia! District over ad111i11istratio11 of its own affairs.- The Court of First Instance of the Sixth' Judicial District. shall have the administrative control of all matters affecting the internal operations of the court. This administrative control shall be exercised by the court itself through the clerk of the court. In admlnistrative matters, the clerk of the court shall be . under the direction of the court itself. The personnel of the office of the clerk of the Court of First Instance of the Sixth Judicial District shall consist of such officers and employees as may be provided by law. The subordinate employees of said office shall be appointed by the Secretary of Justice upon recommendation of the Chief of the office, the clerk of the court. The said clerk of the court shall receive an annual salary of five thousand one hundred pesos, and with all the employees of his office shall belong, for all purposes, to the Court of First lnstance of the Sixth Judicial District. NOTES I. Necessity of court atten- 4. Delegation of power. dants. 5. Repeated recommendations 2. Administrative officer. not necessary. 3. Control over officers. I. NECESSITY OF COURT ATTENDANTS. To perform the functions of a court, the presence of the officers constituting rhe court is necessary. In addition to the judge, or judges, the essential feature of all courts, and, in the case of courts of records, a recording officer, variously known as a "clerk," "prothonot:iry," or "register," numerous other officers are usually necessary to the existence of a court and the proper transaction of 1t5 business. 14 Am. fur. 261. The Judiciary Act of 1948 Court attendants arc a necessary adjunct to the due and orderly .1dministration of the business of a court. 21 C. f. S. 218. Court of general jurisdiction, of record, or of last resort, pos~esses the inherent power to provide the necessary attendants and assistants as a means of conducting its business with reasonable dispatch, or to provide for assistants charged with the care of its rooms or other like functions, and the court itself may determine the necessity. Ibid, 219. 2. ADMINISTRATIVE Ol'FICEIL The trial judge is an administrative as well as a judicial officer. Hamon v. foh11so11, 23 P. 2d 333, 143 Or. 532. Attendants and assistants must act in accord:mce with the judge's dil-ection, regardless of the instructions of any other per21 c. f. s. 221. 3. CONTROL OVER Ol' J' ICERS. A court has control over its own officers, and has power to protect itself or its members from being disturbed in the exercise of their functions. 14 Am. fur. J71. 4. DELEGATION OF POWER, Many executive or administrative acts performed by judicial officers and many judicial aCts performed by ministerial officers Jt'C and must be held valid. Ibid, J92. Functions which :ire essentially executive and administrative in character cannot be delegated to the judiciary. Ibid, 259. 5. REPEATED RECOM.\·IENDATtONS NOT NECESSARY. Judges authorized to recommend court attendants for appointment by county officer need not recommend names to each incoming officer, but the latter mush continue the ;tttendant's names on payroll until attendant is removed. Ham111a11 11. Thomas, 234 N. Y. S. 581, 13~ Misc. 75. SEc. 62. Appointment and qualificatious of clerk.s.-The clerk and deputy clerk of the Sixth judicial District shall be appointed by the President of the Philippines upon the recommendation of the Secretary of Justice, with the consent of the Commission on Appointments. No person sh:ill be eligible for appointment to either of these positions unless he is duly authorized to praccice law in the Philippines. NOTES l. Women eligible. 2. Oath of office. l. \'\-'OMEN ELIGIBLE. If, under the local bws, women arc eligible to hold public ministerial offices generally, and there is no express constitutional or statutory provision requiring t he clerk of court to be a male, women arc eli!;ible to th;tt office even though th:: word "his" may be used in the statutes refer:-ing to the qualification of clerks of the court. JO Am. fur. 943. 2. OATH 01' OFFICE. A legally appointed or elected clerk is not legally qualified until he has taken the oaths prescribed. 10 A111. fur. 543. SEc. 63. lllterchange of ]udges.-The judges of the several branches of the Court of First Instance for the Sixth District may, for their own convenience or the more expeditious accomplishment of business, sit, by interchange, by mutual agreement or by order of the Department Head, in other branches . than those to which they severally pertain; and any action or proceeding in one branch may be sent to another branch for trial or determination. · Ma } ' 31 , 1949 THE LA WYERS JOURNAL H3 The Judiciary Act of 1948 NOTES I. Judge of one branch may hear case of another branch. 2. Transfer of cases from one branch to :mother. 3. Request for trial by another judge. 4. Setting aside continuance granted by another judge. 1. jUDGE OF ONE BRANCH MAY H EAR CASE OF ANOTHER A judge of one br:inch or department may hear and determine, ,1 c:iuse pending in another department, or make orders in connection t herewith, where a necessity therefor arises. 21 C. /. S. 2/J . 2. TRANSFER OF CASES FROM ONE BRANCH TO ANOTH ER. A case originally assigned to one division or department may be transferred to another, without notice, unless notice is required by statute, but such t ransfer docs not affect previous orders in the case made in the department to which it then belonged, nor iS the jurisdiction of one department affected by the fact that preliminary orders were m:ide in another department. The t ransfer of a case from one division to :another is not a transfer of jurisdiction from one court to another. In accordance with statutory pro.visions or rules of court, the rr.111sfer m:iy be by a judge on his own motion, or it may be by agreement of the judges. The division or judge to whom a case is transferred or reassigned alone has jurisdiction of the case thereafter, except as to matters which have been taken under advisement prior to transfer, :ind may render judgment. Ibhl. 3. R EQUEST FOR TR IA L BY ANOTHER JU DGE. Where a case was assigned to a division of the circuit court, the request of the judge of that division that :i judge of another division hear the case w:is held valid :ind not in violation of the general rule that the division to which a case is assigned has exclusive jurisdiction. Hargadine-McKitfrick. Dry Goods Co. v. Garnchr, Mo. 227 S. W. 824. The authority for the request of one circuit judge th:it another judge of the same Court sit for him being shown, the reason therefor need not be stated in the request. Ibid. 4. SETTING ASIDE CONTINUANCE GRAN T ED BY ANOTH ER JUDGE. A judge to whom a case is regularly assigned for trial has authority in the exercise of his discretion to set aside a continuance granted by another judge and reset the case for trial. Morris v. McElroy, 122 So. 608, 219 Ala. 369, denying certiorari 122 So. 606, 23 Ala. App. 96. SEc. 64. Co11-vocation. of judges for assistance of Judge hearing laud registration matters. - In matters of special difficult}' connected with the registration of land, any judge of the Sixth District concerned may, when he deems such course advisable or necessary, convoke the other nine judges of said court for the purpose of obtaining their advice and assistance. In such case the issue or issues to be decided shall be framed in writing by the said judge and shall be propounded for determination in joint session, with not fewer than three judges present . In case of a tie upon any issue, that view shall prevail which is maintained by the judge hearing the matter. SEc . 65. Vacation of Courts of First lnsta11ce. - The yearly vacation of Courts of First Instance shall begin with the first of April and close with the first of June of each year. NoTEs 1. Vacation, defined. 3. Actions. 2. Term, defined. 4. Court shall always be open. I. VACATION, DEFINED. A vacation has been defined as "all the time between the end of one term and the beginning of :inother," and also as "the intermission of judicial proceedings; the recess of courts; the time during which courts are not held." 14 Am. fur. 269. 2. TERI\! , DEFIN ED. A term has been defined as "the space of rime during which a court holds :i session." Ibid, 265. 3. ACTIONS. Actions may be instituted at any time, whether during the session or in vac:ition of the court. 21 C./.S. 259. 4. Comn· SH ALL ALWAYS B E O PEN. A st:itute providing th:i.t court$ shall always be open for cert:iin purposes docs not repeal statutes conferring on judges certain powers to be exercised in vac_ation or at chambers. 48 C./.S. 1012. SEc. 66. Assig11me11t of Judges to vacation. duty. - During the month of January of each year the Department Head shall issue an order naming the judges who are to remain on duty during the court vacation of rhat year; and consistently with the requirements of the judicial service, the assignments shall be so made that no judge shall be assigned to vacation duty, unless upon his own request, with greater frequency than once in three years. Such order shall specify, in the case of each judge assigned to vacation duty, the territory ov.er which in addition to his own district his authority as vacation judge shall extend, and the assignments shall be so arranged that provision w ill be made for the exercise of interlocutory jurisdiction, during vacation, in all parts of the Islands. At least one judge shall always be assigned for varation duty in the Sixth Judicial District. The Department Head may from time to time modify his order assigning the judges to vacation duty as newly arising conditions or emergencies may require. A judge assigned to vacation duty shall not ordinaril y be required to hold court during such vac:ttion; but the Department Head may, when in his judgment the emergency shall require, direct any judge assigned to vacation duty to hold during the vacation a sp~cial term of court in any district. · NOTES Effect and validity of acts• 2. Power of \':\Cation judge. I. EFFEC T AND VALIDITY OF ACTS. If a judge othe~wise h:is jurisdicrion, :ind is empowered to act .lt ch:imbcrs or in vacation, his :icts, in such inst:inces, :ire as binding as if he were sitting as :i court. \When properly authorized to act in vacation, :in act in v:ication is considered :is done in term; it has been considered as though made at :i term ·subsequent to the last adjourned term. While it has been held th:it any act of a judi· cial n:iture, except such as may be specifically :iuthorized, done in vac;ation or out of court arc absolutely void, it lias also been held 244 T HE LA WYERS JOURNAL r-.fay 31, 19-+9 that, when the court has jurisdiction of the suit and of the parties, the proceedings and orders of a judge in vacation arc not void and cannot be collaterally attacked. 48 C.J.S. 1014. 2. POWER OF VACATION JUDGE. It has been broadly held that a judge at chambers has power to do everything to promote and speed justice to the parties except conduct an actual trial on the merits. Tbid, 10/J. The authority of judgCs in vacation is limited by implication to the matters mentioned in a statutory grant of authority. JO Am. fur. 748. A judge sitting at chambers or in vacation is not the court, and has no power to make an order which a statute requires to be made by the court. I bid. A judge having been transferred to another judicial district without having decided a case he had tried, th_ c va.cation ju.dg~, ac.ting by designation of the Secretary of J ustice in the d1stnc~ m which the case is pending, has jurisdiction to decide it . Roa vs. Director of Lands, 2} Off. Gaz. 169. T he judges of first instance have power to rend.er and sig.n judgment after proper trial and after hearing_both par~1es and t.hc1r attorneys in the respective provinc~, ev~n d~r1~g vaca.tlo_n, :Pr?v1ded that the judge writing the same signs 1t w1thm the JUnsd1ct1on of the Philippine Islands. Cordovero vs. Villartiz, 2} Off. Gaz. 1419. SEc. 67. Proceedings for remo·val of judges . ....:...... No District Judge, Judge-at-large or Cadastral Jud~e shall be separated or removed from office by the Pr~s1dent of the Philippines unless sufficient cause shall exist, in the judgment of the Supreme Court, involving serious misconduct or inefficiency, for the removal of said judge from office after the proper proceed~ngs. The Supreme Court of the Philippines is authonzedi upon its. own motion, or upon information of the ~e.c retary of Justice' to conduct an inquiry into the official or personal conduct of any judge appointed under the provisions of this law, and to adopt such rules of procedure in that regard as it may deem proper; and, after such judge shall have been heard in his own defense, the Supreme Court may recommend his removal to the President of the Philippines, who, if he deems that the public interests w ill be subserved thereby, shall thereupon make the appropriate order for such removal. The President of the Philippines, upon recommendation of the Supreme Court, may temporarily suspend a judge pending proceedings under this section. In case the judge suspended is acquitted of the cause or causes that gave rise to the investigation, the President of the Philippines shall order the payment to him of the salary, or part thereof, which he did not receive during his suspension, from any available funds for expenses of the judiciary. The cost and expenses incident to such investigations shall be paid from the funds appropriated for contingent expenses of the judiciary, upon vouchers approved by the Chief Justice of the Supreme Court. NOTES I. Nature of impeachment proceedings. 2. Grounds for removal. 3. Partiality and negligence. 4. Wilful a n d intentional wrong-doing. 5. Misconduct. 6. Erroneous decision. The Judiciary Act of 1948 7. Conviction of crime. 10. Evidence. 8. Accumulated cases. 11. Good faith a defense. 9. Procedure for impeachment. 12. Suspension. I. NATURE OF li\lPEAC H MENT PltoCEEDINCS. Impeachment proceedings before courts have been said, in other jurisdictions, to be in their nature highly penal in character and to be governed by the rules of law applicable to criminal cases. The charges must, therefore, be proved beyond a reasonable doubt. (State ex rel. Attorney-General vs. H asty (1913), 184 Ala., 121; State vs. Hastings ( 1893), 37 Neb., 96.) In re Tmpcachmrnt of florille110, 43 Phil. 2 12. Impeachment proceedings are in their n:iture highly penal in character, and are governed by the rules of law applicable to criminal cases. The charges must therefore be proved beyond a reasonable doubr. Ibid, Flordeliza, 44 Phil. 608. While under some constitutional and statutory provisions it has been held that proceedings for the removal of certain judges under statutory provisions arc not criminal in their nature, but are considered special proceedings, :ind :ire not governed by rules which obtain in crimin:il proceedings, under other provisions it has also been held that an impe:ichment proceeding is of a judicial, and criminal nature and governed by the nilcs :ipp\icable to criminal cases. 48 C.J.S. 979. Proceedings for the removal of judges is in its nature highly p~nal, and is governed by rules of law applicable to criminal prosecutions. JO Am. Jnr. 736. 2 . GROUNDS FOR REMOVAL. The grounds for removal of a judge of first instance under Philippine law arc two : (I) Serious misconduct and (2) inefficiency. The latter ground is not involved in these proceedings. As to the first, the law provides that "sufficient cause" must exist in the judgment of the Supreme Court involving "serious misconduct." The adjective is "serious"; that is, important, weighty, momentous, and not trifling. The noun is "misconduct;" that is, a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by the public officer. The word "misconduct" implies a wrongful intention and not a mere error of judgment. For serious misconduct to exist, there must be reliable evidence showing that the judicial acts complained of were corrupt or inspired by an intenti9n to violate t he law, or were in persistent disregard of well-known legal rules. (Lawlor vs. People ( 1874), 74 Ill., 228; Citizens' Insurance Co. vs. 1farsh (1861), 41 Pa., 386; Miller vs. Roby (1880), 9 Neb., 471; Smith vs. Cutler (l88J), 10 Wend. (N.Y.), 590; U .S. vs. Warner (1848), 28 Fed. Cas. No. 166643; fore Tighe (1904), 89 N.Y. Supp., 719.) Iu re Impeachment of Horrille110, 43 Phil. 212. Among the common grounds for removal arc wilful neglect of duty, corruption in office, intemperance to such an extent as unfits him for t he discharge of the duties of his office, incompetency, the commission of anroffense involving moral turpitude while in office or under color thereof, .conviction of a felony or of a misdemeanor involving official misconduct. JO Am. J11r. 736. Particular grounds which have been held to be sufficient to justify removal under the various constitutions and statutes include cause, abandonment of the office, intemperance, incapacity or incompetency, engaging in prohibited business or occupation, acceptance of inconsistent employment, and a lack of one more of the qualifications required to hold the office, such as that the judge shall have engaged in the practice of law for a specified period. A judge cannot be removed solely to reduce judicial expenses or because of a superfluity of judges. 48 C.J.S. 976: 3. P ARTIALITY AND NEG LIGENCE. We have decided to p.ly no particular .lttcnrion to the general May 31, 1949 THE LA WYERS JOURNAL 245 The Judiciary Act of 1948 charges of partiality and negligence which have been filed against Judge Flordcliza. Tu re lmprachmrnt of Flordcli':a, 44 Phil. 608. 4. \Xft LFUI. AND INTENTIONAL WRONGDOING. As wilful and intentional wrongdoing in receiving compensation has not been demonstrated, we are not prepared to find that sufficient cause exists in our judgment involving serious misconduct or inefficiency ~ts warrants us in recommending the removal of the respondent Judge to the Governor-General. We will take such a ~tep if foturc derelictions of duty of rhis character recur. In re I111peach111e11! of Flordl'f;za, 44 Phil. 608. 5. M 1 scoNoucT. One of the usual grounds for the remov:·d of a judicial officer is that of his mi~conduct in office. The misconduct may be that of nonfeasance 01· malfeasance. In some jurisdictions it has been held that the misconduct or mdfcasancc must have direct relation to and be connected wid1, the performance of official duties, and a~ount ci-thcr to maladministration or to wilful and intentional neglect and failure to discharge the duties of the o~fice; ~ut it has also been held that gross misconduct, or conduct 1nvolv1ng moral turpitude, will warrant removal even_ if such cond_u~t is ":?t connected with the office or docs not arise out of official dut1es. \Vhik, under some provisions, it is nccess:uy that the conduct be wilful or corrupt, under others a judge is subject to removal for delinquency in the performance of the duties enjoined by law, with· out reference to whether or not he acts willfully and corrupt!Y· Wilful neglect of the duties of the office may be a ground tor removal. It has been held that a mere breach of good taste will not warrant removal, particularly where there is only an isolated instance thereof. 48 C.J.S. 977. 6. ERRONEOUS OECISION. While a judicial determination or mista~e based mere~}' on c~ rors of judgment, and without corrupt or improper motives, will not supply a ground for removal, and this m:iy _be true alth~ugh' such errors are numi;rous, a judicial :ict based on improper motiv~s, and not on the desire to do justice or properly to perform the dut1es of the office, may be sufficient ground for removal, even t~ou_gh there is only a single such act. Ir has been held that a continwry of irregular and illegal acts may show a course of con~uct just~fy ing removal, even though a single one of such acts might possibly be considered an error. Ibid, 976. 7. CoN VICTION OF CRIME. Other grounds for the removal of a judicial officer are his violation of, and his conviction for a violation of, the criminal law, at least where the crime involves corruption or gross immorality. In order to justify removal it has been held not to be necessary that the judge commined the crime as an official or during his term of office. Under some provisions it seems th:tt it is not necessary that the conviction be within the state, a conviction in another state being sufficient. Ibid. 8. ACCUMULATED CASES. We do find, however, thlt he has not displayed that interest in his office which stops not at the minimum of the day's labors fixed by law, and which ceases not at the expirarion of official sessions, but which proceeds diligently on holidays and by artificial light and even into vacation periods. Only thus can he do his part in the great work of speeding up lhe administration of justice and of rehabilitating the judiciary in the estimation of the people. The mountain of six or seven hundred pending cases in Sorsogon could be removed by a judge of first instance of alert mind and quick • "lecision, not afraid of work, with the aid of a helpful bar and a sympathetic government. In re Impeachment of Flordeliza, 44 Phil. 608. 9. PROCEDURE FOR IMPEACHMENT. The procedure for the impeachment of judges of first instance has heretofore not been well defined. The Supreme Court has not as yet adopted rules of procedure, as it is authorized to do by law. In practice, it is usual for the court to require that charges made against a judge of first instance shall be presented in due form and sworn to; thereafter, to give respondent judge an opportunity to answer; thereafter, if the cxplan:ition of the respondent be deemed satisfactory, to file the charges without further :innoyance for the judge; while if the charges estlblish a prima facie case, they are referred to the Attorney General who acts for the court in conducting an inquiry into the conduct of the respondent judge. On the conclusion of the Attorney-General's investigation, a hearing is had before the court en bane and it sits in judgment to determine if sufficient cause exists involving the serious misconduct or inefficiency of the respondent judge as warra nts the court in recommending his removal to the Governor-General. In re Impeachment of Hor· rillrno, 43 Phil. 212. I 0. EVIDENCE. Where the proceedings for the removal of a judge are judicial in nature, ihe general rules of evidence apply, such as the general rules governing presumptions and burden of proof and the admissibility of evidence. To be sufficient, the evidence to prove the charges against the judge must be clear and convincing. While some authorities have held th.at the ground for the removal of a judicial officer should be est:iblished beyond :1. reasonable doubt, others have held that the judge's guilt must be established by a fair preponderance of the evidence. 48 C.J.S. 980. The provision of law which is authority for this deci~ion is section 173 of the Administrative Code, relating to the removal and suspension of Judges of First Instance. The grounds for removal of a judge of first instance therein provided are two: (I) serious misconduct, and (2) inefficiency. In a recent decision on the general subject of impeachment of judges of first instance, it was said that for serious misconduct to exist, there must be reliable evidence showing that the judicial acts complained of were corrnpt or inspired by an intention to violate the law, or were in persistent disregard of well-known legal rules. lit re I 111 peachment of Flordeliza, 44 Phil. 608. Serious misconduct on the part of J udge Horril!cno has not here been proved by a preponderance of the evidence, much less beyond a reasonable doubt. The most that can be said for the charges made by complainant, would be that the judge may have been careless in the performance of his judicial duties. There is extant absolutely no proof that the respondent judge has a~ted partially, or maliciously, or corruptly, or arbitrarily, or oppressively. On the contrary, the testimony of the most prominent citizens of Mindanao and Sulu including the Sultan of Sulu, Senator Hadji Butu, Datu Ussman, Governor Charles M. Moore, and practically the entire bar of Zamboanga, Jolo, and Davao is unanimously in favor of the excellent reputation of Judge Horrilleno. Sufficient of rhe cases tried by Judge Horrilleno have been elevated to this court for all of us to have become conscious of the careful performance of his onerous and responsible duties, and familiar with the excellent quality of his jud,icial output. We would be remiss ourselves if, knowing of the publicity which. has been given to the attacks on the good name of Judge Horrilleno, we should not as ~ublicly announce our faith in his judicial character. Judge Hornlleno JUstly merits and is granted complete exoneration. It results that in the judgment of the Supreme Court of the Philippine Islands, sufficient cause docs not exist involving. serious misconduct or inefficiency on the part of Honorable Antomo Horrillcno, judge of First Instance of the Twenty-sixth Judicial District, as justifies the court in recommending his removal to the Governor-General. !11 re Impeachment of Horrilfeno, 43 Phil. 212 . l l. Goon FAITH A DEFENSE. That we do not adopt the rather h:irsh doctri~es of these American cases is because the statutes there in question differ from ours and because we arc not prepared to say that a judge should be separ(Conli1111ed on page 248) 246 THE LA WYERS JOURNAL May 31, 1949 Parilo Ahrea, J1rlilio11er-appella11t, 1•s. lsabelo A. Llore11, respo11de11t-appellee, G. R. No. L-2078, October 26, 1948, OZAETA, j. I . ELECTIONS; STATUTES; CONSTRUCTION AND INTERPRETATION; EFFECT OF NONINCORPORATION OF A PRO\IISlON OF PREVIOUS ELECTION LAW IN THE REVISED ELECTION CODE. - The nonincorporation in the Revised Ekction Code of the provision of a previous election law (Act No. 42031 section 16), which said: "* •f * Nor sh:ill any vote be counted on which the c:rndidate is designated by his nickna n~ or alias, although mention thereof is made on his certificate of c:rndidacy," is indicative of the int.:ntion of the Congress to abandon it. 2. ID.; BALL 0 TS; N ICKNAMES; CAND I D ATE SUFFIC IENTLY IDENTIFIED BY N ICKNAMES.Appellee was sufficiently identified by his nickname Beloy or Biloy, first, becaus.e such nickname is a derivative, or a contraction of his Christian name Isabelo; second, because he was popularly and commonly known in the entire municipality of lnopacan by that nickname; and, third, because there was no other candidate for mayor with same nickname, 3. ID.; ID.; CANDIDATE SUFFICIENTLY IDENTIFIED BY HIS CHRISTIAN NAME OR SURNAME ONLY; RULES LAID DOWN IN CAILIES VS. GOMES AND BARBAJA, 42 PHIL. 496 AND CECILIO VS. TOMACRUZ, 62 PHIL. 689, CHANGED OR ABANDONED.Rule No. I contained in section 149 of Republic Act No. 180 reverses the doctrine or rule laid down by the Supreme Court regarding the use of the Christian name alone of a candidate by providing that-contrary to said docn ine-any ballot where onlr the Christian name of a candidate or only his surname appears is valid for such candidate if there is no other candidate with the same name or surname for the same office. The purpose of this new rule is co validate the vote provided the name written on the ballot identifies the candidate voted for ~yond any question or possible confusion wlth any other candidate for the same office. 4. ID.; ID.; N ICKNAMES; BALLOT BEARING N ICKNAME OF CANDIDATE ONLY, VALID. - W hen the nickname of a candidate is a derivative or contraction of his Christian name or of his surname, and if he is popularly and commonly known by May 31, 1949 PHILIPPINE DECISIONS that nickname, a ballot where only such nickname appears is valid for such candidate if there is no oth:r candidate with the same nickname for the.same office. 5. ID.; ID.; APPRECIATION OF BALLOTS.-A ballot is indicative of the will of the voter. It docs not require that it should be nicely or accurately written, or that the name of the candid:ite voted for should be correctly spelled. It should be read in the light of all the circumstances surrounding the el.ection and the voter, and the object should · be to ascertain and carry into effect the intention of the voter, if it can be determined with reasonable certainty. The ballot should be liberally construed, and the intendments should . be in favor of :i reading anJ construction which will render the ballot effective, r:it~-er than in favor of a conclusion which will, on some technical ground~, render it indfective. At the same time, it is not admissible to say that something was intended which is contrary to what was done; and if the ballot is so defective as to fail to show any intention whatever, it mUst be disreg.1rded. (Mandac vs. Samonte, 49 Phil. 284) 6. ID.; IO.; N ICKNAMES; EVIDENCE; PROOF OF CANDIDATE'S IDENTITY BY NICKNAME. - Tho protestee had the right to prove th1t he was popularly and commonly known by his nickname to overcome the contention of the protestant th.it the use of such nickname on the ballots in question did not sufficiently identify the protestee as rhe candidate voted for. 7. ID.; IO.; ID.; INQUIRY TO VOTES CAST LIMITED.- The trial court acted properly in limiting rhe inqu~~, to the number of votes cast for the protestee with only his nickname written on the ballots, bcc:iuse the basis of the protest was not th:it the election inspectors had erred in counting all the votes cast for e:ich of the two can<lidates but rh:it they .erred in co1inting in favor of the protestee 417 votes in which only his nick nam~ was used. No fraud, mistake, or misreading of the ballots was alleged in the protesr. The issue presented to the court was confined to whether there were really 417 vor.es for the protestee in which the nickname Beloy alone was written and whether those votes \\'ere valid or PERFECTO, /., concurring: 8 NICKNAMES.-As a general rule, votes cast in nicknames written i11 isolated ballots, should not be given effect in accordance with paragnph 9, Sec. 149, in connection with Sec. 34 of the Election Code. 9 C L E A R INTENTION OF THE ELECTORATE.-Wh.:n the evidence on record shows that the nickname written in the ballots express the intention of the electorate to vote for a candidate, that intention must be given effect. 10 CONCLUSIVE EVIDENCE.-T he fact that 602 ballots were cast with the names of Beloy, Biloy and Belog, nicknames of the Christian name Isabclo of a candidate, is conclusive evidence that the electorate vored in fact for said candidate. 11 LEGAL TECHNICALIT IES.-Legal technicalities should be brushed aside for the sake of the fundamenta l purpose of popular suffrage: that of giving effect to the will of the people as freely and clearly expressed in the ballots. 12 . BASIC PRINCIPLE OF POPULAR SOVEREIGNTY. - Statutory provisions and judicial doctrines on elections arc enacted and laid down to insure the determination of tltz true will of the people in consonance with the basic principle of the Constitution that "sovereignty resides in the people and all government authority emanates from them." 13 THE SUPREME LA W.-All provisions of law and legal doctrines should be interpreted, applied and enforced not to defeat but to give effect to the basic principles of the Constitution. The Constitution is the supreme law and all leg:il provisions are and should give way to its paramount authority. Afl)'S. Do111i11ador M. Tan, Braulio G. Af/1H'O f5 Co11rado G. Abirra ;rnd Dominador i\ I. H. 1fr }uy11 for tlw petilioner-appcllant. Allys. Domingo Vl'foso ;ind Ciulre11cr Veloso for the r~spondent-app<'llee. DEC I SION 0zAETA, /.: In the general elections of November 11, 1947, appellant Pacito Abrea and appellee lsabclo A. Lloren were the candidates for the office of municipal mayor of lnopacan, leyte. In his certificate of candidacy appellee Isabelo Lloren stated that he was also known by th.z followin!; names: Isabelo A. Lloren, lsabclo Lloren Abrea, Beloy Lloren, I. Lloren Abrca, Loy Lloren, and Loy Abrea. 247 Philippine Decisions The municipal board of canvassers proclaimed Jsabelo Llorcn municipal-mayorelcct with 1,010 votes, which g:ivc him a majority of 198 votes over Pacito Abrca, who obtained only 812 votes. Pacito Abrea protested the election of his opponent on four grounds, only the first of which is rdied upon by him in chis apappe:il, co wit: "(a) That a cot:il of 417 votes c:ist in :ill the prccints in said municipality in favor of one Beloy :is clearly wrim:-n in the ballots were credited and read in favor of the above respondent." In the course of t~ trial the b:illot boxes were opened, and it resulted that 517 votes wer.e cast for the office of municipal mayor in che name of Beloy, 77 votes in the name of Biloy, :md 8 votes in the name of Belog. The trial court found-and its finding is not questioned in this appeal-that it had b.een clearly proved that the protestee Isabelo A. Lloren was popularly :ind commonly known in the whole municipality of Jnopacan by his nickname Beloy or Bi\oy; and that the pro1estant himself proved that before and on the day of the election the protestee distributed sample ballots on which was written the name Beloy on the line corresponding to the office of municipal mayor. The trial court ::ilso found th::it in the said elections in Inopacan there was no other candidate for mayor or :iny other office who was known by the name Beloy. Declaring that the votes for municip:il mayor in t~ names of Belay, Biloy, anJ Belog had been correctly counted in favor of the protest.cc, the trial court confirmed the procbmation made by the municip:d bo:ud of canv:issers :ind declared the protestee municipal-m:iyor-clect of lnop:ican, ordering the protestant 10 pay the costs. From th::it judgment the protest:int has appealed to this court upon the questions of law which we shall now discuss. I. Appellant's main contention is t hat the 602 ballots in which only the nickname Beloy, Biloy, or Bclog was voted for municjpal mayor should have been rejected, thereby adjudicating only 408 votes to the appdlee :igainst the appelbnt's 812 votes. In other words he contends that :ill ballots in which only the nickname of the :ippcllee was written were invalid for said candid:itc. In support of his contention he cires paragr:iph 9 of section 149 of the Revised Election Code (Republic Act No. 180), :tpprovcd June 21, 1947, which reads as follows: "9. The use of the nicknames 1nd 1ppdladons of affeetion and friendship, if 1ccompanied by the name or surname of the candidate, does not annul tuch vote, ucept when they were used as a means to identify their Hsptctive voters." The foregoing is one of twenty-three rules for the appreci:ition of ballots contained in section 149 of the Revised Election Code, the first two n.iles being the following: "!. Any ballot where only 1he Chrinian name of candiduc or only his surname appurs i1 valid for such candidne, if there is no other candidate with the umt name or 1urname for the umc office; but when rhc word written in the ballot is at the same time the Christian name of a candidate rnd the surname of hi, opponent, 1lic vote shall bl: counted in favor of the hucr. .. 2. A name or surname incorrccdy written which, when- read, has a sound equal or simi!u to the rul name or surname of the candi.late shall be counted in his favor." Rule No. 9, wbich is,relied upon by appelbnt, provides only for the determin1tion of whcdu:r a b:illoc or vote shall or shall not be annulled on the ground th:it it is marked by means of a nickname. It s::iys that it sh:ill not be annulled on dat ground unless the nickname, ::iccomp:inied by the name or surn:ime of the candidate, was used as :t means to identify the voter. It does not s:iy that when a nickname alone is written to identify the· candidate voted for the \'Ote is invalid. If it h:id been the i n ten~ tion of the Congress to annul such vote it would h:ive preserved in the Revised Election Code the provision of a previous election l:iw (Act No. 4203, section 16), which said: •• • • • Nor shall any vote bl: counted on "'·hich the ondidHe ;, de•lgnatcd by hi1 nickname or alias, although mtntion 1huco( ;, made on his ccrtificnc of cmdidacy." The nonincorporation of th:it provision or rul.c in the Revised Election Code is indicative of che inten1ion of the Congress to abandon it. It is not conunded by the ::ippcllant that the 602 votes in question should be annulled as marked b::illots. His comcntion is th:it they should noc be counted in favor of th.':! appellee because the latter was not JUDICIARY ACT ... (Co11ti1111rd from p11gr 246 ) sufficiently identifi.ed by his nickname Deloy, Biloy or Bclog. We agree, however, with the trial court' th:it the appellce was sufficiently identified by his n,ickname Bcloy or Biloy, first, because such nickname is a derivative, or a contraction, of his Christian name Isabelo; second, because hr. was popularly and commonly known in the entire municipality of Inopacan by that nickname; and, third, because there was no other c:indidate for mayor with the s:ime nickname. We do not deem it necessary to decide whether the eight votes for " Belog" are valid or not, because they arc immaterial to the result. Previous to the enactment in 1938 of the Election Code (Commonwealth Act No. 35 7) the rules were: ( 1) that ballots bc::iring the Christian name only or the Christi:in name and th.c initial of the surn:ime of one candidate should be rejected as insufficient to identify the person voted for · (Cailles vs. Gomez and Barbaza [1921], 42 Phil. 496, 533); and (2) that, for the same re:ison, votes cast with only the nickname or the familiar name should not be counted in favor of any candid'.l.tC (Cecilio vs. Tomacruz [ 1935], 62 Phil. 689). But such rules were ch:inged or abandoned by the legislature when it enacted section 144 of Commonwealth Act No. 357 and, subs.equently, section 149 of Republic Act No. 180, which provided rules for the appreci:ition of ballots. Said section is a compilation in statutory form of most of the doctrines theretofore laid down by the Supreme Court reg:irding the app1·cci:irion of b:illots. Rule No. 1 contained in section 149 reverses the doctrine or rule bid down by the Supreme Court regarding the use of the Christirn name alone of a c:1ndidatc by providing tlut-contrary to said doctrine-any b:illot where only the Christi:in n:ime of a candidate or only his surname appears is valid for such c:indidate if there is no other c:indidate with the same name or surname for the same office. The purpose of this new rule is co valid:ite the vote provided the name written on the ballot identifies the candidate voted for beyond any question or possible confusion with any other c:indidate for the same office. Hence, conformably to such purpose we hold that when the nickname of a candidate is a derivative or contraction of his Christim name or of his surname, :ind if he is popubrly and commonly known by ated. from of~ice where he apparently is acting in good faith, under a m1sconcepuon of the law. In re lmprachment of Flordrfi..,11 44 Phil. 608. - ' 12. SUSPENSION. . Statu.tes sometimes authorize the temporary suspension of a .Judge dunng the pcndency of proceedings for his remov:il. Such a statute is not .in con~lict with a constitutional provision fixing the ~e.rms of office of Judges :ind providing for their removal for specified c:iuses after a hearing. Notice and a hearing are not CS· 1:ential to due process of bw, and arc not rcquirCd where the statute does not provide for them. JO Am. fu r. 737. (To BE CONTINUED) 248 THE I.A WYERS JOURNAL tlut nickname, a ballot where only such nickname appears is valid for such candidate if there is no od1cr candidate with the same nickname for the same office. This ruling is in consonance with the wellknown principl.: of election law which this court reiterated in Mandac vs. Samonte, 49 Phil. 284, 301-302, as follows: "A bllot is indicuin of the will of chc voter. It d<X• not require thn it should be nicely or accuutcly written, or that the name of the candidHc voted for •hould be correctly spdlcd. It should be read in the light of all the circumstances surrounding the dcction and the voter, and the object should be to asccruin ond cury into effect the intention of the votu, if it can be determined with reasonable certainty. The ballot should be libcr•lly construed, and the intendmcnts should be in favor of a reading and construction .which will render the ballot effective, rothcr than in favor of a conclusion which will, on some technicol grounds, render it ineffective. At the Hme time, it is not admissible to uy thH something w.s intended which is contrary to what was done; ond if the ballot is so defective as to fai l 10 show any intention whatever, it must be disrcg.rdcd." 2. Appellant furthr.r contends that "the lower court erred in admitting evidence aliunde to determine the intention of the voter." Counsel in his brief does not specify what evidence he is referring to, nor does he show thJt it was admitted O\'er his objection and exception. He merely says: "The fact that in its decision the lower court makes a conclusion that the protestee is popularly known in his place by the nicknames already mentioned, presupposes consideration of testimonial evidence ro influence its mind in making said conclusion." He evidently refers to the proof upon which the trial courr based irs finding ,hat the protestce was popularly and commonly known in the whole municipality of lnopacan by the nickn~me Bcloy or Biloy. \Vie do not feel bound to consider the admissibility or inadmissibility of such proof in the absence of any showing th1t the adverse party duly interposed an objection co its :tdmission. But we think the protestee had the right to prove. that he was popularly and commonly known by his nickname to overcome the contention of the protestant that the me of such nickname on the ballots in question did not sufficiently identify the protestec as the candidate voted for. }. Lastly, appellant contends that the lower court erred in not ordering the recounting of all the votes of the contending candidates. We think the trial court acted properly in limiting the 'inquiry to the number of votes cast for the protestee with only his nickname written on the ballots, because the basis of the protest was not that the election inspectors had erred in counting all the votes cast for each of the two candidates but that they erred in counting in favor of the protcstce 417 votes in which May 31, 1949 only his nickname was used. No fraud, mistake, or misreading of the ballots was alleged in the protest. The issue presented to the court was confined to whether there were really 417 votes for the protestee in which the nickname Beloy alone was written and whether thos.e votes were valid or not. lf there were at least 417 of such votes and they were not valid, the protestant should win bec:tuse the protcstce's majority was only 198 votes. The inquiry brought out the fact that there were more than 417 of such votes; but as a matter of law the court found that they were valid. We confirm that finding. The judgment appealed from is affirmed, with costs. SO ORDERED. Mora11, C. ]., Paras, Pablo, Be11gzon, Briones, and. T11aso11, J /., concur. Feria, Montemayor :ind Rryrs, JJ., did not rake p:trt. PERFECTO,/., concurring: Two candidates ran for mayor of Inopa· can, Leyte, in the elections of November 11 , 1947: Isabelo A. Llorcn, Liberal, and Pacita. Abrea, Nacionalista. The Liberal candidate was proclaimed elected with 1,0 10 votes, with majority of 198 against the Nationalista who was credited with S 12 The Nacionalista protested, seeking the annulment of 417 ballots in which Beloy was voted for mayor and were credited H votes for the Liberal candidate. When the ballot boxes were opened, it was found that the names of Beloy, Biloy and Be!og appeared written in the following numbers of ballots: Beloy 517, Biloy 77 and Beloy 8. All these 602 ballots were counted among the 1,0 I 0 votes credited to the Liberal candida.te. The Nacionalista candidate contended in the lower court and in this a.ppeal that the 602 ballots with the three nicknames should not be counted as votes for the Liberal candidat.c, invoking the numerous decisions of the Supreme Court holding that nicknames alone are not sufficient identific:ition of a candidate. "(Molina v. Nuesa, G. R. No. }0548, June 5, 1929, not reported; Alegre v. Percy, G. R. No. }107, March 26, 1929, not reported; Valenzueh v. Carlos, etc., 42 Phil., 428; Bayona v. Siatong, 56 Phil., 831; Marquez v. Santiago, 57 Phil., 969; Fausto v. R:imos, 61 Phil., 1035; Sarenas v. Generoso, 61 Phil., 459; Cecilio v. Tomacruz, 62 Phil., 69}; Coscolluela v. Gaston, 63 Phil., 41; etc.)." Paragraph 9, Sec. 149, of the Election Code, taken jointly with the provision of Sec. 34 thereof, th:tt provides that "certificates of candidacy shall not contain nicknames of the candidates" and the fact th'lt THE LAWYERS JOURNAL Philippine Decisions the nicknames alone in question are not mentioned by the Liberal candidate among the many names he has mentioned in his certificate of candidacy with which he alleged he is known, aside from the long line of decisions of the Supreme Court, appear to support the contention of the Nacionalista candi.date. We arc of opinion,' however, that all these legal reasons must give way to the unmistakable expression of the popular will. - The record of the case offers conclusive evidence that those voters who cast their ballots for the three nicknames in question ~ntended in fact to vote for the Liberal candidate who is known by the electorate, friends and opponents, by the nicknames in question, derivatives of his Christian name and ar.c among the nicknames with which the people call for short those who carry the same Christian name. It iS inconceivable to nullify the votes of so many voters, more than one-h:i\£ of those who voted for the Liber:il candidat::-, when there is no possible mistake that they have voted for said candidate. While we would not give effect to isolated ballots simply in nicknames, that may refer to persons other than a candidate, in abidance with the legal authoritir.s above mentioned, in this specific case we feel no hesitancy in brushing them aside as ineffective legal technicalities for the sake of the fundamental purpose of popular suffrage: that of giving effect to the will of the people as freely and clear!}' expressed in the ballots. Election statutory provisions and judicial doctrines are enacted and laid down to insure the determination of t~ true will of the people and to give it full effect, in consona.nce with the basic principle of the Constitution that '1sovereignty resides ih the people and all government authority emanates from them." (Sec. 1, ' Art. II.) All provisions of law and legal doctrines should be interpreted, applied and enforced not to defeat that basic principle but to give it foll effect. The Constitution is the supreme law and all lega.I provisions arc and should give way to its paramount authority, . We cohcur in the affirmance of the appealed decision. II Froila11 Lopez, plaintiff-appellee, V{· Silvestre de Jews, defendant-appellant, G. R. No. L-JJ4, September 30, 1946, PARAS, J. LEASE; DURATION WHEN NOT STIPULATED; TERMINATION; COMMONWEALTH ACT NO. 689, APPLICABILITY OF; CASE AT BAR. - As the leose did not have a fixed term, it should be considered Philippine Decisions as one from month to month (the rental being payable monthly) and to have ceased, without the necessity of special notice, upon the expiration of every month. (Article IS81, Civil Code.) Even if, as contended by the :ippellant, a novation took place when the appellee increased the rent in June, 1945, the le:isc was srill monthly and terminated after said month. Appellee's election to end the lease was unmistakably made known to the appellant when, on July 2, 1945, tliz latter was asked to vacate. Consequently, after June, 1945, there was no longer any lease that could be affected by section I of Commonwealth Act No. 689, which was enacted only on October 15, 1945. APPEAL from a judgment of the Court of First Instance of Manila. De la Rosa,). The facts are stated in the opinion of the court. Atty. Arturo Ziulcila for defendant-appellant. Allys. Gu111/J(J11 f5 E111•rrg11 for pbintiff:i.ppellee. PARAS, /.: The plaintiff is the owner of :an apirtment known and identified as No. 2227 Rizal Avenue, Mmila. This apartment has been occupied by the defendant since September, 1940, under a verbal contract of lea!.e calling for. :i monthly rental of P 3 5 p:ayable in advance, which was raised by the plaintiff to 'fl'44 in June, 1945. On April 2, 1945, and again on July 2, 1945, the plaintiff gave notice to the defendant for him to vacate the premises. Defend:ant's failure to do so led to the filing, on July 1945, by the plaintiff of an .action 1>.+4-an act which resulted in :i novation of the original lease. Counsel for the appellant is mistaken. As the le:asc did not have a fixed term, it should be considered as one from month to month (the rental being payable monthly) :ind have ceased, without the necessity of special notice, upon the expiration of every month. (Article 1581, Civil Code.) Even if, as contended by the appellant, a novation took place when the appellee increased the rent in June, 1945, the lease was still monthly and terminated aftr.r said month. Appcllee's election to end the lease was unmistakenly made known ro the appellant when, on July 2, 1945, the lat· ter was asked to vacate. Consequently, after June, 1945, there was no longer any lease that could be affected by section 1 of Commonwealth Act No. 689, which was enacted only on October 15, 1945, even assuming that said law is applicable to a legal 'relation that came into being prior to its enactment. From the equitable viewpoint, app~l lant's case cannot also pl'osper.• He might hav:! been an old tenant now facing the difficulty of finding another house, but this circumstance cannot nullify the !cpl .rights of the :appellee and his family who have been admittedly "comp:-llcd to live upon the charity of some friend who generously offered them temporary shelter in his house which is overcrowded, to say the least." · The appealed judgm.~nt is affirmed, with costs against the appellant. So ordered. PJblo, Prr/rclo, Hilado, and Pad if/a, J /., Judgment affirmed. Ill Bien 11e11ido Yap, petitioner-appcllee, vs. The Solicil<Jr General, opposilor-appefla11t, G. R. No. L-1602, September 9, 1948, PERFECTO, j. for ejectment in the municipal court of Manila which, after trial, handed down a decision in favor of the plaintiff. The defendant appealed, but the Court of First Instance of M:anila, in which the parties submitted a stipulation of facts, rendered a judgment for restitutio.n and the payment I · of the monthly rental of PH beginning POLITICAL LAW; CITIZENSHIP; NATURALIZATION; DECLARATION OF INTENTION TO BECOME FILIPINO; ORAL EVIDENCE, SUFFICIENCY OF.-Where the records have been lost, oral testimony of the :i.pplicant that he had filed his dccl:tracion of intention to become a Filipino citiz.~n, is sufficient. ID.; ID.; ID.; CHINESE LAW, NATURALIZATION OF FILIPINOS UNDER.-Under the Chinese Law of citizenship, a copy of which was attached to th.e record, a Filirino can acquire Chinese citizenship by naturalization. June I, 1945. Appealing again, the defendant-through his counsel-argues that the action for ejectment was prematurely instituted and that, at least on equitable considerations, he should be allowed to stay. Section 1 of Commonwealth Act No. 689 provides that "A lease for the occu- 2 parion as dwelling of a building or part thereof which is not :a room or rooms of an hotel, which does not specify any term, sh:ill be considered of six months' duration counted from the date of occupation by virtue of uid lease at the option of the lease." It is now the theory of the appellant that since the period of his lease was not specified, he has the right to remain as lesree for at least six months from June I, 1945, when the rental was increased to Ally. R. D. St1lrcdo for the pecitioncr-appellcc. Tbl' Solid/or Gr11eral for the oppositor::ppdl:tnt. nm LA WYERS JOURNAL DECISION PERl' ECTO, /.: Bienvenido Yap w:is born of Chine~.: parentage on May 27, 19 18, in Capiz, where he has been continuously residing ever since. He speaks and writes English and Hiligaynon, the Visayan language in the locality. He started his stUdies in the Capiz Chinese Elementary School and continued in the Capiz High School where he was in the fourth ye:ir at the outbrc:ik of the la~t war. He is married to Gloria Lim, a n.1tiv.e, born of a Chinese fother :i.nd by this union he has two children born in Capiz, Wilfred Yap on May 26, 1944 and Rou · bin Yap on April 12, 1946. He is engaged in business with an invested capital of 'P"l 0,000.00. During the occupation he rendered services to the guerrillas. The lower court granted his application for P~ilippinc citizenship. The Solicitor General raises two questions in this appeal. He contends, in chc first place, that the lower court erred in not findi ng that the applicant has failed to establish satisfactorily that he had previously filed his declar:ition of intention to become a citizen of the Philippines :ind that he is nor' exempted from the prerequisite of fili ng s:iid declaration. Applicant alleged under oath in his petition that he had filed his declaration of intention to become a Filipino citizen with the office of the Solicitor General in 1941, :ilthough all the records have been lost by reason of the war. This :illegation is not disputed in any answer or objection and is supported by the unreburred testimony of applicant, who was duly cross-examined in the trial court. This is enough evidence. Appellant's contention that applicant's tes· timony should be supported by documentary proof is not well taken. There is nothing in the law in support of such requirement. The second and last question r:iiscd by the Solicitor General is that the lower coun erred in not finding that applicant !us failed to establish that the laws of China grant Filipinos the right to bccomi.> naturalized citizens thereof. We find on record Exhibit E, a document supposed 10 be a copy of the Chinese law of citizenship, where it appears that a Filipino can acquire Chinese citizenship by naturalization. Although we do not see an}' certification :attached to the exhibit, thi: lower court's decision states thu ~pplicant's pronouncement is in a w"ay supported by th.~ fact due Exhibit E carries the dry seal of rhc Court of First Instance of Cebu. The pronouncement of th.e lower court hJs not been disputed, and it can be assurn.~d that when the copy was submitted to the lower court, the latter must have seen :1 certification ; J.tt:ached to M:iy 31, 1949 it which might have been misplaced. At any rate, the controversy appears to be academic, considering the Lier that at the hearing of this ca!c, counsel for appellant stated that in another case there is such certified copy of the Chinese law where it appears that Filipinos arc given the right to acquire Chinese citizcnshl?. There being no error in the appealed decision, the same is affirmed. Pa11;1s, Pablo, Brio11rs, Feria, 8"11gi;o11, Pad;ffa and T11aso11, J!., concur. IV Conrnclo S. tic Gal'cia, A11aslacio U. Garcia, Virginia S. de Mnreses a11J Alfredo n1rri.esrs, pelifio11ers, vs. Amlr.wio Santos, judge, Court of flrst Instance of Rizal, Natividad Reyrs and Adriana Reyes, respondents, G. R. No. L-142Z, Oclober 17, 1947, PARAS, j. INJUNCTION; PRELIMINARY INJUNCTION TO PRESERVE "STATUS QUO."-The respondents had been in material and physical possession of certain lots until January 7, 1947. In December, 1946, they commenced to build four houses of strong materials on said lots and the construction work was suspended only on Jan• uary 7, 1947, due to the forcible entry of petitioners who thereafter built around the lots a wire fence and placed armed men pn the premises to makc the ouster of respondents and their laborers effective. Held: T hat petitioners' act may at most be considered as a mere interference with or disturbance of respondents' possession and that the issurnc.c of a preliminary injunction to restore respondents in rhcir status quo was proper. 2. IO.; POSSESSION AND CONTROL OF PROPERTY.- lnjunction generally will not be granted to take property out of the possession or control of one party and ,place it into that of another whose title has not dearly been established by law (Rodulfa vs. Alfonso, G. R. No. L-144, promulgated February 25, 1946, 42 Of. Gaz. 2439). l. ID.; PRELIMINARY INJUNCTION TO PRESERVE "STATUS QUO."The sole object of a preliminary injunction is to preserve the status quo until the merits can be heard. The slallls quo is the last actual peaceable uncontested 5faf11s which preceded rhc pcnding controversy. 4. ID.; COURT; HEARING; JUDGE ACTED AFTER DUE HEARING.Where injunction was granted by the respondent Judge almost two months after the filing of the complaint, and !\fay }I, 1949 only after the rarties had argued the point in open court and after considering the vcrificd pleadings with their supporting papers, and the petitioners were able to file a motion for reconsideration, which was also denied by the respondent Judge after raking into account all the considerations invoked by the petitioners, the respondent Judge did not act hastily in the matter and without hearing. Allys. Q. P11redcs f5 Reyes fj Casla1ieda for the petitioners. Ally. Mariano Albert foi- the respondents. DE· CISION PARAS, /.: Under date of January 22, 1947, the herein respOndents, Natividad Reycs and Adriana Reyes, filed a verified complaint (Civil Case No. 129) in the Court of First Instance of ..Rizal against the herein petitioners, praying that a writ of preliminary mandatory injunction be issued ordering the petitioners to restore to the respondents the possession of two contiguous lots located in the municipaliy of Pasay, province of Rizal, and to take away the wire fence built around said lots by the petitioners; that after trial said injunction be made permanent; that the petitioners be sentenced to pay P20,000 by way of damages, and that the respondents be granted such other remedy as may be proper un· der the law. The complaint alleges in sub· stance that the respondents acquired the two lots on June 6, 1945, from their former owner, Realty Inv.:stments, Inc.; that from such date the respondents have been in possession of the lots; that in December, 1946, the latter began constructing on the lots four hou~es of strong materials valued at about 'P-14.400; that on Januarv 7. 1947. when the houses were about to b.e fin ished. the petitioners forcibly entered the lots and ousted therefrom the respondents and the persons comtructing the houses; that said petitioners thereafter built around the lots a wire fence and posted armed men on the lots with a view to preventing the respondents and their laborers from entering tl1erein and proceeding with the construction of the houses above mentioned. Under date of February I, 1947, th~ pr.titioncrs filed ·a verified answer in said Civil Case No. 129, alleging in the main that the contract of June 6, 1945, between the Realty Investments, Inc. and the rcspondehts, upon which the latter base their claim of ownership over the lots in quest ion, was a mere contract to sell, which was converted on April 26, 1946, into a conditional contract to buy, which waS in turn rescinded on December 19, 1946, by the Realty Investments, Tnc.; that the pc· THE LA \'VYERS JOURNAL Philippine Oecisiohs titioncrs arc the registered owners of tlv! lots, having bought the same from the Realty Investments, Inc. on December 28, 1946; that the petitioners have be.en in peaceful posression thereof, by themselves and through their predecessor in interest. Pararam Aildos (who transferred to the petitioners his right to buy the lots from the Realty Investmerlts, Inc.), since November, 1941; that the respondents, on or about December 28, 1946, over the opposition ol the petitioners and their predecessor in intercst, entered the lots and began th.c construction of the four houses mentioned in the complaint; that it was the mayor of Pasay who ordered the suspension of said construction, and that the persons guarding the premises arc members of the Detective and Protective Bureau, Inc., who arc merely enforcing the order of said mayor. UnPer date of February 1, 1947, the petitioners filed a verified written opposition to the issuance of the writ of preliminary mandatory injunction, based on practically the same allegations contained in their answer. After a hearing in which the matter was argued at length, the herein respondent J udge of the Court of First Instance of Rizal, Honorable Ambrosio Santos, issued an order dared March 14, 1947, directing the issuance of the writ of preliminary mandatory injunction praved for by the respondents, upon their fi ling- of a bond in the sum of 'P5 ,000. Petitioners' motion for reconsideration dated March 2!1 . 1946. was denied bv the resoondent J udec in his order of April 1 5, 1947. On thi~ !arr.er date, the resoondent Judee i~sued ;rn order approvin~ the bond of 'P5,000 filed bv the resoondents and directin.ir the i~s11ance of th".' corresoon din~ writ of preliminary mandatory iniunction. Wht.>rcupon. on Aoril 19. 1947. the peritioners instituted the nresent petition f'lr certiorari with weliminarv iniunctinri. nraving th:it the orders of ch.- resoondrnt Tud~c of March 14 and Anril 15. 1947. ~nd that the resoondent Tud!'!e be orderrrl to set Civil case No. 129 for trial on tl1e merits \(lith a view to determining- the que~· tion of titk and possession over the two lots in question. 'The respondent Judge. without attemotin.e- to settle the issue relating to the ownership of the lots. found, in l1is order of March 14, 1947, that the respondent have been in material and physical possession of the lots until January 7, 1947, and that in December, 1946, said respondents com* menced to build four h~uses of strong materials on said lots and the construction work was suspended only on January 7, 1947, due to the forcible entry of th".' petitioners who thereafter built around the 2S I Philippine Decisions lots a wire fence and placed armed men on the premises to make the ouster of the respondents md their laborers dfective. After a careful examination of the record before us, we find said conclusions to be correct. le is significant that the petitioners admit the existence of a contract in fa vor of the respondents for the purchase of the lots in question, and that said con · tract preceded the alleged deeds of sale executed by the Realty lnvr.stmcnts, l nc. 011 December 28, 1946, in favor of the petitioners. More significant still is the stub· born fact that there arc actually on the lots four houses of strong materials about to be fi nished, the construction of which by the respondents in December, 1946, is not denied by the petitioners. These circumstances strongly militate against petitioners' pretense that they had ev.~r been in peaceful possession of the lots prior to that of the herein respondents. The legal question that arises is whether the issuance of a writ of preliminary mandatory injunction, such ;is that ordered by the respondent Judge, is prop~r. in view of the established rule that injunction generally will not be gr.meed to rake property out of the possession or control of one party and place it into that of :mother whose title has not deuly been .established by law. (Rodulfa v. Alfonso, G. R. No. L1-44, promulgated February 28, 1946, 42 0. G. 2439, citing earli.er cases.) We arc of the opinion that the respondent Judge did not gravely abuse his dis· cretion in granting the injunction. We hereby reiterate the general rule poinced out in Rodulfa v. Alfonso, wpra, but we con· sider the case at bar as not falli ng thereunder. Rather, it is a situation contem· plated in the following passages of said decision: " But the fact thn 1he petitioner migh1 hnc been in sporadic possession of all or wme of 1he hnd1 in question, in the Int month1 of l9H, having entered 1he same, by muns of threats and intimidation, will not prevent the i.suance of a writ of preliminary injunction in fnor of herein re1pondcnt, aJ defendant in said civil O«: No. 8939, in . •·h~ name uid lands h>'d bttn rogi1tcred under the Torrens Sysum, and who hn been in pos«:ssiOn thereof, during the Ian 20 yorl, as uid poucuion of the petitioner is completely and ab.alutcly illcgal. "The wli objut of a preliminary injunction i1 to preStrvc the •ldl11• quo until the merits cm l::c hurd. The 1/alus quo is the bn .c1ual pucuble uncontested s/a/l/S which pHceded the pending controversy. (Frederick n. Huber, 180 l'a., P2; )7 Atl., 90.) "In cnos involviug the issuance of a writ of · preliminary injunction, the exercise of sound judicial diKretion by the lower court will not generally be interfered with; and 1he rcfuul of the trid court to permit t he plaintiff in thii "'" to file a cou nterbond cannot be considered a• all abuse of sound judicial consideration, brari11gi11 ,,,;.,J partlcu/ar/y tlu aJminirm nuult by tbc plaintiff bimu lf tbnt somelimr in 1945, or tbcrrabou l1, bt ocropitd and took po11mio11 of .11 or iomt of tbr l••1Js ;,, q1mtio'1, witho11/ wailing for the /i .. al dt252 cision of tht coniptlrnt COJfrh in uiJ cii;if cue No. 89JO. It if a gr'1t"ral principle iH rq11ity j11ri1· pmdrufr tbut 'hr ubo rumrJ lo eq11ify •m•ll rome witb clr4n band1.' (North Nogro1 Sugir Co. v1. Hid.Igo, 6J Phil., 66-4.)" Rodulfa v. Alfonso, wflrd. The action of the ~titioners in encir· cling the lots in question with a wire knee :tnd in guarding the place, may at most be considcrd as a mere interference with or disturb;rncC of respondents' possession and, :u such, is even of less extent than t he possession admitted!}' held by the petitioners in the case of Rodulfa v. Alfonso, rn - pra. We h:tve therefore, a 111uch better instance in which a preliminary injunction m:iy be availed of "to preserve the status quo until the merits cm be heard." Said status quo is the "last actual peace;ible and uncontested" possession of the herein respondents which preceded Civil Case No. 129, and certainly not the guarded possession of thC petitioners. The n.~ccssity of restoring the parties in this case to th.'!ir former situ:ition is called for by the fact that the suspension of tl.1e construction of respondents' houses may result in a much greater damage than the granting of the injunction upon the filing of a bond which can amply indemnify the herein petitioners. The injunction was granted by the respondent Judge almost two months after the fi ling of the complaint, and only after the parries had argued the point in op~n court and after considering the verified pleadings with rhcir supporting papers. Again, the petitioners were able to file :i motion for reconsideration, which was also denied by the respondent Judge after taking into account all the considerations invoked by the petitioners. We are thus unable ro hold that the respondent Judge acted hastily in the matter and without a hearing. Of course, it was not yet necessary for the respondent J udge tO require and receive such evidence as may be sufficient to settle the question of tide, which should be decided after the trial on the merits. It is needless to state in this connection that the complaint in Civil Case No. 129 clearly makCs out an action co quiet title. Wherefore, the petition is hereby dismiss~ ed with costs against the petitioners. So ordered. Feria, Pablo, Per/rclo, Hilado Bengzon, Briones, Padilla and T11aso11, ff., concur. Moran, C.j., concurs in the result. v Proj1le of the Philippines, plai11li/J.appcllee, vs. Pilar Barrera de Reyes, rlefenda11t-appclla11t, G.R. No. L-J97, No1.1e111ber 23, 1948, PERFECTO, f. CRIMINAL LAW; TREASON; EVIDENCE; WITNESSES; INHERENTLY IMPROBABLE OR CONTRADICTORY TESTIMONY OF WITTHE LA WYERS JOURNAL NESSES.-Although there were two or more witnesses who testified to an overt act of treason, if their testimonies lte contradictory in themselves or inherently improbable, the Court cannot hold that the guilt of the accused has been established beyond reasonable doubt. Atty. Enrique Ramirez for the defendantappellant. The Solicitor Gf'//rral for the plaintiff-appellee. DECISION PERl' ECTO, /.: Pilar Barrera de Reyes appealed against the lower court's judgment finding her suilty of treason and sentencing her, in accordance with the provisions of Article 114 cf the- Revised Penal Code, lo rrcl11sio11 per. petua, with the accessories of the law and to pay a fi ne in the amount of P-10,000.00 and the costs. The prosecution accuses her of having caused, by pointing them to Japanese officers and soldiers, the arrest of three Filipino guerrilla suspects, Pclagio Cabutin, Ignacio Mejia and Alejandro Tan, who, after having been apprehended inside the air raid shelter where they V.•ere hiding inside the ruins of the Santa Rosa College, lntramuros, Manila, were tortured and then brought to Fort Santiago where they were killed, the treasonous denunciation having been committed on February 15, 1945. Two witnesses, Modesta B. Son and her daughter Lourdes B. Son, tesrified for the prosecution to show appellant's responsi. bility for the arrest, torture and killing of the three viccims of J apanese brutality. According to the two witnesses, on February 5, 1945, all the male residents in lntramuros, about 400 of them, were taken by the Japanese and herded in Fort Santiago, while all the females, about 300, and the children, were herded inside the ruins of Santa Rosa College. T he three victims, members of a guerrilla outfit in Laguna, who went to lntramuros to visit their relatives and observe the activities of the J apanese, were among rhe males who were rounded up, tied, tortured · and brought to Fort Santiago on February 5, 1945. On February 9, 1945 , they were able to secure permission from a Japanese lieutenant to go out for the purpose of visiting cwo girls, Rosing and Magdalena, Cabutin's nieces, who were among the women herded in the Santa Rosa College compound. (The statement in tQe government's brief that the three victims mamged to escape is not based on any testimony on record.) Once inside rhe ruins, Cabutin and companions hid from the J apanese, dug an air raid shelter, covered it with wood and earth, and on top built a shack for Rosing and Magdalena to 'Stay in. The accused, who was living in mother shack with Mar 31, 1949 her child and a maid and wherein her lms- where Rosing and Magdalena were staying, band, a Japanese officer, passed all night as it would be the logical spot, to anyfrom 6 p.m. to 6 a.m., used to make rounds one's mind, that the Japanese would have to spy on males hiding in the compound, search first, because the Japanese lieutenant pretending to barter foodstuffs. On the must have known that to visit the two girls, morning of i:ebruary 15, 1945, she disco- rhey must have had to go to their place. ;:;,~t;~e th:es;:ccte ~: ~~~ ~~:~a~~ct:hso,a~~ If it is true that the accused had been ~~;f~;~~:;~;1~~1~~~~::~~~:;:~·~::~t:;,~.~~: ~~;~~~:;~:~;,~~;::.:i,:,~:~::~:~~~,r,;~~~ apprehended the three victims a11d tortured ~~~\'!;o~eF~~:~~r~;e 90;0t[~eb~~:;~ill~\r~~ ~~;n:~ t~~= :~~u~~~e:ol~u~~1r~l{~:p::•~~e bor~~i~ and to denounce them to the Japanese offithem to Fort Santiago. The arrest of the ~~:· ai:~:~i~r:~:fte;od:~o~;s:hea~~o 1:a~r~~:~ three guerrillas rook place in the morning, uated at a few meters distance from the ~:~e~n t:~~ ~~~e~:t~s~ft~:; :~1~~hdr:~ ~:~ :~~ shack of the accused. Before the three ready been kilted. On the following day, ~t;~:l;sn~~~t ~~:: ~~~: te::~~e;ht: ~~~e,f~:: February 16, at 11 o'clock, Arcadia Son, view of the accused and they remained so ~~~~st~~~c:u:~~~~~r;h~' \-:::s h~ts;gtat~h~i;, while they were working in the excavation, the Japanese soldiers, tortured and brought :~ ~~~1~;r~o:~icl~~c:~~:~ ::;est~a;ecsnt:~:i: to Fort Santiago, because the accused hap- from the hole must have been piled on the pened to hear of his presence in the place on surface. When the three guerrillas undertook February 15 , and denounced him then to her the work of placing wooden planks and earth husband, the Japanese officer. Arcadia Son on top of the shelter and then t hey built neve~ returned since he was brought to Fort the shack for Rosing and Magdalena, rhq' Santiago. From February 5 to 20, there could have also been seen by the accused. were in Sant~ Rosa College compound ma~y • T here is no pretence that the accused sufwomen marned to Japanese, all of them spies fered blindness during the hours and da ys who used to go around the shacks to look needed the three guerrillas to complete the for men in hiding. !hose other women whole job. peeped into the shack of Arcadio Son three times looking for men. There is no way of determining with absolute certainty whether Modesta and Lourdes B. Son testified to the truth or not. While the record offers no clue that mother and daughter's testimonies should be imputed to bastard motives, there are flaws in their declarations that preclude us from accepting them at their face value. We notice several contradictions that have not been explained. But even if they can be explained, there arc improbabilities in the testimonies, from accepting which conscience recoils. That Cabutin, Mejia and Tan, after having been confined in Fort Santiago since February 5, were on February 9 given permission by a Japanese lieutenant to go out for the exclusive purpose of visiting Cabutin's nieces, Rosing and Magdalena, appears to be fantastic. That the three guerrillas were allowed to go out, that they went out without wy Japanese guard or escort, and that, upon their failure to return, the Japanese did not right away comb all places including the Santa Rosa College for their arrest, arc things incompatible with the ways of th<! Japanese. If the Japanese lieutenant could have believed that to visit his nieces was enough reason to allow Cabutin to go ou~ from Fort Santiago, such reason could not be applied in favor of his two companions who had nothing to do with the girls. If the three guerrillas wanted to hide, they could not have been so dumb to go to and stay :tt the very spot M:iy JI, 1949 Modesta's story of the Japanese officer who ever}' night slept with the accused, is surprising. The conduct of the Japanese appe:irs to be that of a civilian employee r:tther than that of a military officer or, at any rate, of a man enjoying the blessings of undisturbed peace. It is unbelievable that a Japanese officer should leave his garrison for whole nights, and much more at the rime when the American Army was :dready in Manila and was showering bombs and cannon shells in lntramuros. Modesta would make us believe that the accused made denunciations to the J apanese officer in a way that she could hear them, that the accused was almost ordering the J apanese officer to bring the viccims to Fort Santiago, and even bragged that they were already killed. A Filipina in her mind could not have done such things, considering the well-known fact of the overwhelming feeling in our population against the Japanese, and much more on February 15, 1945, when the victorious Americans had already surrounded lntramuros. It would have been suicidal for the accused to have done what Modesta attributes to her because it would have exposed her to reprisal or revenge. Modesta would make us believe also that the presence of her husband, Arcadia Son, in the compound was discovered by the accused since February 15 and denounced on the same day to the Japanese officer, but the arrest took place only at 11 o'clock the THE LA WYERS JOURNAL Philippine Dc~is'.ons next morning. No Japanese officer could have been so slow as that. On the other hand, Modesta's assertion that she was outside of her shack when she witnessed the arrest of the guerrilla trio on February 15, is belied by Asuncion Dueiias, a witness for the prosecution, who said that when the three victims were caught by 'the Japanese, Modesta was· during the whole time inside her shelter. When after liberation, Modesta and her dau,shter denounced to the authorities the J apanese arrests in the Santa Rosa College ruins, but mentioned the apprehension of the guerrilla trio, but not rhe arrest of Arcadio Son. They failed to do so twice, first when they made the denunciation to Froilan Bungue, United States Army soldier, and the second time when they were investigaccd on March 15, at about 10 a.m., by the American CIC at General Solano Street. Modesta's explanation was that at that time her mind was perturbed, and that of Lourdes was that she simply forgot about it. That a husband, a father, had in that way been forgotten by his wife and daughter who, nevertheless, were prompt in remembering the names of three acquaintances or friends, is a thing that cannot fail to cast doubt on the mother and daughter's credibility. As regards Lourdes, there is her positive testimony that on November 16, 1945, she was beaten by her husband because she said on one occasion that the accused was not the same woman who pointed the three men caught by the Japanese at the Santa Rosa College and killed in Fort Santiago, that her husband told her to point the accused as the one, and that if .she should tell again that it was not the accused, he would beat her again. This revelation cannot fail to affect her testimony against the accused. !he defense has shown that since February 11, 1945, the child of the accused had been ill and that she remained all the time attending to said child until it was killed by a shrapnel on February 18, and that it is not true that the accused had any Japanese sleeping with her or committed the acts attributed to her by the witness for rhe prosecution. A witness for the defense had shoWn that the witnesses for the prosecution could have confused the accused with other women, with similar features. When Modesta approached Froilan Bunguc to denounce the arrests, the accused was not present, and among those arrested by Btinguc as a result of the denunciation was one Asuncion Mendoza, while other- witnesses testified that among the women spies were two, called by rhe name of Fcly and Perla. The prosecution has the onus proba11di in showing the guilt of an accused. "In all criminal prosecutions, the accused shall be presumed to be innocent Until rhe contrary 253 Philippine Decision~ is proved." (Sec. I [17], Arr. Iii of the Consritution.) The eVidence of the prosecution in this case docs not show beyond all teasonable doubt that the accused has committed the overt act imputed to her. The presumption of innocence in favor of :ippcllant has not be overthrown. With chc reversal of the appealed judgment, appellant Pilar Barrera de Reyes is acquitted and, upon promulgation of this decision, she will be immediately released. Moran, C.]., Paras, Feria, Brngzo11 and Brfo11es, ])., concur. Reyes, J., takes no pan. TUASON, )., dissenting: Three-eye-witnesses, not two, testified for the prosecution in this case. Modesta B. Son testified that on February 5, 1945, the Japanese gathered all the menfolk in Tntramuros, bound their hands, and took them to Fort Santiago. She saw about 200 men thus arrested. Pelagio Cabutin, Ignacio Mejia and one Alejandro, whose surname she did not know, were among them. On February 9, they appeared at Sta. Rosa College; they said that they were able to get out because they talked to a Japanese lieutenant. From that time the three men stayed at Sta. Rosa College. They made a hole "deep enough," put planks of wood and galvanized iron sheets on top, and covered these with earth. On top of the covering they built a small shack for Rosing and Magdalena who were Pelagio Cabutin's nieces. The witness does not know whether Magdalena· and Rosing were still alive because she had never seen them after liberation. On February I 5, Cabutin, Mejia and Alejandro, by the indication of Pilar Barrera Reyes, were found and told to come out of the hole, and after they did, a Japanese pfficer and three J apanese soldiers slapped, kicked and bayonctted them, after which they were taken to Fort Santiago. Before tl1:lt date, the witnesses had known Pilar Barrera Reyes, when she was living at No. 73 Bearcrio street. Pilar used to call on witness, landlord. That began as early as February I 5, 1944. Pilar Barrera Reyes was then li,•ing at NO. 50 Legaspi street. She lived with a Japanese officer who used to come to her house day and night. Witness supposed he was an officer because he carried a sword and a pistol. At Sta. Rosa College, Pilar Barrera Reyes frequently went from shack to shack to barter food. But this was a mere pretext, her purpose being to find out if there were maks in the shacks. When she pointed to the Japanese the hideout of Cabutin, Mejia and Alejandro she, the accused, was standing at the door of her shack. Then the Japanese officer fetched three Japanese soldiers. That was the time when the four Japanese arrested Cabutin, Mejia and Alejandro. Modesta B. Son also testified that Pilar Barrera Reyes had witness' husband, Arcadio San, arrested by the J:ipancse. That was on 254 the 16th. Pilar informed the Japanese that Arcadio Son was inside the shack. Three Japanese soldiers came, pulled him out, tied and slapped him, and carried him away. This time Pilar Barrera Reyes was in front of the witness' sha.ck when the arrest was made. Arcadio Son, when he was spied by the accused, was inside an air-raid shelter covered with pillows and mats and wearing a woman's dress. The accused happened to sec Arcadio Son on February l 6 when she was bartering foodstuffs and peeped into the shack. Lourdes B. Son, Modesta's daughter, 17 years old, testified substantially as follows: On February 5, 1945, the Japanese seized and arrested about 400 men in Intramuros, maltreated theni :ind took them to Fort Santiago. All the women were sent to Sta. Rosa College which had already been destroyed by fire. Among the males taken to Fort Santiago were Pclagio Cabutin, Ignacio Mejia and one Alej:mdro. About February 9, 1945, these three men appeared at Sta. Rosa. She asked them how they were able to get out and they :insw.cred they begged a Japanese officer to let them sec and talk to their nieces Rosing and Magdalena. Then they hid themselves in an air-raid shelter. Thcr dug a hole, put wood shafts inside and covered the top with galvanized iron sheers and earth. On top of these, they built a shack for Rosing and Magdalena. On February 15, Pilar Barrera Reyes was bartering rice at every shack. She heard voices in Rosing's shack :md appeared surprised. She peeped in through a hole and saw the three men inside. After rhat she returned to her shack and onc-h:i.lf hour afterward her Japanese husband showed up. To the Japanese Pilar Barrera Reyes pointed the shack where she had heard men's voices. Thereupon the Japanese officer went out and brought back three soldiers. The Japanese removed the iron sheets from the shack and told Magdalena and Rosing to step out. Then they told the three men to come out. Once outside the hole, the three men were tied, slapped, beaten with rhe hurts of guns and fists, stabbed with bayonets and, when they fell, were put back on their feet. While this punishment was being inflicted, Pilar Barrera Reyes was near the Japanese officer. The three men were taken to Fort Santiago and never heard from again. On 1:cbruary 16, at 9 o'clock, t he witness left her family's shack and when she re· turned she saw her father being tortured by three Japanese soldiers and the Japanese husband of Pilar Barrera Reyes. Her father was bleeding; at that time Pibr Barrera Reyes was beside the Japanese officer. Pilar Barrera Reyes was laughing and saying, "You arc hiding yet, probably you are also a guerrilla." (Nagtatago ka pa, marahil ay guerrilla ka rin".) Asuncion Duellas testified chat on Fcbbruary 5, 1945, she was at the Cathedral with her husband, a cousin, and her three THE LA WYERS JOURNAL children. From the Cathedral, the women were sent to Sta. Rosa College while the males were taken to Fort Santiago by the Japanese. Among the women at Sta. Rosa College was Pilar Barrera Reyes whose shelter was about three brazas away from hers. fn moving to Sta. Rosa College witness first took her three children and told her husband to wait :it ,the Cathedral. Later she came back, put on him her own cloches, covered his head with a kerchief, and accompanied him to Sta. Rosa. On February 15 , she saw Pilar Barrera Reyes talking with two Japanese officers who came to her shack. Pilar pointed her shelter to the Jap· anese and said that a man was hiding there. Then the Japanese officer led her husband out, stripped him of his woman's apparel and the towel with which his head was wrapped, afre: which they struck him with fists and bayoneted him on the left shoulder. Witness heard Pilar say that it would be better. to take him to Fort Santiago because he was hard-headed; he did not want to join the males. This happened about 3 o'clock in the afternoon. At 11 o'clock a.m. of that day, she also saw Cabutin, Mejia and Alejandro being' maltreated by three Japrncsc. They were tied, slapped, boxed and bayoneted. She heard Pilar tell the J apanese that they had better take the men to Fort Santiago. Asuncion Dueiias also testified that once, on the 15th, Pilar Barrera Reyes saw her (witness') child crying; that when, in answer to the defendant's question why the baby was crying she said it was its habit to cry most of the time, Pilar remarked that witness should throw th:! child away. She also testified that on the 25th when they were liberated she and Pilar saw each other again at the Sm Lazaro Race Track. She ~aid that she knew Modesta for the first time when they met at Sta. Rosa Colle~e. The defense is a complete denial of any complicity, on the part of the accused, in the atrocities stated by government witncsscss. Other women cohabiting with Japanese, it was alleged or insinuated, were che spies responsible for those atrocities. The decision would tear down the testimony of the witnesses for the prosecution on assum.cd, not established or alleged, facts. On some points it theorizes from premises that are contrary to actual facts; on still others, the conjectures are not, in my judgment, sound even in the realms of speculatiou and psychology; for the rest, the discussion in the decision is immaterial in the light of defendant's defense or a<l~11i ssion. The Coul't disbelieves the evidence thJt Pclagio Cabutin, Ignacio. Mejia and Alejandro came out of Fort Santiago with the permission of a Japanese offi'ccr. Trulr, there is room for doubt as to the permission. \'Ve can not say for certain how these three men succeeded in getting out of thlt camp of Mar 31, 1949 horrors. If we indulge in speculation, the besc guess is that they escaped. It is a matter of general knowledge that scores of prisoners were able to do that in those hectic d:iys of Jap:inese sadism and brutalicy, perhaps due to the fact that there were too many prisoners there to attend to closely. There was more than a probability that when the men said they had obtained permission of a Japanese officer, they lied. Two of them were mere friends of the Sons, and one was the son of a distant cousin of Modesta. They were in an extremely perilous situation at the cime when the carnage was at its worst. Lying men even to immediate members of one's family w,1s demanded by ordinary prudence. iheir security from rearrest and almost certain death was undoubtedly enhanced by concealment of the truth that they had fled from Fort Santiago. There is nothing queer in the testimony that the three men came to Sta. Rosa after escaping from Fort Santiago. ihat, on the contrary, seemed to be the natural thing for them to do. Where else could they go? When they were marched off to Fore Santiago from the Cathedral, the women including Rosing and Magdalena, their relatives and apparently housemaces, were told to go to Sta. Rosa. T he)' did not know, when they decided to come to the latter place, that Pilar Barrera de Reyes, the spy, was there nor that she and her Japanese paramour still sustained sexual relation in those critical days. Pilar Barrera Reyes, according to her testimony, moved to Sta. Rosa after February 5. We do not share the doubt chat Cabutin, Mejia and Alejandro made the hideout when they were caught. The way, as related b)' the witnesses, the three men dug a hole and concealed themselves in that hole sounds plausible. The whole affair, with materials at hand, could have been finished iri a matter of hours; and if the men worked at night, as probably they did, that explains why they were not seen while working by Pilar Barrera Reyes or her Japanese friend. The decision assumed or presumed that Pilar and the Japanese officer were at Sta. Rosa all the rime. The evidence shows that the Japanese officer was posted with his company or men at the Sto. Domingo church ruins where he stayed and had to stay most of the time, while it appears that the dCfendant ac times went out of the Sta. Rosa premises. Moreover, the place was crowded with women and children. From the tone and tenor of the Court's findings and of its ratiocination, it would appear that it brands the accusation as a fabrication out of whole cloth: that the alleged presence and arrest of Cabutin, Mejia and Alejandro at Sta. Rosa were a pure concoction. This supposition is more than the defense dared suggest, and I believe that it is far-fetched. The time when the three May 31, 1949 witnesses implicated the defendant was early March, t 94 L Still stunned by a holocaust; jusc widowed or orphaned under tragic circumstances; homeless and living on charity, their primary concern was where and how to find food and shelter. They were not in a mood and did not have the motive and the incentive to place upon themselves a new burden and worry by inventing a fantastic story against a woman who, according to that wom:in, had not done them any wrong. She even dl'nied she knew the witnesses. These witnesses did not have to use imaginary victims if they merely wanted to send the defendant to prison or to the gallows. It has been seen that Modesta B. Son and Asuncion Dueilas lost their own husbands under cir"cumstances, the)' said, identical with the arrcsr, torture and liquidation of Cabutin, Mejia and Alejandro. The torture and arrest of those two men certainly furnished their folk the wherewithal to prosecute the ·defendant if the witnesses were just after defendant's sc:ilp regardless of defendant's innocence of any connection with the discovery of. their , husbands' hiding. Yer Arcadio Son's arrest and torture were not made the subject of this information. This, we think, goes to refute the theory that the three women's statements to the authorities concerning the arrests of Cahutin, Mejia and Alejandro were a deliberate f:ilsehood conceived in their ima~ination for no other reason than to send an innocent woman to her doom. The truth of the matter is, as has been said, the accused herself has not advancedat least not openly-the suggestion that the arrest of Cabutin, Mejia and Alejandro at Sta. Rosa College, was a fantasy. On the contrary, her evidence admits that these men were arrested in thac college through the betrayal of a woman. Her line of defense is, not that the arrests and tortures were a fake, but that she was noc the woman who revealed the three unfortunate men's hideout. It ought to be recorded that Lourdes Son was deceived into signing, or pcrsu:ided to sign, a statement prepared and put in evidence by defendant's counsel, in which she was made to say, or made her appear as saying, that she had been taken to the Correctional Institution for Women in Mandalu)'Ong on the 16th of November, 1945, together with a sister of the accused, for the purpose of identifying the latter; that having seen t he accused, she (Lourdes) realized that Pilar Barrera Reyes "was not the same woman whom she had seen in Tntramuros J1oh11ing out lo Japanese soltliers, Pefagio Cabutin, Ignacio Mejia aml Alejandro, wbo were laken by !he Japanese officers to some place"; that she (Lourdes) actually saw tbe woman who pointrJ the abo11e-11a111cd Fifipinos and heard her say !hat those lhree Filipinos are inside a cerlaitt air-raid shelter ;,, ln/ramuros." To make that statement Lourdes was taken to Welfareville by one of THE LA WYERS JOURNAL Philippine Decisions the defendant's law}'ers, her two sisters and a Corporal De Vera; husband of the defendant's elder sister Rosa. And the accused and her witnesses, at the trial, amplified this thesis. The gist of their testimony is that at Sta. Rosa, two women (neither of them the accused) who cohabited with Japanese officers, disclosed the presence of the three men to the Japanese; that those two women accompanied Japanese officers in their search for men in the Sta. Rosa compound; that the said women resembled the accused, their names sounded like that of the accused, and they couhl easily be mistaken for the accused; that the accused bore the pct-name of Pil while one of the two women above mentioned was known by the name of Fely and the other's pct-name was Perla. That is the simple issue. This is a simple case of mistaken identity! The government witnesses, according to the accused and her witnesses, got ~ixed up; Fcly and/ or Perla, not Pilar, were the traitors. The question rims boils down to who cohabited with a Japanese officer, accompanied him in his rounds looking for males, and, discovering the hideout of Cabutin, Mejia :ind. Alejandro, led her Japanese paramour Now, can we believe the yarn that the defendant was a mere victim of an unfortunate co~fusion? The evidence that there were three women at Sta. Rosa College who resembled one another in n'ames, in physiognomy and in general appearance, except the hair, which the defense stressed, has all the traces of a fiction. And granting the truth of such a rare coincidence, there was little or no possibility of the three witnesses for the prosecution committing the same mistake under conditions far from being conducive to errors of identity. The incident occurred in broad daylight in the immediate presence of the witnesses. The arrest of the helpless men and the stabbing and other forms of torture perpetrated on chem must have consumed no lictle time; :md such atrocities were committed not once but. three times. Only one woman spy w:is an active participant in the atrocious acts. The witnesses had known the defendant by sight and by name for a long time before they took refuge at Sta: Rosa, and they were with her in that compound for two weeks after the arrest. Being the concubine of a Japanese officer and npt by :my means shy or of retiring disposition, as can be gathered from the record, she must have been-conspicuous and the objecc of suspicion • if not fear. At the Manila Jockey Club the three witnesses and the defendant were togecher ag:iin after liberation until the accused was arrested in corincction with the "' Philippine Decisions present charge. In the light of these facts, illusions, associations, suggestions, judgment, trick of the memory could not have penetrated into and influenced the witnesses' observations and caused them to mist:1ke another woman for the defendant. The record will have to be searched in vain for any ill will that could have induced the three women witnesses to tl'Ump up a charge for a capital offense against the defendant. At the most, they were moved by a righteous indignation aroused by the treachery of a Filipino who shamelessly aided and comforted with the enemy both in flesh and the wanton bmchery of her people during chat reign of terror and t ribulations that tried men's souls. Asuncion Duefias' statement that if the accused had not been arrested she herself might have killed her because of so many people she had betrayed, was a genuine and natural reaction of an aggrieved widow against one who had brought her desolation, misery and suffering. Relating as it does to the very atrocities under investigation, her wrath gives vivid substance and reality to her testimony rather than weighs on her veracity. The decisi·on cites Exhibit J-Lourdes Son's stoitement prepared by one of the defendant's attorneys and signed by Lourdes at the Correctional Institution for Women -to impeach Lourdes' testimony. 1 may mention that from a leading question asked Modesta Son by defense counsel it also seems that the defendant's auorneys were able to exact from her, in their office, a promise that she would stand by them. Needless to say, this procedure was highly reprehensible and unethical. In one aspect Exhibit 3 and Modesta's promise positively favor the prosecution. The defense's effort to win Modesta and Lourdes Son to its side after they had given evidence against rhe defendant is i11dication of its realization that there was truth and gravity in what they knew. And the ease with which the effort succeeded is evidence that the witnesses were not unfriendly, and gives the lie to the contention that they were bent on having the accused punish;d to the point . of being capable of committing intentional injury against her. Referring, on cross-examination, to Exhibit 3, Lourdes declared that she did not know what it said and insinuated that she was intimidated. While we may discount her testimony t hat she was threatened by Corporal Vera, we should not overlook the great probabilit}' that undue infl\\ence was brought to bear upon her and her mother to retrace their statements made to the CIC and the prosecutors. They said that when they were summoned by De Vera and defendant's two sisters from their temporary quarters at the Gregorio de\ Pilar Elementary School to come to the lawyer's office, they thought the government lawyer's office was meant. De Vera's interventio11 could conceivably have disarmed them of 2'6 any suspicion of anomaly. De Vera was one of the two non-commission officers who had questioned them at the Manila Jockey Club in March and who, it would seem, arrested the accused. They might not have known that this corporal had married the defendant's cider sister in June and had become defendant's protector. Modesta San and Lourdes San arc unlettered. On iu intrinsic merit, Exhibit 3 is of little or no value. I have to admit that Modesta's and Lourdes's testimony is unsatisfactory on what the defendant's attorneys judges who saw and heard the witnesses testify. Monlcmayor and Pablo, JJ., concur in the foregoing dissenting opinion. VI Jo11q11in Zamom, fwlilir111cr, 11I . Rr1f11cf Di11glasa11, /iufge, Co11rl of First fllsfa11cr. of Ma11ifa, a11d lsabefo Hilario, respoll(ffllfs, G. R. No. L-750, August 16, 1946, PABLO, /. and De Vera told them and on other things I DESAHUCIO; EJ ECUCION; MORA EN EL PAGO 0 DEPOSITO DE LOS ALQUILERES; CASO DE AUTOS.El demandado dejr. de depositar los alquilercs correspondientes a los meses de abril y mayo. El demandante tenia derecho a pedir la ejccuci6n de la sentencia, y erd debcr drl Juzgado ordenar la ej.ccuci6n de la scntencia apclada. that transpired between them. For reasons that can only be left to conjectures counsel did not press the .point, which under normal circumstances would be an important bit of proof for the defense. But whatever the case mar be, Exhibit J and Modesta's promise not to forsake the accused disproves the insinuation of unreasoned hostility. In the face of the proven facts, they do not impair the witnesses' credibility on the main l issue. Their statements to the military authorities in Marcil were made spontaneousID.: ID.: ID.; SUSPENSION DE EJECUCION BAJO LA LEY No. 689, CON SUJECION AL PAGO 0 DEPOSITO DE LOS ALQUILERES VENCIDOS.-No conricne la Ley No. 689 disposici6n alguna que justificase la falta de pago o deposito de los alquilcres vencidos. Dicha Icy cuando cxistc y:t "orden o sentencia ya firmc y ejecutoria," autoriza al J uzgado a "suspender la ejccuci6n de semejante orden o scntcncia, por cl periodo que estime convenientc, que no sed mayor de tres meses" (articulo 4) con sujeci6n a las condicioncs prcscritas en los articulos 5 y 6. Una de las condiciones de la suspenci6n cs "que la persona contra la cual se dicto la scntencia depositc todo el importe de los alquileres por todo el tiempo que dura la suspension o las porciones de dicho importe que cl J uzgado ordcnc de ticmpo en ticmpo a razon de! cual sc dict6 la sentencia deposite todo alquiler quc p:igo por cl mes inmediatamentc anterior a la terminaci6n de! arrendamiento." Esta Icy no protegc al que incurre en mora en cl pago o deposito de los alqui!cres. ly and. as has been heretofore said, the witnesses had received no inducement and had no reason to prevaricate. If they agreed with the defendant's lawyers to testify according ro the tenor of Exhibit 3, their commitment could not be the truth, nor put in doubt the truth of their previous statements to the representatives of the prosccution. The very character of the supposed mistake supposedly committed by the witness is, I think, its best refutation. As I trust I have shown, mistaken identity was highly remote. The implication of the accused by Modesta, Lourdes and Asuncion to the authorit;cs was either an outright, deliberate falsehood or an absolute truth. There is no room for a middle ground. That it is the truth is inescapable. If Cabutin, Mejia and Alejandro were pointed out to the Japs by a woman, as the defense at least impliedly admits, and if, as the witnesses soiid the accused was that woman and so declared to the CIC, no amount of subsequent contrary statements can create any doubt as to the accuracy of their first information, unless it could be shown that they had any base motive to wish the defenda nt harm and to shield the real culprit. There is not the least indication or insinuation of either. To think that t he witnesses left unmolested the real informer who was instrumental in the killing of members of their families and friends and trained their bitterness and resentment against a guiltless woman for no reason whatever is highly irrational. Stripped of all cluttering details, the issue is reduced to the credibility of the opposing witnesses. There are no sufficient grounds for this Court to set aside the unanimous findings of fact of the three experienced THE LA WYERS JOURNAL JUJCIO ORIGINAL en cl Tribunal Su'rcmo. Mandamus. Los hc~hos aparccctt relacionados en la de. cisi6n dcl tribunal. Sres. Par/ilia, Carlos & Fnl//111rlo en repretentaci6n de\ rccurrentc. Sr. D. Eusebio Morales en rcprcsentaci6n :lei recurrido Hilario. Nadic compareci6 en repre~cntaciOn de\ Jucz recurrido. PA BLO, M.: . En la causa civil No. 1307, titulada "Joaquin Zamora, como admin.istrador, etc. contr.i Isabelo Hilario, dcmanPado," cl Juzgado 1 \ilunicip:il de M:inila dicco en Enero 14, May Ji, 1949 1946, scntcnci:1 condcnnando al dcmandado a dcsalojar his fincas Nos. 2032, 2032-A y 2034, de la C:1lle Azcarraga, Manib., ya pagar la renra de 'P-170 al mes. El demandado apcl6, y cl expediente h:i sido registrado en el Juzgado de Primera Instancia de Manila como c:iusa civi! No. 72 I 80. En M:iyo 29, 1946, cl rccurrenre (dem:indante en la caus:i de desahucio) present6 una moci6n en dicho Juzgado de Primera Tnscancia pidiendo la ejecuci6n .de la sentcncia dictad_a por el Juzgado Municipal de Manila, alegando como razon la folra de pago o dep6sito por cl demand:ido de los alquileres correspondicntes a los meses de Abril y Mayo de 1946. El demand:ido ha sido notificado de esta moci6n, )'en Mayo JI, csto cs, al segundo dia despucs de prescntada la mociOn, deposit6 los cirados alquileres en la Escribania dcl J uzgado. En Junio 11, despues de considcrar losescriros presencados por ambas partes, el H onor.1blc Juez rccurrido dicro una orden denegando h moci6n de ejecuci6n. En Jun.io 24 recurrentc present6 moci6n de reconsider:ici6n razonada, y al siguiente dia el demandado pre~enr6 su escrito oponicndose a la moc6n de rcconsideraci6n, que fue denegada por cl Juzgado de Judio 12. El rccurrente, por medio de una solicitud original de mandamus, y alegando que las ordcnes dcl j uzgado de Junio 11 y Julio 12 de csta ailo han sido dictadas en contravenci6n de la le}' quc no ticne otro remcdio facil y cxpcdito para obtcner la cjccuci6n a que tiene derecho, pide ciue este Tribunal ordene :ii recurrido, el Honorable Rafael Dinglasan, como Juez dcl Juzgado de Primera lnsuncia de M:inila, que expida una ordcn de ejecuci6n en la causa civil No. 72 180. El articulo de la regla 72 dispone: "si se dictare senrencia contra el demandado, se expedid. inmcdiatamente la ejecuci6n, a menos que sc perfeccionare una apelaci6n y el demandado prestare fianza bast:1.nte para suspender la ejecuci6n de dicha scntencia, aprobada por el juez de paz o municipal y otorgada en favor de\ dcmandante para el registro de la causa en cl Juzgado de Primera lnstancia y para cl pago de los alquileres, dailos y costas hasta que se dicte sentencia definiciva, y a mcnos quc, durante la pendencia de la apelaci6n, cl demandado pague periodicamente :ii demandante o al Juzgado de Primera lnstancia la cantidad de los alquileres vcncidos, segun el contrato, si lo hubiere, tal y como hubiere estimado en su sentcncia el juzgado de paz o municipal, * * *. Si cl dcmandado no hicicre pcriodicamente los p:igos antes mcncionados durante la pendencia de la apclaci6n, el Juzgado de Primera fnst:incia, prcvia moci6n del demandante, que se notificara :ii demandado y previa prueba de falta de pago, ordenad. la ejecuci6n de la sentcncia apclada;" * * *. El dcmandado dejo de dcpositar los :iiMay 31, 1949 < 1uileres correspondicnres a los meses de Abril y Mayo. El dem:ind:imc tcnia dcrecho a pedir la ejecuci6n de la scntencia, y era debcr dcl Juzgado ordenar la ejecuci6n de la sentencia apcbda. El Reglamcnto en inglcs dice: "shall order the execution of the judgment appealed from." No conticne la Ley No. 689, disposici6n :ilguna que justific:isc la falra de pago o deposito de los alquilercs vencidos. Dicha Icy, cuando existe ya "ordcn o sentencia ya firme r ejecutoria," autoriz:i :ti Juzgado a "suspender b ejecuci6n de semejante orden o sentcncia, por cl periodo que estime convenience, que no sed. mayor de tres meses," (articulo 4) con sujeci6n a las condiciones prescritas en las arciculos 5 y 6. Una de las condicioncs de l:i suspensi6n es "quc la persona contra la cual sc dicc6 la scntcncb deposite todo cl importc de los alquileres por todo cl tiempo quc dure la suspcnsi6n o las porciones de dicho importe quc cl Juzgado ordene de tiempo en tiempo a razon de\ alquilcr que pag6 por el mes inmediatamente anterior a la terminaci6n de\ arrendamiento." Esta Icy no protege al que incurre en mora en cl pago o deposito de los alquileres. Se dicta sentencia ordenando al Honorable Juez rccurrido que expida la orden de cjecucion pcdida. Sin pronunciamiento sobre Mor1m, Prrs., Paras, Frria, Prr/ecto, Hilado, Be11g=o11, Briones, y T111uo11, MM., estan conformcs. Sc concede la rolicilud. Vil Patricio J-1. Gubagaras, plai11liff-appelfrr, 11s. West Coast Life lm11ra11cr Compa11)•, Jefrnda11t..uppella11t, CA-G.R. No. 16n, January, 6, 1949, DE LA ROSA, /. Philippine Decisions requested for necessary forms to sup· port a claim for the amount of the insurance. Appellant refused to entertain the claim on the ground that appcllee having failed to pay the premium due after February 1, 1942, payment of the amount of the insurance was forfeited. Held: The dcfcndantappellant was ordered to pay the amount of the insurance, less the value of the premiums due and unpaid until the death of the wife, with legal interest from the filing of the complaint and costs. 2. ID.; ID.; IMPOSSIBILITY TO PAY PREMIUMS IN THE HOME OFFICE OF INSURER.-Wherc rhc policy provides "all premiums are due :ind payable in advance to the home office of the company in the City of San Francisco, California, U.S.A. . ," but by reason of the war the insured could not pay the premium in the home office, the insured was excused for nonpayment thereof. J. ID.; FAILURE OF INSURER T O ASSIGN AGENT AT THE RESIDENCE OF THE INSURED.Where the policy provides that the premiums ··may be paid to an authoriz. ed agent of the company producing the company's official premium receipt signed by the President, a Vice President or Secretary of the Company, :ind countersigned by the person receiving the premium," the company is obliged to assign an agent to present receipts of premiums due or to be due, signed by its president, vice president or secretary, and countersigned by the agent, to the insured, in their residents, to collect them. INSURANCE; WAR; EFFECT OF NON-PAYMENT OF INSURANCE ; · PREMIUM BY REASON OF WAR. -On August I, 1940, plaintiff-appcllce and his wife were insured by defendant-appellant under a joint endowment policy for twenty years, under which the 5Urviving spouse became the beneficiary. The last premium paid by the insured covered the semester period of August I, 1941 to ID.; WAR; JAPANESE MILITARY NOTES: CONSIGNATION; DEPOSIT OF JAPANESE MILITARY NOTES TO PAY PREMIUMS DUE. - If the insured deposited with t he Clerk of Court the premiums due, in the Japanese Military Notes, the insurer will not accept the money because it has no value. February I, 1942. The Pacific War 5. which started on December 8, 1941, and the occupation of the City of Manila on January 2, 1942, caused the disruption of all means of communication between the capital and other points outside the City of Manila. As a result of this, appellec could not remit to the appellant the premiums due. The wife died on May JO, 1945, in the municipality of Dueiias, province of Iloilo, before the armistice but after the liberation of Iloilo. On June 18 of the same year appellee notified the appellant of her demise and THE LA WYERS JOURNAL ID.; CONSTRUCTION AND INTERPRETATION; FAILURE TO DEMAND PAYMENT OR TO PAY PREMIUMS DUE; INSURANCE CONTRACT INTERPRETED IN FAVOR OF INSURED. - Where there arc no jusrifi3bJe reasons to lay the blame on either of the contracting parties for failure either to demand payment or to pay premium due on the policy in question, Article 1105 of the Ci\'il Code should be applied, as it tends to supply the deficiencies in the contract, especially when it is al257 Philippine Decisions ready the admitted rule that confiscations should be avoided through :m interpretation favorable to the insured. 6. ID.; ID.; RIGHTS OF PARTIES IN CASE OF WAR NOT STIPULATED IN INSURANCE CONTRACT.-In life insurance contr:icts the silence with respect to the rights of the parties thereof in case of war is an omission which should not benefit insur:mce companies which arc the ones who drafted the contract, and they should not be permitted co invoke in their favor their own omissions. T ORRES, /., concurring: 7. ID.; WAR; IMPOSSIBILITY TO PAY PREMIUMS DUE IS AN EXCUSE.-The failure of i~ured to make payment of premiums due on policy was caused by the stoppage of :all means of communication between his place of residence in the province of Iloilo and the City of Manila, where the Philippine offices or agency of the defendant company were established before the war, and it being a matte1· of common knowledge that the offices of all firms and companies of American nationality have been d osed :ind liquidated by the Japanese Military Administration soon after the beginning of the occupation of these lsl:mds, it would be utterly unreasonable to contend that bec:ausc of the failure of the insured to pay the premiums due from February I, 1942, "the policy hapsed without value." lmpouibili11111 n11lfa obligafio est (there is no obligation to do impossible things). (Impossibility is an excuse in the law). These are maxims which arc in all fours with the case at bar. 8. ID.; STATUTES; LAW GOVERNING INSURANCE SUPERIOR TO TERMS OF POLICY .-An insurance company organized outside the territory of the Philippines and permitted to transact business in this territory must abide by t he provisions of the laws in force in his jurisdiction governing life insurance business. T he court, therefore, cannot adhere to the contention of defendant who, in his first assignment of error, contends that "the policy is the law between the parries." The law governing the subject matter of insurance is superior to the terms of the policy. 9. ID.; OBLIGATIONS AND CONTRACTS; VALIDITY AND FULFILLMENT OF CONTRACT OF INSURANCE CANNOT BE LEFT TO THE WILL OF ONE OF THE CONTRACTING PARTIES.- Jn the absence of specific provisions in the Insurance Law, No. 2427 as amended, a contract of life insurance is governed by the rules of civil law regarding contracts. Thus, if according '" to Article 1256 of our Civil Code, "the validity and fulfillment of contracts cannot be left to the will of one of the contracting parties," the attitude of defendant in declaring that the policy had lapsed and become worthless on the ground of alleged non-payment of premiums, is utterly unjustified, in that it is contrary to the provisions just quoted which is based on principles of justice, because it not only proclaims the binding nature of the contract as stared in Article 12 5 8 of said Code, but it likewise establishes the principle of equality which is so essential for the contracting parties; it forbids that one of the part!es be bound by t he terms of t he agreement while the other is 10 . ID.; WAR; UFE INSURANCE POLICY NOT LAPSE FOR NONPAYMENT OF PR.EMIUMS DUE TO WAR.-The life insurance policy did not lapse for non-payment of premiums due to impossibility of payment as a result of war. ' 11. ID.; PROMPT PAYMENT OF PREMIUM ESSENCE OF CONTRACT OF INSURANCE, EXCEPTION.Prompt payment of premiums is material and of the essence of the contract of insurance. This musr, however, be qualified by taking into consideration the time and circumst:inces surrounding the act of ·payment, Not in v:iin the maxim says: disli11g11e Jrmpore el co11cordabis j11ra (Distinguish times, and you will make laws agree), 12. ID.;JUDGMENT;DOCTRINELAID DOWN IN NEW YORK LIFE INSURANCE COMPANY v. STATHAM, 93 U.S. 24, 23 L. ED. 789 NOT CONTROLLING.-Considcring that the ruling laid down in the Statham case (New York Life Insurance Company v. Statham, 93 U.S. 24, 23 L. Ed. 789) has been m:idc by the United States Supreme Court about 7 5 years ago, during the horse and buggy period of the life of the American nation, it cannot be regarded as an overall principle that shall govern the relations between the insurer and the insured in the present age. Granting that, at t he time of the promulgation of said decision on October 23, 1876, such ruling was good law, it cannot be accepted as such in the present circumstances of human advancement and progress. Law and jurisprudence, its companies and exponent, are not static like the still waters of a pond; they go hand in hand with the progress and advancement of time; they look after and provide for the needs and welfare of the community. Allys. Padilla, Carlos f!J frrnando, for defendant-appellant. Atty. R. A. Espino, for plaintiff-appellee. THE LAWYERS JOURNAL DEC ISIO N DE LA ROSA, M.: Patricio H. Gubagaras reclama cl pago de la suma de 'f>2,000.00, importe de un:i p6liza expedida por la West Coast Life Jusurance Company, de la quc Cl cs asegurado y beneficiario, mas la cantidad adicional de 1.>600.00, en concepto de dailos. ~~ efecrividad cl l.o de agosto de 1940, Patnc10 H . Gubagaras y su csposa Maria Labaco, hoy finada, obtuvieron de la West Coast Life Insurance Company la p61iza docal conjunta Exh. A, de veinte ailos o hasta la muerte de cualquiera de cllos dos, q.ue eran mutuos beneficiarios, por la canudad de P-2,000.00, con participaci6n en las ganancias. La Ultima prima pagada por los ascgurados comprendia el periodo semestral de! l.o de agosto de 1941 :ii I.o de febrero de 1942. La guerra de\ Pacifico. estall6 el 8 de diciembre de 1941, y Mamla, en donde la compailia tenia su agencia, foe ocupada por las fuerzas invasoras japonesas el '2 de enero de 1942. Con motivo de la paralizaci6n de todas las comunicaciones, terrestres, maritimas y aereas, la prima que vencia el l .o de febrero de 1942 y las siguicntes, durantc la guerra, no se pagaron. Labaco falleci6 el 3 0 de mayo de 1945, en el municipio de D uenas, de la provincia de Iloilo, :intes de! armisticio, pero dcspues de la liberaci6n de Jloilo por las fuerzas amcricanas, oficialmcnte declarada en 22 de marzo de 1945. El 18 de junio de 1945, Gubagaras dirigi6 a la compailia la carta, copia fotosd.tica de la cual cs el Exh. 1, avisfodola de la muene de su esposa y pidiendo al mismo riempo formularios para probar su mucrte y presentar la reclamaci6n correspondienre. La compailia le contest6 que, por no habersc pagado la pr":na debida el l.o de febrero de 1942, .la p6hza Exh. A caduc6, sin ningun valor (Exh, 2). Despues que se cruzar:in otras correspondcncias entre las partcs, Gubag:a.ras prcsent6 su demanda de autos el 24 de junio de 1946. La compaiiia admite sustancialmente los hechos que sc acaban de relatar, y contestando a la demanda, alega que la p61iza en cuesti6n provee que "All pr~mi\lms arc due md payable in aduncc at the Home Office of the Compmy in the City of San Francisco, California, U. S. A., but may be paid 10 an authorized agcm of the Company pro· d\lcing the Company's Officio! premium receipt signed by the Prcsidenc, a Vke President or Sfcrctny of 1hc Company and countcr1igncd by the persou receiving the premium. No person hu any authority to collect a prtrni\lm unlcu he then holds uid oft'iciol rcceip1. • • • • " Y' entre orras defcnsas especiales, interpone: th::~· States thoc 1hc policy· in question provides "PAYMENT OF PREMIUM' • • • • • This policy shall hpsc if any premium is .not paid u herein provided and no right here· May 31, 1949 under shall uist except u hcrdn exprcn[y provided. 2. Statoi that by rnson of the non-payment of the premium due on l Februuy 1942, and/or thcrufter, the policy in question has hpsed, and that accordingly phintiff•s complaint uatts no C•usc of action. By way of SECOND SPECIAL DEFENSE 1. StatH 1hu insured are guilty of hchcs. in that they f•iled co apply for reinst•tement of the policy under the clause thereof which read!:REINSTATEMENT' 'At any time within five yun after default, updn written applkuion by the insu red and upon preKntation of evidence of insurabillty u tishc1ory 10 1he Company, 1his policy, if not surrendered to the Company, may be reinstated together with any indebtedness in accordrnce with the loan pro· visions of the policy, upon payment of the loan interest, and of arrurs of premium wiih interest at the rate of six per cent per annum thereon from their due dates. • • • • " (Expedience de Apelad6n, pp. 10 y 11) Aportadas por ambas parres sus pruebas, el Juzgado o quo, aplic:mdo al caso el Arr. 1106 del COdigo Civil, que reza: " Fueri de Jos easos uprenmfnte mencionados en la.lcy,yde losenqueasilodeclare la obligaciOn, nadie rnpondcd de aquellos sucesos que no hubieran po<lido pre,·eue, o quc, prninos, fueran incvinblu ." dict6 esu sentencia: "POR TANTO, d Ju1gado dicta dccisi6n en cue u unto, condenando a la demandada a pagar d denundante li canlid>d de DOS MlL PESOS ('P2 ,000.00), meno• el valor de la1 primas, no p•g>dU, drvcng1du huu la muene de la esposa del demandantc, queocurriO el JO de mayo de 194l', ton intcreses legales desde b presentaciOn de la demand.i, y al p1go, ade.;,as, de la1 cosos del juicio.'" Atribuyendole cuatro errores :i. este fallo, la Compania recurre en alzada :i. este Tri· bunal de Apelaciones. PRIMER ERROR " THE LOWER COURT ERRED IN NOT HOLDING THAT THE POLICY HAD LAPSED FOR NON-PAYMENT OF PREMIUMS DUE." Como precedente, se aduce en apoyo de este primer seilalamiento de error h decisi6n d.ictada el 23 de octubre de 1876 por el Tribunal Supremo de los Estados Unidos en New York Life Insurance Company vs. William C. Statham et al (23 Law Ed. 798), en la que se enunci6_ csta doctrina: "We 1rc of opinion therefore, first, that as the compmy elected to insist upon the condition in these easel, the policies in question must be reg.rded as extinguished by non-payment of the premium, though caused by the existence of the wu, and that an action will not lie for the 1mount insured tl1crcon. Secondly,thacsuchfailure beingnuscdbyapublic w.r without def.ult of 1he assured, they are entitled r x afquo rt bono to recover the equitable v1lue of the policies with interest from the dose of the war:• El Tribunal Supremo, en su primer pronunciamiento, se atuvo a la letra del contrato de seguro, siguiendo esta proposici6n: May 31, 1949 "(!) The right of the parties depend upon the contract, which they themselvCJ made. The court will not interpolate new conditions but will hold 1he pntie1 to their own agrc<ment.'• Basandosc en las condiciones dcl contrato, )itcralmente interprctadas, el Tribunal lo declar6 extinguido, por falta de pago de las primas convcnidas, sostcniendo, no obstante, que el asegurado tenia dcrccho a rccobrar el valor cquitativo de sU p6liza, con intereses desde la terminaci6n de la guerra. Si la p61iza caduc6, por no haberse pagado sus primas, el derccho equitativo reconocido en el ascgurado se dcriv6 de un contrato cxtinguido. Esta doctrina, que intcrpreta a la lctra las clausulas de! contrato y de algun modo h informa el aforismo Jura lex u rl lex, es una barrer:i. que dificulta e impide una dara y explicita redacci6n de los contratos de scguro de vida. Guerra ha habido siempre desde los albores de la humanidad, y ha ido desenvolviendose de la lucha entre tribus a la guerra mundial. Su frecuencia es una realidad, y h s perturbaciones "que pr'oduce sc dejan sentir profundamenre. A raiz de la gucrra civil americana, en los Tribunales de los Estados Unidos se ha debarido un nUmero considerable de asuntos de p6lizas de scguro de vida, cuy:i.s primas no pudieron pagarsc con motivo de l:i. guerra. Con todo, ningun:i. modificaci6n, que difin:i. los den'chos y obligaciones de las partes interesadas, en casos de gucrra, .se ha conseguido incor· porar en los contratos de seguro de vida, porque la dccisi6n en el asunto de Statham, al interpretar litcralmente sus clausulas, h:i. hecho de la guerra un succso confiscatorio de las primas pagadas por los asegurados, con la anulaciOn de sus derechos, a favor de las companias aseguradoras. La p61iza de seguro Exh. A, origen de este asunto, contiene esta clausula: ...... This policy sh•ll hpse if any premium is not paid as herein provided, and no right hereunder shall exist except as herein expressly providtd." Esta clausula es tan lata y vaga que por ella la compailia trat:i. de acaparar para si todos los derechos, y no conceder nada Philippine Decisions cxactamente las mismas clausulas de la p6liza Exh. A de autos, librada 89 anos mas rarde, o el l.o de agosto de J 940. Estc estancamiento, de casi un siglo ahora, en un ambicnre de contrataci6n que dia a dia ticnde a la mayor mutualid:i.d de los bcneficios, es el resultado de la doctrina en el asunto de Stath:i.m, que prueba la sabiduria y prccisi6n que extrana la maxima legal de inrerpretaci6n: la letra mata, el espiritu vivifica. SEGUNDO ERROR "THE LOWER COURT ERRED IN HOLDING THAT THE BENEFICIARY CAN RECOVER ON A VALUELESS AND LAPSED POLICY." En el parrafo 13 de h contestaci6n se acota la clausula de pago de las primas convcnida en la pOliza Exh. A, que establece dos maneras: "'(a) All premiums arc due and payable in advance 10 the home office of the company in 1he City of San Francisco, California, U.S.A. . " Como en el caso presente es absurdo suponer que los asegurados, Gubagaras y Labaco, se compromctieran a pagar las primas en la oficina de la compafiia en San Francisco, California, aparte de que no era posible cruz:i.r el Pacifico durante la guerra por la paralizaci6n completa de las comunicaciones, habia que descartar esta primera manera por imposible. Y, "'(b) but m•y be paid 10 •n authorized agent of the company producing the company's official P"mium receipt sii;ned by the Pre•ident, a Vice President or Secretary of the Company, and couotersigned by the person receiving the premium." Por esra segunda manera, la compania se oblig6 :i. nombrar un agente que prcscnte los recibos de las primas vencidas o por veneer, firmados por su presidentc, vice prcsidente o secretario, y coritrascn.ado por cl :i.gente, a los ascgurados, en la residencia de estos, para su cobro . Que pasos se han dado por las partes, de · acuerdo con esra segunda manera, para cfectuar el cobro y pago de la prima que vencia en l.o de febrero de 1942? Patricio H. Gubagaras declar6: a sus asegurados. Fundandose en ella, se Q. sosticne en el alegato de la apclante: Before February I, 1942, did rou make •ny effort to make payment to the ddtndant Comp1ny? • '"THE STATHEM RULE R. Si, sei'ior. The leading and cont rolling case on the legal point under consideration is New York Life ln111ranct Co. vs. Statham {!JJ U.S., 24 ; 2l L. ed. Q. What did you do1 R. Me vine al post office con d proposito de pa789). The question involved in the Stath•m case Q. i1 idenlical with the question invol ved in the present case. In both cues the policy containe<l the R. following stipulations: (a) that the premiums must Q. be paid in advance; and (b) that non-payment of any of such premiums will cause the policy to R. lapK. In both cues the insured did not pay the Q. stipulated premium• and cbimcd as excuse for such R. non-payment the impos•ibility ol p1ymcnc as a reg.r, pero b oficina de correo ya estaba ecru'" Where w .. the post office here in the Cily of lloilo then situated at the time? En cl ed ificio de la Aduana. When did you go to the Custom House Building? Alla a mediados de! mn de eneto. In what year? 1942. sult of 1he war.'• (pp. 14 y II) Q. Where did you go when you had to return? Segun esro, la p6liza cxpedida en 1851, que motiv6 la causa de Statham, conrenia THE LA WYERS JOURNAL R. Volvi a Duei\u. Q. Did you m•ke any furthu effort turning 1oyour hou1e? 259 Philippine Decisions R. Si, 1ciior. Q. What did you do1 R. Me fui ab oficin.1 de corrcos dd municipio d .. Ood1as pH• cerciou r si po<lia rcmitir correspondenci•s pHa Manila. Q. Were you •blc ro send anr correspondence 10 Manilo? ll. No, Seii.or, porque scgUn el ttsorero no sc podio ya redbir, porque h ciud.1d de ~f,nih cstabo ocupoda por los i•pontws. (c.n.t. pp. &-10) Federico A. Pigason, estafctcro de la ofi - cina de corrcos de la ciudad de lloilo, :antes y despues de la gucrra, ascver6: "Q. Whrn was the Post Office in the Province of lloilobcgantooixotothepublic? R. On July 4, 1~141. Q. Will you pk•se tell us wheu were the m•Ll facilities for 1hc Municipilities oixned after 1he hbcrotioooftheprovinceof lloilo? R. After 1he libcution in die province of lloilo, the PCAU or the Philippioc Civil Affairs Unit tried to facilitate mails in t he provinces by means of moil carrier; then when the offic~ wis officiolly opened by the post office on J<il}· 4, 19H, we hired the Philippine Railroid and .n t he buses to bring moils to the Municipalities; ond now we have also Hcomcr• and airphnes. Q. What hapixned to the post office afier the bombing of lloilo on December 18, 19411 A. You mnn 1hi1 post office of lloilo in 1he City of 11oilo1 Aftcr that, we transfcrrrd in Lo Pn. "'Q. Don"t you kn(lw if by requcn through the Army post office mail could be sent frnm ll(lilo to the Uni1ed States? A. T(I the UniHJ States we did not have an}' arrangement, but all mail in lloilo were d~ livered 10 /I.PO 711. (t.n.t. pp. 2 y 1) Leon:irdo Cocjin; Tcsorero Municip:tl y Postmaster de! municipio de Dueiias, testific6: '"Q. In the yur 1942 or 10 be exact before the Japanese invuion of the hhnd of Panay, were you holding the ume office in 1he government? A. YeJ, sir. Q. And the same placer A. T he ume phce. Q. Do y(lu know a person by 1hc name of Mori• Labaco in her lifctimd A. Y~. sir. Q. Do y(lu kn(IW also 1hc plaintiff in thiJ ca•e • Parricio H. Gubagaras? A. YeJ, he iJ the husbrn~ (If the lare Maria La· baco. Q. Will you plusc tell the Court if y(IU hHc l«n this person sometime in the month of Januuy, 1942 in Dueiias? A. So for a! I on remember, this couple Patricio Guhguas md the late Maria Labaco had come tome in my (lffice in Dueiiai;onor abou1 the Ian doyJ of January, 1942 ,.,.;th the purpo..., of inquiring as to whether it wu po••ible during that time to send money by mail. Q. Do you know to whom did they intend t(I send money by mail at that time? A. They tried 10 Jend m(lney 10 1he Wen Co>st Life lnsuuncc Company. Q. Upon inquiring (If the couple Patricio Guha· gnas, the herein plaintiff and hiJ late wife whether it was pouible to send money by nuil to Wen Coau li fe Tn1urrncc Co., what was your answer? A. 1 t(lld them that during that time there wu no more facility of tronsponnion between Mmila an d lloilo, and besides, the Japanese 260 Force• were occupying the City of Manila; I told t hem. " It JCCms to me, !(I send money to Manila is futile." (t.n.t. pp. 18-20) El inrcrcs de Gubag:iras de hallar un mcdio de cnviar a la agcncia de la cornpailia, en Manila, el importc de la prima quc vcnci:i cl l.o de Febrcro de 1942, revcla su deseo de cumplir con las condicioncs de la pO\iza Exh. A. De su p:irtc, quc mcdidas ha tomado la cornpailia p:irn prescntar a Gubag:iras el re· cibo, dcbidarnentc cxpc<lido y contrascii:ido, hacia esa fcch:i, J.o de fcbrcro de 1942? Gregorio San Jose, supcrintcndentc del dep:irtamcnto de reclamacioncs de la Compaiiia, declar6: "Q. Yuur l·fonor pleJsc. W ill ycu please tell u• what hJppened to your com1uny un 2 Ju11e 1942 (sh(luld be JJnuory) wh~n Manila w.u officially occupied by 1hc Ja1>rnest lmpcri•I Forces? A. We were fornd upon order (If the enemy force 10 close our business, being an American C.:.1n· pany. Q. Can y(IU 1ell u~ if there is any inrnred from the province of lloilo who was able to continue paying the premium due from 2 June (sh(lulJ be Janu.ry) 1942 up 10 the time of liberAtion in 19-4!1 A. There wat n(lt a single policy holder who was able 10 Jtnd their premium. Q. Will you please tell us when was your ?.hnila bunch (lfficc (lixned to 1he public? A. December l, 19-41. (1.n.t.pp.29-)0) En contrastc con_ las gcstioncs que, hacia fines de cncro de 1942, Gubagaras hicicra para encontrar un medio de cnviar el imporce de la prirna quc vcncia cl 1.o de! mes siguicntc, la compaiiia nada hizo para cumplir con la obligaci6n que tenia de presen· tar a los :isegur:idos el recibo de dicha prima, debidamente firmado por su presidentc, vice prcsidcnte, o secrct:irio, y contraseiiado por la persona antoriz:ida p;ira recibir su importc. Se did quc, cst:indo la cornpaiiia en S:in Francisco California, allendc cl Pacifico, :i miles de mill:is de distancia de las costas de Filipinas, con la :igencia en Manila ccrr:id"l por orden dcl cncmigo, nada humanamentc podia hacer. Est:i scria, indudablcmente una cxplicaci6n plausible. Mas, si la paralizaci6n de las comunic:icioncs, la ordcn de cicrre de su agcnci:i en Filipin:is, dada por cl encmigo, b gucrr:i, en una p:ilabra, constituye para la compailia una excusa buena y valida, porque no ha de scr legal y cficu para el ascgurado? Porque las consecuencias de l:i gucrr:i, que impidicron a ambos contr:itantcs cumplir sus respectivas obligacioncs, ha de favorcccr a la compaiiia, que sc limit6 :i cruzarse de brazos, amp:ir:indosc en b doctrin:i de la causa de Statham, y ha de imponer el ascgurado, sin culpa de su pane, cl castigo de la pCrdida de todos sus dcrc· chos despucs de la diligcncia que cmpleara para hallar un mcdio de cumplir con su obligaci6n de pagar la prim:i quc esraba por veneer? T l-I E LAWYERS JOURNAL Dcspues de l:i gucrra civil americana, con mcnos rnotivos, porquc los Estados Amcricanos forema n un territorio comp:icto y unido, sin mares quc los apartcn como cl gran occano que separ:i California y Filipin:is, en H amilton vs. Mutual Life Insurance Co. (11 Fedcr:il cases, 35 1, 358, 359 , 360), decidicndo la contenci6n en favor dcl bencficiario, el T ribunal sostuvo: "'The defonw is also set u11, 1hu the policy. hy its term<, cc . .sed 10 txiu by reason of the noup3yment of the annual premium that was due >nd poyahlc 011 the 2nd of March, 1862, and tl•>I thereby, also, all previous paymenu made by Goodman became forfeited 10 the defend.nu. replied, on the pan of the pliintiff, to 1his dcfe11se, that the agencies from the stotc of Alab•m• in March, 1861, prevented the payment vf Goodmon of his annual premiums, ond thereby waived such payments, all of which becante due after the 16th d"f August, 1861, the act of the dofondants having prevented the p>ymcnu in Ahbama, .and the effect of the war being to make Juch parment< >t New York, by Goodman, unlawful. ""If it was a pan of the contract entered in10 by the defendants, or of their obligations 10 Goodman undrr it, that Goodman should have 1he right to pay his ann ual premiums to an agent of the defendants in Alobama, and If the defrndants were bound to provide In Alabama, during tf.~ con1inuance of the risk on the policy, an ogenr to receive Juch premiums then Goodman was not bound to Jeck any otl•er recipient of such paymcnu dun •uch agent, and wu not bound, for w•nt of any such agent, to Jl>Y the premium•, directly t(I the defendanu at New York. In the application made in February, 18-49, for the policy issued to Mr<. Goodman in March, 1849 Goodmon is described as residing in Mobile, Alabam>, and u being a wharfinger there. In his application of March, 18f8, for the policy (If 1818, and in that policy, hei• de<eribcd os of Mobile, in the state (If Ahham~. All 1he premiums that he paid, were with 1he kn(lwlcdgc of rhe defcndwu, paid at Mobile, t(I McC(ly, their agent there, and were received by t he defendants through and from McCoy. Good· mon resided in Mobile from 18}1 up to his death, onddiedat Mobile. In the absence of any notice to the C(lntrory, 1he defendonts mun be held t(I h>ve C(lntinued t(I undustand that he continued to reside in Mobile. llis application for 1hc policy of 1818 W•S m•dc through McCoy, at Mobile, the policy was delivered to him through the hands of McCoy, at Mobile, and burs McC(ly's sign>ture, as agent at Mobile, the three payments (If premiums in 1819,1860 rnd 1861, were made thru ~lcCoy, ot ?.fobilc, and the receipts therefor beH 1hc signature (If McCoy u ihc dcfendanu' agent. The policy conuins on its face the words: 'Agenu (If the C(lmpany arc authorized to receive premium• "'hen due, hut n(lt to make, alter, or di1chari;e contracts, or wiive forfeitures.' It is conttndcd by the defendants that there wu no obliguion on them to k«p an agent at Mobile or in A!abann. Considering the charoctcr of the contract, the circumsunccs under which it was entered into, the fact thn Goodman wis, with the kn(lwlcdgc of die defendants, 1 ro1ident citizen of Al.bama at oil times, the hct thH tho c(lntr.ct must be reg.rded u having been entered into, and C(lntlnued in (lpCr>tion by the defcndanu, ot lust as long as they themselves ncognii.ed it~ C(lntinu~nce, thn is, until March 2nd, 1862, with reference to, and in subordlnati(ln, on their part, to such 1otute bw (If the state of Alabama as sh(luld be en1cted on the subj(C! of their keeping 'agents ln thH state, May 31, 1949 ond dw f•ct that the •sency of McCoy, h.v ing born continued during the life of t he policy up to M.rch, !861, w.s then withdown, if must I lhink, bl' lu/J, lhat thl' JrfmJ11nt1 werr brmnd lo kup ;,, A/11b1111111 an agr"f to wh"'" Goo,/1111111 ro"IJ pay his 11m11111/ pu111i11111s, or cou/J, at l1'11st, offrr or tcmfrr /w}'111r11f, iucb agt11t to br appoiutrd i11 co11fQrmil}' ll'ith iurh 1f<ll11lt law, 11111/ /hat, if tht abuurr of 111ch agr,,f was 11/1 that prn,·r11trd the pay111c11t of 1uch prcmimm by Goodman, lhr Jtfr11rl1111ts urr nlopprJ from ufling up /hr 11011fl<1y111rt1/ of 1uch prrn1;11ms at lhr finm 1/ipulalrd tb..rrfor 111 /1 Jrfrnsr lo this nit. 1'hr 1·1'id1·11cr shows prcu11i11ry ability a11<l willit•s,11ru 011 thr part of Goodmau to pay tbr premill•llS al lllobifr, a11d that thr reason why hr 1/iJ t1ot p11y th1·n1 thrrr 11•111 /hr11bsr,.cr of auy agent therrof the drfr11J11,.1s. I sec no leg.I objection to 1he c\•idcnce on this 1ubject, ei1hcr u competent, or •S rnfficicnt to prove the facts. If the dcfend•nts l\'crc entitled to 1he punc1ual p•ymenc of the prcn>iunu, u • condition precedent to their continuing liability from yur 10 yen, thrir pre1·mlir:m of surl1 po)'ll1t11t, by tlu wilhdrar<:al of McCoy'r ngr11ry, amf of all othrr 11gwciu iu Afab~'""' ucusrJ Goodn1a11 fro"' ... alti11g tbt pay111rt1/s P""c/11ally, 1md Jebari tbr defr11,f11nts from stlti"g UP SUCH \VANT OF PUNCTUA LITY as " dtfe111r ;,. Jhi1 U<it. W illiams v, Bank of U. S. 2 Pet. {27 U. S.) 94, 102; Vm Buren v, Oigge•, II How. 02 U.S.) 461, 479. There is no force in tl1e objection, th•t the defcnd2nu could not, during the wn, h..-c received from 1heir agent in Ahban12 •ny moneys p1id to him there u premiums, or thar such moneys would have been confocaud in t he h•nds of such agent, if paid to him. If chc •gent h•d been provided, Goodman could ha•·e tendered the premium, 2nd the agent could have rofu1Cd1orccciveit,bec•u1C he could not remit it, and because it would be confocated. The rights of Goodman would thus have been pre!ft\'cd,•ccordingtothctcnorofthe contract. The ln1, if any, which would have ensured to the defendant!, was a 1011 incident to che WH, and "''ith which Goodm1n had no concern, and the apprehension or c~rtainty of which could affrct his rights. The unlawfulness of any receipt by the ddendanu at New York, from Goodman, or any other pcnon in Alabama, during the war, of •ny money's paid al premiums, C•nnot affecc an)· right! of Goodman in rtspcc1 of having the opportunity of P•ring such premiums in Ahbanu, or bcsetupbythedefendantJas•groundofforfriture ·of the policy in respect of such righu. U11dtr lhtst 1ir1H, !lit co11/;act was 011/y JllJpr,,,/cJ d11ri11g the war. After the end of the wH, the ri,i;ht of Goodmm to poy 1he premium• which he had been prc\'cnted from paying by the •ction of the ddcndmts, continued in •ll re•pcct1." The withdrawal of th~ agency of McCoy, •nd of chc othor agcncie1 in Alabama, m•dc it unncns· nry for Goodmm to seek ou1 McCoy or some other pnson who had been an agenl of the dcfcndann in Alabama, •nd tender 1he premium•, u due, to him, even though, u would •ppur from the evidence, i\lcCor rc•mined in Alab•m•, accenible, during a part, at least, of the w.r. Especially i• this so, in view of the fact that Goodm•n had notice of the revocation of i\kCoy's Or. •II these considera1ions, I am of opinion dut lhc 1lrfcn,/111Jls m111t be rrgarJtJ ill h11d11g prr1n1/rJ Goodma11 fro•" payi11g his prrmi101u, as dur, ;,. Alaba,,,a, wbut ht had 11 right by /Ix co11lr11c/ to pay lhtm, 11nJ, lbtrrforr, 11s hal'i"g waivrJ 111ch p1wcfllal paymr,,t; that lbt policy w111 110/ a11J ii '101 f<>rftiltd b)' rr111011 of lhr 1J011-pay111r11t of prrmi1Jm1; th11t it i1 a 1·0/iJ aJid 1ub1isling policy ag11i111t the drfcmlan/1: and th•t the plaintiff wa<, when he brought this suit, in 2 pol'ition to 3'k the relief puyed for by the bill. These views recognize fully .ll the term! of the i>0licy, and do not interpol.re in the contra-ct of 1\-foy }l, 1949 the parties my provision, by way of u.cu1c for the non-payment, on the stipulated day, of m y premium, which is not within the terms of the contrac1. lt isof1heessenceofeverycontract, th11, if one pHty to it prcvenu its perform•ncc by the other puty, the formrr cannot be allowed to rup any benefit from the fact of such non-performance. In this case, the prevencion by the defendanu of performance by Goodm•n wu equivalent to actual performance by Goodman, or lo a waiver by the defrndants of such l"'rformance." (Ju lies suppl ied). H ay, adcmas, cstos otros prccedentcs: "And, although 1he cue cannot be so urongly put, I t hink it is equally den tin t, when the •Ssurcd wa! involved in no default, but was at t he pbcc "'·hen •nd where p•ymcnt was to be m•de, ready and willing to p•y, but wu prevented by the disability of che company to receive paymen1, from whucvcr cause, he having had no agency in producing it , the c.ompmy is not entitled to cbim the for feiture, or to be re!ic•·ed from its obligat ion to pay the sum usured." {The M•nhattan Life Insurance Co. '" W Hwick, 20 Gratt (Vs.) 614 , l Am. Rep. 218, 22 0, the Supreme Court of Appeals of Virginia). "It is urged that the Ian premium wu not p•id, and hence the p0licy became void. If it were not paid, I do not think 1he conll'quences claimed would follow. The war susl"'ndcd this contuct, and no forfeiture for non;payment would arise while the war laned, provided t he premiums, wit h proper interest, were promptly paid on the return of puce." {Sands v, T he New York Life Insurance Co. rn N . Y. 626, 10 Am. Rep. llf, !4l) {lt•lics supplied) "Then, 3S 3ccording to principle and consistent authority, the contract w•i not dissolved by t h~ "''It, how can this court, consistently with the spiritofthcli1crJlcondition)ndthcfacuofthe cue, adj udge the ·policy )voided by the inevinbk non-pl)'mcnt of premiu,mf Such 1 decision would seem to be as unreisonblc as unjust." (New York Life Insurance · Co. '" Clipton, Etc., 7 Bush {Ky.) 179; 3 Am. Rep. 290, 29!) "• " " " And , .ccurdins to ) Canadian decision, if a foreign companr cc~scs to do bu•iness at the pl•cc where the premium i1 stipul21ed to be paid, 3nd mainuin• no known •gency there, non-p•yment ii excused."• • " ) Couch, Cyclopcdi• of lmurmc~ bw 2!!9. TERCER ERROR T HE LOWER COURT ERRED IN NOT HOLDING THAT iHE PLAINTIFF WAS GUILTY OF LACHES DESPITE PLAINTIFF'S DEFAULT IN THE PAYMENT OF PREMIU~·tS AND FAILURE TO APPLY FOR REINST ATEMENT UNDER THE ' REINSTATEMENT' CLAUSE OF THE POLICY. Conticndcse que durante la gucrra Gubagaras y Labaco no han ofrecido ni consignado ante los Tribunalcs cl importe de las primas de su p6liza. De haber la compaiiia opcrado en Filipinas durantc la gucrra, hubicra cxpedido p6lizas, complctamentc saldadas, porquc la abundancia de dinero militar japoncs buscaba inversi6n. Teniendo csto en cucnta, lo mas probable es que Gubagaras no hubicra dcjado de pagar un.1 prinn scmestral exigua de 'P-68.96. Pero, suponiendo que G ubagaras hubicra consignado, oportunamcnte, en dincro japones, el importc de hs primas quc hubieran vencido de h p6\iza Exh. A, lo aceptaria THE LA WYERS JOURNAL Philippine Decisions la Compaiiia? Ciertamentc quc no, porque no le daria ningun valor, y aunque VJlicse algo, seria inaceptable scgun la doctrina en cl caso de Statham. Sosticncse que, despucs de la libcraci6n de la provincia de Iloilo eor las fuerzas amcricanas y antes de la muertc de Labaco, 1 05 asegurados no ban solicitado la rehabilitaci6n de su p6\i1.a Exh. A, ni han hecho nad.1 para pagar a la 'compaiiia las primas vencidas de tres aiios. I.a provincia de lloilo fu C libcrada en 22 de marzo de 1945. Labaco fallcciC el 30 de mayo del mismo aiio. En cse ticmpo, la compaiiia no habia habicrto aun su agencia en Filipinas. Las oficinas de corrcOs, de la provincia de lloilo, sc rcabrieron cl 4 de julio de 194 5. Todo esto significa que antes de la mucrtc de Labaco no habia facilidadcs de rcmitir dincro, porquc su cnvio por giro postal no sc habia aun rcstablecido. Por otra partc, como dice en su alcgato h rcprcsntaci6n dcl apclado, solicitar la rchabilitaci6n de la p6liza Exh. A, valdria tanto como admitir que la mi5ma habia caducado. CUAR TO ERROR THE LOWER CO URT ERRED IN APPLYING THE PROVISIONS OF ARTICLE 1105 OF THE CJVIL CO DE TO THE PRESENT CASE AND CONSTRUING IT TO THE SOLE BENEFIT OF PLAINTIFF. La rcprcscntaciO n de la o tpelantc sosticnc q ue, en cuanto a los contratos de scguro, b1 disposicions gcncralcs dcl COdigo Civil careccn de aplicaci6n. En Musgiii vs. West Coast Lifo Insurance Co. (61 Phil. 864), cl T ribunal Supremo sostuvo lo contrario: "2. Id.; NU LLITY; APPLICAB ILITY OF CIVI L LAW.-Whcn not otherwise specially provided for by the l n111rancc L•w, the contract of life in111rance is g°''crned by the general rules of the civil law reg.rdins concr.cu. " (Syllabus) En cstc asunto, en quc no hay morivos justificados par.1 culpar a ninguno de los contratantes por la falta de cobro o pago de las primas de la p6liza en cucsti6n, vienc al caso cl prcccpto dcl Art. J 105 dcl COdigo Civil, tendcntc a suplir deficicncias dcl contrato, tanto mas cuanto quc cs ya rcgla admitida la de cvirar confiscacioncs, mediante Una intcrpretaci6n fa vornblc a lo~ asegurados. "The rule applioble to contrans gcncully, thn a written •grccmcnt shou ld in enc of doubl as to the meaning thereof, be interpreted •gainst the party who hu drawn it, is very frequently •Pplied ro policies of insurance 3nd con1titutes an important rule of construction in such rtl!"'CI, in view of 1hc fact th•t ordinarily, and in puctically all cases, it i~ t he insurer who furnhhed or prcplrcs the policies used to embody the in1urancc contr•cU. The gener•l rule is chat tcrm1 in an in111rancc 1>0licy, which art ambig11ous, rquivocal, or 1111crrlaill to the rxtml tha~ the i1Jlt11tio11 of tht partiu is not clear and cannot be nccrt•ined clearly by 1he application of theordinHy rules of construction are to br com/rued strict/)/. i11 and most slro11g· ly •gai111I /be i"J1irn, anti liberally ;,. favo r of 26 1 Philippine Decisions tht imurd, so 15 to effect the dominant purIJO'C of indeminity or pAyment to the insured, tspecia/Jy where a forfrilurt is i111:ol1'ttl siurt tht forfeiture of inrnr1111ce policies is not hvorcd by the court1." [29 Am. Jur. 180, 181] (U11JrrJcoring supplied) "The severe hardship• to which the insured wn formuly subjected under the older concepts of contract law and because of the 2dv2nt2geous econo· (!'lie position of the imurcrs 10 impose unfair sti· puhtio1u and conditions is well known. Comprehensive legishtion regulning the activities of insurers, hA•·ingasitsobjcctive1hcprottctionofthcpublic and those insured, h>S bt,come very common in the United Sutcs. In keeping with the judicial policy of cormruing insurann policic• in favor of the insured, kgidHion enacted for the purpose !."f his protection han usully b~n liberally construed in fJv<>r of the public and the insured. Tbt larv /ooh r~·itb Jisf111·or 11po,, the forf,il1m:of the rigb/1 of thr im11reJ, and so slalitlts proltcling 1111d txle.,Jing thou rights art lrcateJ with librralit}'." ; Sutherland Statutory Construction, 3rd ed. sec. 710!, p. 393, lH. Xe alro 4I C. J. S. 387. (Italic• supplied.) · " It is a matter of common knowledge that large ~mounts of money are collected from ignorant persons by companies and associations which adopt high sounding titles and print the amount of bt,ncfiu they agree to pay in large bbckhccd type, following such undertakings by fine print which destroy the substJncc of the promiJe. All prol'i1/ous, co11ditions or t\·ccptim11 r vhirb ;,. any way tmJ to u:ork. a forfti//irt of th~ po/fry VIOulJ bt muslrurd mo1f itrong/y againil tho1r /or who1<· brt1tfit tbry llrt imtrlrd, a11d inosl f•vordb/y fow•rd tho1t ag11it11/ whom thry 11rr 111ea11/ lo oper.lr." {Standard L and A. Ins. P,. "· Martin, 02 Ind. J76, J) N. E. IOI; l\kElfrcsh , .. Odd Fellows Acc. Co., 21 Ind. App l"l7, l2 N . E. 819; I Cyc. 243, wd caJes therein cited.) (Uniud Suus Bene". Society v. W atson, 1908, 84 N. E. 29, 31)" (Trinidad vs. Orient Protect ive Anurancc Auociation, 37 Off. Gn. 2674) (ltJlics supplied.) Se puede aiiadir, que la aplicaci6n dcl Art. 1105 dcl C6digo Civil al nso presentc cs de estricta justicia, porque en los contr:i· tos de seguro sobre la vida el silencio con respecto a los derechos de las. partcs, en casos de guerra, cs una omision-quc no debe beneficiar a las compaiiias aseguradoras, que son bs que red:ictan dichos contratos, y no pueden invocar a su favor sus propias faltas. La doctrina en el asunto de Statham, que en su segunda parte :idjudica al beneficiario el valor equitativo de la p6liza, fundandose en el principio ex aeq110 et bo110, es en esencia una modalidad del alcance del Art. 1105 dcl C6digo Civil, cuyas disposiciones supletorias tienen su 'aplicaci6n cuando cl incumplimiento de los terminos de! contrato no pueda en equidad y conciencia atribuirse a culpa o negligencia de cualquiera de los contratantes. En sus comentarios al Art. 1105 dcl Codigo Civil, el Sr. Manresa, dice: "En concreto, sc ha decbrado por el Tribunal Supremo quc connituycn casos de fucru mayor:. , , . , . . . . . ; el hccho de la conflagraci6n curopea y de la guerra, que trutorn6 las cconomias mundialcs y priv6 a las compaiiiu ferrovi2ri2s de los medios neccn arios (como locomotoras, ngone• y carbon ingles) , p.ra cumpli r enctamentc los conuatos de tra1porte cstipulados con lm pnticularei (Scntcncia de 2 de febrero de 1926; ,") (I Manrcia 90) Se confirma en todas sus partes l.1. sentencia de que se apela, con las costas :i 262 la apelante. Asi se orden:i. Torres, f., concurs in a separate opinion. Labrador and David, ff., concur. Juco, J., dissenting: Believing that the doctrine laid down by the decision of the Supreme Court of the United States in the case of New York Life Ins. Co. vs. Statham (93 U.S. 24, 23 L. ed. 789) is based on strong and sound reasons and on high authority, I dissent. (On Oct. 4, 1946 Justice Jugo, then Judge of the Court of First Instance decided the case of Paz Lopez de Constantino vs. Asia Life Ins. Co. (No. 71875) in favor of the Insurance Co. The case is now pendin~ decision by our Supreme Court.) TORRES, Pres. J. concurring ; The essential facts in this controversy, as clearly . related in the decision penned by Mr. Justice De la Rosa, are as follows: On August I, 1940, Patricio H. Gubagaras and his wife, Maria Labaco, were insured by the West Coast Life Insurance Company for the sum of 'P2,000.00. The joint rwenty·year endowment policy is sued by the company being a mutual benefit made the surviving spouse the beneficiary of the other and both of them parri· cip:ites in its profits. The premium was payable every six months and the last premium paid covered the semester period ending February I , 1942. In the meantime, on December· 8, 1941, w:ir was declared in the Pacific, and on January 2, 1942, the J ap:inese invading forces occu· pied the City of Manila. This caused the disruption and paralyzation of all means of communication between the capital of the Philippines and other points outside of the City of M:inila. Maria Labaco, one of the insured, died in the municipality of Dueiias, province of lloilo, on May JO, 1945, and on June 18 of the same year, Patricio H . Gubagaras, the surviving spouse and co-insured, notified the company of the death of his wife (Exhibit " !"), and requested that he be furnished with the necessary forms to support a cl:iim for the payment of 'P-2,000.00, the amount of the insurance. The company replied that in view of t he failure of the insured to pay the premiums due after February l, 1942, the policy, Exhibit "A,'' had lapsed and, therefore, payment was forfeited. After an exchange of correspondence, on June 24, 1946, Gubagaras finally brought in the Court of First Instance of Iloilo the corresponding motion against the West Coast Life Insurance Company. After proper proceedings, the lower court, in a judgment rendered on J anuary 30, 1947, found for the plaintiff and against the defendant and ordered the latter to pay the former the sum of 'P2,000.00, from which shall be deducted the total THE LA WYERS JOURNAL amount of premiums due and remaining unpaid until May JO, 1945, the date of the death of Maria Labaco, with legal interest from the date of the filing of the ~omplaint, and the costs of these proceedmgs. In this appeal, the defendant-appellant West Coast Life Insurance Company, assigned several errors allegedly commincJ by the trial Judge. The main point raised by counsel is based on the proposition that, contrary to the holding of the lower courr, the policy issued by the company to the plaintiff and his deceased wife "had lapsed for non-payment of premiums due." As previously stated, all means of communication between Manila and the province had been interrupted by the war and the occupation of the t ity of Manila and other places in the Archipelago by the Japane!i_e forces. The policy, Exhibit "A", was issued by the home office of the West Coast Life Insurance Company located in San Francisco, State of California, U. S. A., through its agency located in the City of Manila, Following the practice of com~ panics authorized to do business in this country, the defendant "sold" the insurance policy, Exhibit "A", to the plaintiff and his deceased wife through its agency established in the City of Manila prior to the advent of the last global war. We may thus take judicial notice of the fact that a foreign insurance company, which has been authorized under the Philippine laws to do business in these Isl:inds, establishes its local office or agency through which it reaches the public in the Philip· pine Islands to "sell" its policies. It can not be conceived that these persons who, like the plaintiff and his deceased wife, have been locally insured by the defendant, an American company with home office in the City of San Francisco, State of California, U. S. A., would have contacted directly the main office of said company in order to be insured by the latter. In the ordinary course of business in the field of insurance, the applicant is investigated by a local representative of the company and, what is most important, is examined by the company medical officer before his application is submitted to the main or home of.fice for its approval. In view of what is stated in the preced· ing paragraph, it is quite s:ife for me to conclude that the payment of the premiums on the policy in question was not made directly "at the home office of the comp:iny in the City of San Fr:incisco, State of California, U. S. A.," as is printed in the policy, but ''to an authorized agent of the company," as is likewise stated therein. - And I do not say this in vain, because the record. supports my point of view in this respect. When the communications between rhe province of Iloilo and the City of Manila Were disrupted and May JI, 1949 stopped by the war, the evidence shows that the plaintiff-who joinrly with his wife had been paying rhe premiums up to the 1st of February, 1942 when the J1panese Imperial Forces were already occupying the City of Manila and other parts of the Archipelago--made every possible effort to contact the local agency of the defendant company because he w:mted to remit to the Manila office of the defendant the semester premiums due from February I , 1942. The post-office in the municipality of Dueilas was closed, and he was informed by the municipal treasurer that there was no business tCansaction with Manila which was then already occupied by the Japanese forces. He went to the City of Iloilo and his inquiries brought the same result; in fact, the postal ·service in the proVince of lloilo was re-established only in July, 1945, after the death of the wife of plaintiff. In view of all those facts and circumstances, it having been clearly proven thar the failure of this plaintiff to make fu rther payment of premiums due on policy Exhibit "A" was caused by the stoppage of all the means of communication between his place of residence in the province of Iloilo and the City of Manila, where the Philippine offices or agency of the defendant company were established before the war, and it being a matter of common knowledge that the offices of all firms and companies of American nationality have been closed and liquidated by t he Japanese Military Administration soon after the beginning of the occupation of these Islands, it would be utterly unreasonable to contend that because of the plaintiff's failure to pay the premiums due from February I , 1942, "the policy lapsed without value" (Exhibit "C" of plaintiff). i111possibiliu111. mdla ob/igatio rst (there is no obligation to do impossible things-Wharton L. Lex). l111pot c11fia rxrnsat la8rm (impossibility is :m excuse in the law-Bouvier's Law Dictionary). These arc maxims which arc in all fours with the case at bar. It c:mnot be successfully alleged, and much less proven, that the plaintiff did not do his best to contact the Manila office of the defendant company for the payment of the premiums due beginning from February 1, 1942. The efforts m~ade by him are the best evidence of his -earnest and honest intention to comply with his part of the obligation contracted and commitments made by him when he accept~d the policy Exhibit "A" issued by th_e c.ompany upon acceptance of his appl1cat1on by the home office. It is not my purpose to state here that the defendant company was at fault when its local office was closed by the Japanese Military Administration. Even if the Japanese Military Administration had permitted the local agency of defendant to transact business during the period of miliury occupaion, the lack of communication between Manila May 31, 1949 and the provinces particularly the province of lloi\o, would have just the same resulted in the failure on the part of the plaintiff to remit and the agency of the Company to reco.'ive the premium due from February 1, 1942. In this connection, the evidence of the defendant has strongly endorsed our vie·.v in t he premises, when by its Exhibit "G", a circular letter dated June 15, 194):, addressed to its "policyholders in the Philippine Islands," the President of the comp~ ny, among other things, says: You will appreciate how impossible it lus been for us to communicate with or scn·e in any way either policyholders or reprcscnutivcs in the hland•. Our Resident Manaser and Resident Secretary have but rec.-ndy urived in the United Sutes following 1hdr libcrnion from Los B .. ios and Santo Tom,.. and given us a report regarding our former Branch Office in Manila. We desire.to rc-opfn a se rvice office there ju11 as won as this is pfrmitted and becomes poisiblc. Now and up-to-dace policy record1 are being prepared for this pu rpose from the original records here in the Home Office, under the SUpfrvision of our Resident Maitagcr and Resident Sec retary for che Philippines. Mean..,·hilc, may we hlvc your correct present mailins addrcu, in order 1ha~ we mJy furni'h you wi1h information as to the prc~nt 11mdini; of your policy. Plea~ complete 1hc e"clo~d form• giving 5uch additional information u you desire and return to us in the sclf.,ddre .. ed em·dopc enclosed for this purpose. Thi1 letter is lxing mJilcd to all policyholder• in the Philippine l1bnd.s IO their la11 known m~i! ing address according w our records. No doubt many of our policyholders have bttn compdlcd 10 move during d>is puc d1ree yun and there ma)' have been many changes of address. Consequcnt!r, 1-0mc may not receive their copy of 1hi• letter and we would appreciate )'OUr help by pauins in concencs on to any such policyholders with whom you may Ix acquainted." But, notwithstanding the cordial terms of the above-quoted letter, clearly intended for the resumplion of business relations between the company and its prewar patrons, the attitude of the defendant in this contro\'ersy is such that · it clearly denies the insured all the rights and benefits to which they arc entitled under the policy. An insurance company organized outside the territory of the Philippines and permitted to transact business in this territory must abide by the pro\'isions of the laws in force in this jurisdiction gov~rning life insurance business. We, therefore, can· not adhere to t he contention of defendant who, in his first assignment of error, con· tends that " the policy is the law between the parties." The law governing the subject matter of insurance is superior to the terms of the policy. In Musngi v. West Coast (61 Phil. 864), the Supreme Court held that in the absence of specific provisions in t he Insurance Law, No. 2427 as amended, a contract of life insurance is governed by the rules of civil ~aw regarding contracts. Thus, if accordmg to Article 1256 of our Civil Code, "the THE LAWYERS JOURNAL Philippine Oeeisio'1s validity and fulfillment of contracts cannot be left to the will of one of the conlracting parties," the attitude of defendant in declaring that the policy Exhibit "A" had lapsed and become worthless on the ground of alleged non-payment of premiums, is utterl y unjustified, in that it is contrary to the provisions just quoted which is based on principles of junice, because it not only proclaims the binding nature of the contract as stated in Article 12 5 8 of said Code, but it likewise established the principle of equality which is so essential for the contracting parties; it forbids that one of the parties be bound by the terms of the agreement while the other is not (Manresa, Commentaries on the Spanish Civil Code, 4th ed., Vol. 8, page 556) Greatly relied by the defendant to support its contention in this case in the socalled Statham doctrine. fn the Statham case {New York Life Insurance Company vs. Statham, 93 U.S. 24 23 L. Ed. 789), the Supreme Court of the United States held that "an action cannot be maintained for the amount assured on a policy of life insurance forfeited by nonpayment of the premium, even though the payment was prevented by the existence of the war." The defendant also cites other decisions rendered in New York Life Insurance Company v. Davies (95 U.S. 425, 24 L. Ed. 453; Worthington v. The Charter Oak Life Insurance Company, 41 Conn. 372, 19 Am. Rep. 495; and Dillard v. The Manhattan Life fnsurance Company, 44 Ga. 119, 9 Am. Rep. 167) ; which cases also followed the doctrine in the Statham case. Defendantappellant contends that since the promulgation of the decision of the United States Supreme Court in the Statham case, there has been no departure from the rule laid down therein, because it has been followed in other cases. However, ·in the broad field of American Jurisprudence, contrary authority is found which shows that not all the courts of the United States agn:e with such ruling. In Manhattan Life htsurance Company vs. Warwick (3 Am. Rep., 218, 220), the Supreme Court of Appeals of Virginia, in holding that the lifr insurance policy did not lapse for non-payment of premiums due to impossibility of payment as a result of war, said the followmg: •• 0 • "' If 1he a•rnu·J WAI ot l hc pl .cc 011 the .t.y, " 'here ~nd "'·hen p•1•mcn1 wn IO be nude, md "'here he had a rit;hi IO nuke r•ymcnt, rndy ~n d prcpHcd to nuke payment, bur W • S .. Prc•·cntcJ by cichef of ihe c•us•• mentioned, it would be unrc••oruble to uy tint he had incurre<I for forfeitu re. And I think it is equ•lly clear, upon rnson and authori1y, 1hu the company was noc thereby rcleued . from iu obliguion to pay the sum assured. h would be ~ momirou• pcn·crsion of hw, and rcpugnrnt to our •·cry scnseofju1tice, to5ay 1hat this comp•n)'. ofcor havini; received more than hJlf the sum assured, could by chis act de1crminc the policy, hold on co 1hc money chey had received, and to say to their confiding victim, 'you may whistlt to the winds for your muitcd rcwHd, notwithstanding you rdied upon our covcn~nc and good faith 10 pay it.' 263 Philippine Decisions "And, ahhough t11e enc cannot lx: ~o strongly pUl, I think it ii equally cleH tint, when th~ n· •ured wa~ \11,·oh'cd in no dehult, but w1s at the phcc when ~11<\ where payment wu to Ix nude, rudy andwillingtopay,bu1"·aspre\'entcd by1hc disability of 1hc company to receive pay111cnt, from wlutC\'er cause, he having had no agency in pro· ducing it, the company is not entitled to claim the forfriturc, or rn be relieved from its obliption to pay the sum assured." [n this case, the premiums covering the period from the date of · the policy up to January.) !, 1942, have been paid, and according to the law and the terms of the policy, when the first premium was paid, a full contract of insurance was completed, so that had Maria Labaco died soon after the p1yment of that first premium and before the next premium became due, the rights of the p\1intiff to the sum insured would have become vested, and a full contract of insurance completed. But the events were shaped in a different way. Maria Labaco died after the liberation and during the intervening period, the premiums from February 1, 1942 until her death, were not paid, due, because they could not be paid by reason of the extraordinary circumStances obtaining at that time. But the defendant, clinging stubbornly to the situation thus created thereby, refuses payment of the value of the policy. The Supreme Court of Appeals of Virginia thus said: " • • • The payment of the first premium covers the whole life-time, and makes a complete ,·em:d right to the sum insured, if doth ukes place lxfore another premium is payable, but if not, it is subject to the paym;nt ~f' funh;r premiums• • • ". •• • • ' When the first premium is P•id a full contract of insurmce is completed, subjecc to conditions peculiar to that class of contracu. The use of the words condition pr(Ccdent, Baron Martin, in a certain case (Bradford v. Williams, LR. 7 E:i;h. 261), said he thought unfortunate; that 'the real question, apart from all technical e:i;pression, is, whu in each case in the subsuncc of the contract.' So far as the precedent payment of the premium in arrur is concerned it would, of courie, have to Ix made before Hcovcry. Time, al!-0, is of thec .. cnccofthccontract,andnofaultorneglcct of the party could e:i;co1c a non-payment; but why shouldnotthis,likcanyothercontr.ct,besubject to such qualificnions and conditions as the law 264 may imposer (T11c Mutual Bendit Life Tnsu.,nce Co. v. Willyard, 18 A. R. 741, 749-710). It cannot be denied that, as contended by appellant, prompt payment of premiums is material and of the essence of the contract of insurance. This must, however, be qua~ lified by taking into consideration the time and circumstances surrounding the act of payment. Not in vain the mnim says: dislh1g11e irmpore ('/ co11con~11bis j11ra (Distinguish times, and you will make laws "agree, Wharton L. Lex.) In the light of what has been said in the preceding paragraphs and considering that the ruling laid down in the Statham case has been made by the United States Supreme Court about 7 5 years ago, during the horse and buggy period of the life of the American nation, it cannot be regarded as an over-all principle that sh:ill govern the relations between the insurer and the insured in the present age. Granting that, at the time of the promulgation of said decision on October 23, 1876, such ruling was good law, it cannot be accepted as such in the present circumstances of human advancement and Progres's. Law and jurisprudence, its companion and exponent, arc not static like the still waters of a pond; they go hand in hand with the progress and advancement of time; look after and provide for the needs and welfare of the community. "'Since bw i1 defined as the rule of rcuon applied to t:i;istiRg condit ioR!, as JUted supra note 10, and can rtmain static only as long as the conditions to which it applies remain sucic, it i1 a proper province of the law to interpret humm relationship, and to modify, enlarge, and develop with changing conditions of human affairs." (H C.J.S., 1024) In the present case, the Statham doctrine, while it gives full protection to the rights of the insurer, it disregards and repudiates the rights of the insured. Such law, and the jurisprudence which interprets and applies it to a given case, cannot be good law, because it does not give the interested pany, the plaintiff in his c:ise, the equal protection guarariteed him by the Constitution. THE LA WYERS JOURNAL Summing Up, therefore, all that has just been said, we do not hesitate to hold th;tt after a thorough consideration of all the angles of this controversy, the events that took place in these Islands as a result of the last war, undeniably constitute force 111ajr11rc, which resulted in mutual disability on the part of the insured to pay the premiums due after February I, 1942, and on the part of the insurance company to receive such premiums. In defining fortuitous event, Article 1105 of the Civil Code says-"Outside of the cases mentioned in the law and of those in which obligation so declares, no one shall be0 responsible for events which could q.ot be foreseen, or which having been foreseen were unavoidable." This situation has brought forth the theory of suspension of the contract of insurance :is against that of cancellation of the policy, advocated by the insurance company .on the strength of the rules laid down in the Statham case. The theory of suspension was for the first time discussed when the peace terms were being debated in Versailles, to end the First World War. The idea has since gained many supporters; even some life insurance companies adhered to the idea and showed their readiness to abandon the theory of cancellation of the policy. In this connection, Mr. Sidney A. Diamond, special assistant to the AttorneyGeneral of the United States, in an article entitled "The Effect of war on pre-existing contracts involving enemy nationals," published in 53 Yale Law Journal 700, made this significant comment: •·c011/rac/J UIS/Jemhd. Contracts held Juspended, rather than terminned, by the outbreak of war also fall imo group!. The most familiar type is the contract of life insurance. Although there are indications co the contrary, lheoverwbr/mi11g wrigbl of authority rcfu"'s totrUtalifeinsurmcecontract as dissolved by war. The rationale i$ that the contract! arc not commercial in nnurc and require communication between the partic$ only for payment of premiums, an obligation which cm be suspended 1111til #ftu Jhe wa ~ without serious con - sequences to either side." (Rejoinder to Appcllee'3 Reply Memorandum, by Ramires & Ortigas, Amici Curiae, p. j9) Premised on the foregoing, which renders it unnecessary to discuss herein the other points of sccond:iry importance raised by appdlanl', I hereby fully concur in the m:iin dcci~ion rendered in this case. " It is not Ire who never fails in his life that is a success; but it is Ire· who rises every time he fails." May 31, 194? ACCEPTANCE SPEECH OF SENATOR VICENTE J. FRANCISCO "The political campa;gn that J'Otl a/'e going lo willll'SS in the next few months is goi11g lo be biller. I ask alt of you to keep serene. Let tts present the issues involved clearly before the minds of the electorate. W e shall fight for principles, not J1erso11afitirs. Let us explain what our party sta11d1 for wilhouf bitterness or rxaggerafio11. Let us endeavor lo bring 1111dersla11di11g lo tbe voters by appealing to their instinct of justice and fair play instead of to their fear or weak11en. Let us keep i11/act the dignify of the ;,1dil'id11al cilize11, his absolute right lo bis opillion. Let us never descend lo abuse and caf1111111y, lo deceit a11d cy11icism, in order to aflai11 11ictory." This is rhe highlights of the acceptance speech of Senator Vicente J. Francisco delivered on May 12, 1949 at the Convention of the Liberal Party which nominated him candidate for Vice-President. The full text of Senator Francisco's speech follows: Delegates and fellow members of the Liberal Party, friends and guests, Ladies and Genclemen: The nomination for Vice President of the Philippines on the Liberal Party ticket and platform which today you have tendered me is both :m honor and a challenge. lt is a signal honor, because it brings with it the expressed confidence and support of some of the most outstanding citizens and public servants of our country. It is also a challenge, a ringing c;hallenge, to take sides with you in a grim struggle for a better government, a cleaner, more efficient, more popular government. The honor 1 accept with great humility. The challenge I take up with confidence :md determination, conscious as I am of all the obstacles and dangers that must be faced. In accepting this honor and challenge I give you my pledge to fight with you to the end, no matter how it may come, or whatever the cost. I consider the coming elections as momentous in our history. A number of vitll issues arc to be decided, but underlying everything is the fundamental one of whether we can have a government that we want, whether the people, making use of their constitutional rights, can bring about in a peaceful manner, the changes that they believe should be instituted. The eyes of the world will be upon us. Critics will not be wanting who will magnify and distort every fail ing th:tt we have in :i vain effort to prove that we have not lc:trned the lessons of self-government. But friend s we will also have, friends who will understand us, encourage us, help us keep the spark of the democracy burning brighter and more steadily in this dark p:irt of the troubled world. It is indeed to bz lamented that at such a time :is this, politic:i.l quarrels and disagreements should demand the time and emergencies· of some of our most gifted and valu:ible May 31, 1949 citizens. When there is so much to be done, when our rehabilitation is b:trcly started, when our w:ir shattered economy h:is not only to be restored, but also to be buttressed against t he threatening storms of a not too distant future, it seems indeed a pity that we cannot find a meeting of the minds, a peaceful solution of the difficulties and discords th:it split group from group and scp:ir:it.c friend from friend. But chc issues involved in this struggle arc so fundamental that no compromise is possible. To compromise is to sacrifice principle for exp<:dicncy. And it is iii the very nature of :i dcmocr:icy that when parties disagree over basic philosophies and politic:i.l thought, rhc people should be consulted. We sh:itl have shown the world our political maturity when we can bring such issues before the people, discuss :ill po\sible ~ides and implic:irions and obtai'n a m.wdatc in a peaceful manner. There arc m:tny of you here today who were also present about four years :igo when the Liber:tl Party W:is born. You will recall the circumstances that forced the founding of the party, how the people demanded peace and order out of the postwar confusion and violence; how they wanted the prompt reestablishment of governmental machinery; how they yearned to recum to the peaceful pursuits of peace which the war had so wantonly disrupted. You will remember that the crying need of the .hour then was a strong hand, a hand that was not afraid to do what had to be done. And bec:iuse the people needed him, a great le:idcr arose, Manuel A. Roxas. He gave us the spark of hope when the destruction around us made the strongest fairer, he provided the clear voice and the keen vision, he showed us where to go and led the way. Unfortunately he was snatched from our midst before he could complete his work. But fortunatel y he left behind him :in instrumentality that he h:td conceived precisely to carry out his program. And most fortun:tte of :ill, he left behind him his trusted lieutenant, :i m:in so close to him that their thoughts and ideals were similar, if not identical. By all that is logical and just and right, Jose Avelino, our candidate for President, is the successor of President Roxas, and no amount of specious argu-mcnts, no amount of political blackmailing, no amount of personal persecution is going to change that fact. As I look on you today and remember th:tt you have come from all p:irts of the country, from all isl:inds and cities :ind municipalities, bound together by common aims and fired by the same ideal of service, r cannot help but feel a glow of pride at the thought that I belong to the same party, that I am one of you. It is perhaps the measure of the strength of our party that in spite of the death of a leader our organization did not disappc:tr. Wh:tt better proof of the vitality or' the Liberal Party THE LA WYERS JOURNAL can be more eloquent tha11 the fact that we :ire held together by ideas and principles instead of personalities? What better m:inifestation of the broad, solid foundation upon which the Liberal Party is founded than your presence here today, the spokesmen and represcntativ,es of farmer and labor, of the trades and professions, of rhc humble and underprivileged? What a pity th:it President Roxas is not here today. He whose first concern was for the forgotten and ignored small "tao" would have smiled with satisfaction at this tremendous g:tthering here tod:ty. H e would have been overjoyed to see the familiar faces, the ·faces of the people that he trusted, the people whose love and loyalty he could depend upon. What pleasure would have been his to know that we h:ive kept not only our identity but also his aims and principles. H ow justified he would have felt when he learned that we have not compromised conviction for convenience, that we have temporarily lost pOlitical control because we had refused to cxpl~it the expediency of accepting the support of :i group whose purposes and objectives were alien to ours. He would not have missed the absent ones here today, the insincere and opportunists who pl:iccd personal ambitions above the welfare of the organization. On the contrary, President Roxas would have been glad to see that the parting of rhc wa}'S had come, for now what remains has been tried and tested and its strength demonstrated beyond :ti! doubt. My friends and fellow members of the Liberal Party, the political campaign that we arc going to witness in the next few months is going to be bitter and cruel. No opportunity will be missed by our enemies to sow dissension in our ranks and wreck our organization. To accomplish this, rumors, muck-raking gossip.s will be utilized. I ask all of you to keep serene. Let us present the issues involved clearly before t he minds of the electorate. We shall fight for principles, not personalities. Let us expb in what our Party stands for without bitterness or exaggeration. Let us endeavor to bring understanding to the voters by appealing to their instincts of justice and fair play, instead of to their fear or weakness. Let us keep int.act the dignity of the individual citizen, his absolute right to his opinion. Let us never descend to abuse and clumny, to dc:ccit and cynicism, in order to att:iin victory. Some four years :igo the Liberal Party went co the polls und.er similar circumstances as prevail today: In spite of tremendous difficulties, i~ scored :in overwhelming victory. If we keep the reasons for this victory cle:irly in mind, if we keep faith with the ideals of our Party, if we appeal co the people as President Roxas Would want us to d~, r predict. that next November's ~~~~~;pnhs w~}~ rh~ui~b!~alo~~~:}~· the gre.itcst 265 DECISIONS OF THE DIRECTOR OF PA TENTS DEPARTMENT OF COMMERCE AND INDUSTRY PHILIPPINES PATENT OFFICE MANILA DECISIONS OF THE DIRECTOR OF PATENTS IN TRADEMARK CASES Series of 1949 No. I Appliotion No. 985 (Bureau of Commerce) Filed Septcffibcr 30, 1946 EX PARTE JOSE TAN CHAU Jose Tan Chau, Petitioner Petitioner pro se PETITION FOR RECONSIDERATION DECIS I ON This is a petition of JOSE TAN CH Al!, a citizen of the Republic of China, domiciled in the Philippines, and doing business :it Badeo 4, MHbbon, in the Province of Rizal, praying th:it the ciccision of r.he Director of Commerce, denying the registration of his trademark UBER TY, be set aside and that his application be given due course in the Patent Office. The records of this case show that the petitioner filed with the Director of C~m merce on Septembet 30, 1946, an application for the registration ui1dcr Act No. 666 of the trndemark UBER TY used on bago011g and patis, which are articles of salty food in general use, derived from small fish. Without giving any definite d;1te, the petitioner a\leged in his applic:ation that he had employed the trademark "since America11 liberation" (meaning liberation of Manila by Gen. MacArthur's forces) . He further alleged that the trademark was applied to the "bottles or tins cont:iining the goods." The records further show that, in :i brief one-paragr:iph decision' rendered April 2}, 1947, the Director of Commerce rejected the application - "on the ground tlu1 uid tradcm.rk ;, identic~l ... ·ith the tradem>rk LIBERTY for edible oil, hrd, m•rgarinc, belonging to tbr su mr rluss cc, rcgiHcrcd in thi~ Office in fn-or of T>n Kh~k Chiok. Ill T. Pinpin, this City, on September l), 1946, No. Republic 1)8. Use cl.imcd definitely ';ince June 1, 1941.'" The records di~close d1:n the application of Tan Khek Chiok st:1ted that his trademark LIBERTY was applied to "tins, bottles or other containers containing the goods." The records also disclose that on May }, 1947, the applicant filed a motion for reconsideration, upon which the Director of Commerce was unable to act in view of the transfer a shore time thcreafrcr of the' func266 tion of tr;1Jemark registraLion from him to the Director of Patents. , The provisions of Act No. 666 upon Lhc authority of which the Director of Commerce refused registration of the petitioner's tr<>.demark UBER TY read as follows; "Sec. ll. • • • no ollcged tr•dcmark ~ ~ • ,],.ll be rei;:istercd • • • which is id~ntiol ... ,ith J rcgis· urcd or known uadenurk owned by another and appropriued to the Hmc d us of merclund;>c • " • " This provision is similar to Sec. 5 of the U.S. Trademark Act of 1905, which was in force until the enactment of the Trademark Act of 1946, which is popularly referred to as the Lanham Act. It reads :is follows: " • "• Prol'iderl, That trademuks which .re ide"tkol with a registered or known tndenlJrk owned and in use by another and oppropriaccd to mcrch~n disc of the umc des.:ripti\'C propcrtie1 • • • slul! notbcregii1cred." As interpreted by U.S. courts, the phrase ;:~;~?.a1~:saen5o~'g:d:a~e t~:sc;~~!v:l~s:~.~ Philadelphia Inquirer Co. v. Coe, Comm. of Patents, 55 USPQ 4}5. The phrase "the same class of merchandise," as used in Sec. I} of Ace No. 666, and "goods of the same descriptive properties," as used in Sec. 5 of the U.S. Act of 1905, h:ive, therefore, the same signification. As the trademark sought to lie registered and the one already·registcred arc admittedly identical, the only question before the Director of Commerce was whether bago011g and patis on which petitioner's trademark is used, and edible oil, lard, and margarine on which the registered trademark is employed, belong to the samr class of mcrchal/(lise or, using the equivalent phrase of the U.S. Act of 1905, whether they arc mrrchamlisr of the same dt"Scrijlfivc J1roprr· tit·s. If they do not belong to the same class, the petitioner's trademark is registrable under the cited section I } of Act No. 666, and the Director of Commerce was wrong in refusing it registration. But, if they do belong to the same class, the said section prohibits its registration, and the Director of Commerce was right in refusing registration. United St:i.tes courts have set up a number of tests b}' which the question whether or not two items of merchandise arc of the same descriptive properties (belong to the same class) ma}' be determined. lt is not necessary that the items under consideration pass all the tests, or a majority of them, in order to be adjudged to belong to the same class. These arc the tests. 1f the question in each case is answerable in the affirmative, the goods involved arc considered to be of the same descriptive properties {the same class). I. Can the two items be pot under a group C•Pablc of general definition, ~uch as groceries, cmnec.l goods, men's furnishings? Check-Ne.I Coffee Co. "· H .11 Dick Mfg. Co., 40 F (2) 106: Oppenheim, Oberndorf l!i. Co. \'. Pre1idc11t Suspender Co., j f ( 2) 88; In re lndcrricdcn C•nning Co., 277 Fed. 613. 2. Arc the t ... •o items u~d for the ume generJI purpose, as baking soda and b.king powder? Layton Pure FO<J<I v. Church and D ... ·igh1 Co., 182 Fed. lf; Emerson Electric v. Emerson Radio l!i. Phonogr>ph Corp., 90 F(2) HI. 3. Arc the ile1ns cap•blc of conjoim u•c, .s a shirt and a collar button for a shin? Clueu. l'e•body &. Co. v. Har1ogcnsis, 41 F (2) 9-4; Rmenberg Bros. v. Elliot 7 F(2) jl62. -4. Arc the items wld in the ume stores 10 1hc nmc class of c_unomeri? Cluett, Pc.body 6: Cn. , .. Hortogensu; ~osenberg Bros. v. Elliot, 1upr.1. f. ~re the items marketed by the ume method, as "' barrel•. boxes, cartons, bottles, OT tins? Cucker Jack Co. \', Bla11ton Citrus, 81 F(2) H). 6. Have the items ~en manuf.nured in the paS! hy the_ iamc m•nufacturer? Bccdi-Nut Packing Lorillard Co., 7 f(2) 967; Pittsburgh Brewery v. Ru~n 3 f (2) H2. 7. Ha\'e the items the umc acti\'c dcmcnt or ingredient? Layton Pure Food v. Church 6: Dwight, supra; B. F. GO<J<lrich Co. v. Closgord Wardro~ Co., )7 F(2) 4)6. 8. Arc the items monufactorcd from th~ nme r.w materiof? Kushner 6: Gillm•n v. Mayflower Worsted, ll F(2) 462; Ralston Purina v. Saniwu P•~r, 26 f (2) 941; Dcn1·er G•s &. Electric 1·. Alex>ndcr Lumber Co., 269 Fed. 819. Petitioner's bagoong and patis and the goods of the owner of the registered trademark---<:diblc oil, lard and margarine~long to the ume group op•blc of a genrul definition-groceries. b. arc capoble of conjoint u•c-PilfiJ rnd bagoo11J: ~nd cd1bk oil or lard arc often mi~cd together "' the preparnion of di~hcs for the dinner t•b!c. •re sold in the same ~tores to the umc customer!. d. are marketed by 1he tame method-retoilcd in bottles or tin1. By one-half of the tests, petitioner's goods and the goods of t he owner of the registered trademark arc merchandise of the same descriptive properties .:>r, in the words of the cited Sec. I} of Act No. 666, merchandise of the same class. T his being the case, I am of the opinion th:it the Director of Commerce did not err in refusing registration to petitioner's trademark. There is a rule in trademark law :ind practice that all doubts are resolved against the newcomer. "The reJSOn for this (rule) is e, ,, If that the field from which a person may select a trademark is practically unlimited, and hence there is no excuse for him impinging upon, or even closely approaching the mark of his business rival '~ * "· (William Waltke & Co. v. Geo. Schaffer & Co., 263 fed 650). So that, if it lie urged that tl1e classification of bago011g and patis and of edible oil, lard and margarine in the same class is Jt best doubtful, the decision of the Director of Commerce would still be correct, for he had resolved the doubt against the petitioner, who is the newcomer. His decision is, therefofe, affirmed. In this connection, it is interesting to note the following decision oft.he U.S. Commissioner of Patents rendered on April 9, 1947, M:i}' 31, 1949 interpreting the above cited Sec. 5 of rhe U.S. Act of 1905: "This is •n •ppt•l from the refuul of the Ex•miner of Tr•de l>brks 10 rcgi>ltr the notation 'PINE TREE' u • rude mark for 'nuur•I bulk Amerk•n Cheeu.' The •ppliution W•S rejected in view of prior registution of the umc mark for c.nned vegeubks •nd nrdincs. " In• cuefully prcp•rcd and elaborate brief, a]lplic•nt preunu the •rgument th•t likelihood of confusion is the 'only 3cccpt3ble 1en' in d e r~rn1iniug whether goods possen the tome dc•criptive propl'rties; and th•t since confusion is here unlihly, rhc propoRd rcgiscruion should be gr.med. But, while such orgument might once hH'C been pcrsu•>il'c. it comes 100 Inc. For both the Court of CustQms •nd l'•ttnt Appuls •nd the Court Qf Appc•ls for the Diurict Qf Columbia arc committed to the rule tlut identical marks nuy nQt be registered for merclnn<lise Qf the umc cl:an, reg.rdkss Qf confusiQn. In re Laskin Brothers, Inc., )2 C.C.P.A. 820, 146 F. 2d )QS (6-t USPQ 22!); Philadelphia Inquirer Co. v Coe, 77 App. D.C. )~, IH F. 2d 381 (n USPQ 4H). And th•t cheese •nd unned goods •re bro•dly of the 10me de«.:ripti•·c propcr1ie1, there is no longer room for doubt. W.B. Roddenbcry Co. v. Kalich (C.C.P.A.), 118 F. 2d !S9, 72 USPQ 1)8. "The decision is affirmed." E~ pute Lubs ChceR Co., 73 USPQ 8 L The foregoi ng decision shows chat the law of the United Sures under the Act of 1905, and the law of the Philippines under Act No. 666 are che same. In both cases, when the mark sought to be registered and the already registered trademark are identical, the only inquiry required to be made is, Do the goods, on which the two identical trademarks arc used, belong to the same class? If the inquiry shows that they belong to the same class, then the mark sought to be registered is refused, Any actual difference between the goods of the applicant and the merchandise of the registrant and any consideration that this difference may not actt1ally cause confusion and deceive the purch:i.sers as to the origin of the applicant's goods, arc imm:i.terial. If the goods :i.re found to be of the same class, che law, in both countries, simply prernmes that confusion and deception of the purchasers will follow, and the trademark of the newcomer is refused. The present trademark law has changed this method of approach to the problem. For comparative purpcses I quote in full Sec. 13 of Act No. 666 :ind the corresponding provision of Republic Act No. 166, which is Sec. 4 (d): ACT 666 "SEC. 13. The time of the receipt of '"Y such 2pplicnion 1hall be noted and u corded. But no alleged tradc-11nrk or tr>dc-n2mc •lull be rcgi1tcrcd which is merely the n2me, quality, or description of the muchandiR upon which it ;, to be used or the geographical ploce of its product ion or origin, Qr which is identinl with 3 rcgistcHd Qr known tr2dcmark owned by 3nother >nd approprilted to the umc dau of much•ndi1e, or which so ncnly reumblcs ano1hcr person's bwfu! trldc-nurk or tudc-namc .s to be likely to cause confusion or mistake in the mind of the public, or to dcccil'e purchaRu. In an application for regis1ra1ion the Director of the Buruu of Commerce •nd lnduury shall decide the presumptin lawfulntn of claim IQ the alleged tudemark. (A> a.,,r.,,fcd by Act No. 1407, sec, J{b), a11,/ 1JJQ1fjfit1I by Ari No. 2721.)" May 31, 1949 REPUBLIC ACT 166 ··sF.C. 4. Rrgillrafio" of tradc-111arlu, 1r~11r "~"' c1, a,.J Jtrdcc-111arlu.-Thc Qwner of a tradeni.rk, rude-name or st'rvicc-mHk used to diHinguish hi1 goods, business or services from the goods, bu~i ne!I or 1ervices of others shall lnvc the right to regisier thcume, un\essi1: "(d) Comins of or comprises a nurk or tndenamc which so resembles a m•rk or tradt-n•mc registered in 1hc Philippines or a mark or trade-umc prcviomlyuscdin1hcPhilippincsby3nothcrandnot abandoned, JS to be likely, when applied to Qr u•ed in connection wi1h the good1, business or servic~ of rhe lpplicant, to CJUS<' confu1ion or mistake or to deceive purchasers;" The foregoing provision of Republic Act No. 166 was taken from Sec. 2 of the U.S. Trademark Act of 1946 (Lanham Act), which replaced .t he Act of 1905. It reads as follows: "Sec. 2. No tudemHk by which 1he good1 of the applicont m~y be diuinguishcd from the goods of otherJ shall be refuS<'d registration on the principal register on aocount ofi1snatureunlcss it"(d) Consists of or compri1c~ a mark which so re<embles a nurk registered in 1he Patent Office or a muk or tndcnamc.prcviou~ly uud in the United Stues by •nother and nQt .bandoned, as 10 be likely, when applied to the goods of the applicant, to cause confusion or mi.cake or to deceive purchasers: ••• " Tt will be seen th:i.t the new trademark law (Sec. 4(d) ) omits all reference to identical trademarks and to the phrase "the same class of merchandise" which :ire employed in Act No. 666. T he new law simply provides rhat, if the mark sought to be registered is so similar co anorhei's trademark that, when used on the applicant's goods, it would be likely to cause confusion and deception among the buyers of such goods, its registration shall be refused. Bec:iuse of the omission of the phrase "the same class of merchandise," the inquiry in the new Act, in the case of identical marks, has shifted from " Do the goods of the applicant and those of the owner of the registered trademark belong to the same class of merchandise?" to "Will the concurrent use of the same trademark by the applicant and by the owner of the registered trademark likely to cause confusion and to deceive the buyers, so that they would think the applicant's goods originated from the owner of the registered tradC'mark ?" In determining whether such confusion and deception as to the origin of the applicant's goods are likely to take place, the nature of the trademark Used is taken into account. In cases of chis kind, U.S. courts have recognized two classes of trademarks( a) the fanciful, or arbitrary, or arbitrarily coined trademarks, which they term "strong marks"; and (b) marks consisting of common, ordinary, and well known words, which they denominate "weak nurks." The courts believe that the liability to confusion as to the origin of the goods of the newc-offier in the field is greater when the mark of the first user is fanciful and arbitrary, and less when the first user's mark consists THE LA WYERS JOURNAL Decisions of the Director of Patents of common, ordinary word. Tn suits for infringement the courts have accorded greater procection to "strong marks" than to "weak marks." To put it in another way, the courts have been willing to concede to the first user of a "strong mark" a wider range of goods upon which he ma}' place his mark to the exclusion of others. To the first user of a "weak mark" they have been inclinCd to give only a limited scope. This is especially true when the "weak mark" is being used by a multiplicity of traders for various articles. In such cases, the courts believe that the likelihood of confusion as to the origin of the goods of each trader using the mark is insignificant, and they have usually restricted trademark protection for each tradC'r to rhe specific goods which each actually manufactures and sells. France Milling v, Washburn-Crosby Co., 7F(2) 304; Pabst Brewing v. Decatur Brewing, 284 Fed, 110; Anheuser-Busch v. Budweiser Malt Products, 295 Fed. J06. "To u~e anothu l'icw of the matter, the degree of cxclus•l'cncu of appropriation accorded to 1he originator of 2 trade-name ofttn varies with the kind Qf name he originate1. If the name or mark be crulr arbitrary, strange, and fanciful, it;, more 1pecnlly and peculiarly significa11t ond suggestive of one man's goods, than when it is frequently used by m•ny and in mony differing kinds of business. Of this 'Kodak• is• famous exomple, • nd the English courts have prevented Qne from puuing forth Ko<l.k bkydes, at the suit of 1he originator of the name for a toully different article. Eiseman "· Kodak Cycle Co., H R.P.C. !Of; cf. Re Dunn 's TudcMark, 7 R.P.C. 311, and Dunlop v. Dunlop, 16 R. P.C. 12. In this court the ume influence is S<'en in Aunt Jemima Mill. Co. v. Rigney, 247 F. -t07, H9 C.C.A. 46 1, LR.A. 19!8C, 1039, where th• abovclineofcasesisquotedandrcliedon. "The phr>se 'Gold Medal' is distinctly not in the nmedassoforiginal, arbitrary, or fanciful words •s 'Kodak and 'Aunt Jcmim•'· It is a J.udaiory phrlsc, suggestive of meri t, rccQgniud by some organintion of 2uthority awarding 3 prize. It is Qn[y ol!ied 10 some pnticular busiMss or person by insistent, persistent 2dvcrtising. Washburn'.s flour lus been so •dl'trtiRd, and the proof is ample that publicity efforts have bc>rn fruit, so that Gold Medal flour means among purchasers Wa~hburn's flour. Yet it must always be remembered that there is nothing original about the name per se; it is cucdy like the phrase 'Blue Ribbon', and has been 3< extensively and variously applied. One who devises a mw, Huns:c, 'cuchlng' word to describe his wares nuy and often has by timely suit prennted otherJ from taking hi• word Qr SN of words to gild the repute of even wholly different goods (cases supu); but one who ukeJ a phrase which is the CQmn1onpbcc of sclfpnise like' 'Blue Ribbon• or 'Gold Med.I' mu•t bc coment with that 1~dal field which he hbcls with so undininctive a name. Of this Pab11, ~tc., CQ. v. Decatur, etc., Co. (C.C.A.) 284 F. !JO; and Anheuser, CIC., Co. v. Budweiser, ttc., Co. (C.C.A.) 2~l F. J06, constitute 2 perfect illustn1ion. fo the fine decision Blue Ribbon was restricted to the single product with which phintiff had associated it, while in 1he 5econd Budweiser was given a wider sphere of influmce. Jn the present case W,.hburn has made known by advertising GQ!d Medal not a line of products, nor any product of• vuied businen. but OM scpuate. well-known commodity, pure 11·heJt flour, 2nd with 1h•t he must bc content. "Result is: Washburn, by penistcnt and pushing use of a 11·ell-known and nondininctivc name has Qn (Co11ti1111ed 011 J11Ige :Z69) 267 JOSE ABAD SANTOS: AN APOTHEOSIS The selfish principle, that infirmity too of fen of great as well as of little minds, seemed never lo have reached him. It wi:is e11lire/y incompatible with the purify of his lasfr a/U/ tbe grandeur of his ambition. Ei·erything appeared to be al once exli11g11ishr1 /, when U came i11 competilio11 with his dwotio11 lo his country's welfare and glory. He was a 1110s/ failh/111 frir11d to the cause of civil liberty thro11gb011t tbe world, but he was a stilf greater friend lo truth am/ j1Hlice, - CHANCELLOR KENT speaking of Alrxandn Hamilton. Jose Ab3d Santos w:is a victim of a wanton war, of pitiless destruction. Like rhc m:iny other victims, he died in the service of his country. Unlike most of them, however, he chose his manner of dying. And unlike most of them, he could h:ive lived had he wished to. But he preferred to die; his de:ith has now become one of the glorious epics of our age. At the outbre:ik of the war, Jose Abad Santos was an Associate Justice of the Su· preme Court; he had been coniinuously serv· ing in that capacity since his appointment on June 18, 1932, interrupted only when he was drafted by President Quezon :is Secre· tary of Justice frop1 December 6, 1938 to M:iy 23, 1941. On December 24, 1941, he was appointed Chief Justice. Concurrent· ly, he perfo'rmed all the functions pertaining ro the Dep;ntment of justice, pursuant to Executive Order No. 396, issued on the s:ime date of his :ippointment. fn accor&111ce with the said order which reorganized the Executive Department of the Common· wealth, Chief Justice Abad Santos w;is also design:ited acting Secretary of Finance, Agriculture, and Commerce. President Que. zon later took him to Corregidor with Vice· President Osmefi.:i, General Basilio Valdes, Major Manuel Nieto, . and Father Pacifico Oniz. While there, Abad Santos assisted President Quezon :ind the Commonwealth officials with him in disposing of and SC· curing the funds of the Government that were deposited in the vault in Corregidor. At the inauguration of President Quezon for his second term on December 30, 1941 , Chief Justice Abad Santos administered to him in Corregidor the oath of office. To· gether with Quezon and his party, he stayed in Malinta Tunnel until February 22, 1942, when he left with them by submarine for the Visayas, arriving in Occidental Negros two days later. The presidential party shuttled from place to place as :i precaution· ary pressure, sojourning first at Talisay in the home of Governor Lizares, and from there to the Del Rosario hacienda. Then 268 ll)' ABRAHAM F. SARMIENTO they moved to a place called Buenos Aires and later to the government sugar mill at Binalbagan. Cognizant of the risk and difficulty of moving in a big group, the party split two ways, the Chief Justice staying most of the while with Vice.President Osmeila. Jose Abad Santos was in bad health :u the rime. He was suffering from asthma. Ne· verthcless, although physically unfit for strenuous duty, he did not relax in his work. He continued indefatigably to discharge the duties of his triple position, i.e., Chief Jus· rice, Secretary of Justice, and Secretary of Finance, Agriculture, and Commerce over the unoccupied territory. The departure of President Quezon for the United States via Australia in the latter part of March, 1942, multiplied fiot only the tasks of Abad San· tos but also the dangers to which he was exposed. The President offered Abad Santos the choice to go with hjm or to remain in the Philippines. Indeed, the thought of America with its promise of haven at t he time of great danger could h:ive enticed the mind of an ordinary man. But Jose Abad Santos was not the common run of men. He told President Quezon; " [ prefer to re· main, c3rry on my work here, and stay with my family." There has been !f!UCh controversy as to who was appointed by President Quezon ro represent him in the Philippines. During the occupation, not a few designing men presumptuously claimed the honor. Presi· dent Quezon is dead and his lips are for. ever closed. N onetheless, he wrote a letter dated f\.brch 17, 1942, addressed to Chief Justice Abad Santos. The letter settles the question and belies the cbims of opponun· ists. Jr reads in full: MHc h 17, lH! M y dclr Chief J unicc S3nt0" In oddi1 io11 10 your dutl<'• •~Ch ief J unicc 3nd •Cl - ing Secrc13ry of Fi11•nct, Agrk ulturt, 3nd Commerce, I hereby designue you u m y delegate with powor co • Cl on oil matters of government "'hich invoh ·c no chonge in t he fu nd•mcn1 3] policie< of m y administruion of which )'OU ne quite familiar. Whort cir· cumn •nccs .re •uch •S to precl ude previou; con1uli.1ion with me, )'OU nuy ac t on urgent ciue>1 ion1 of loc•l 3J minis1r>1ion wi1hou t Ill)' prcviou< approvJ!. In >uch cues, you .re w ""'your own bt.-n judg· nw111 >nd sound disc rciion. Wi1 h rdcuncc to the govern ment -owned corpon 1io1 u. you .re •ho •ul horiud 10 toke >uch steps as will protect 1hc intcrc1l of 1hc i;overn menl ciiher by con tinuing, curioiling or tcrmi1u 1ing d •eir operations as circumsunc.s m>y WHron t Sinccrcl yrours, (Sgd. ) i\IANUEL L QUEZON The responsibility placed upon Abad San· tos was enormous. But he proved equal to the situation. The many years of service to his credit were more than ample preparation for the trust suddenly reposed upon him. At this juncture jt is proper io digress and trace briefly his early life. IT Jose Abad Santo~ was born in San Fer. n;i,ndo, Pampanga, on February 19, 1886, the sixth of the ten children of Vicente Abad Santos and Torribia Basco. When ouly eighteen years old, he went to America as a government pensior:ado to complete his education. H e studied for sometime in the Santa Clara College at San Jose, California, and then enrolled at Northwestern Univer. sity where he obtained the degree of Bache. !or of Laws. He pursued fu rther studies in the George Washington University, where he was granted the degree of Master of Laws. Upon his return to the Philippines, he be· came on December 1, 1909, a clerk in the Executive Bureau with a salary of ?960 per annum. 0~ July 31, 1914, Jie was appointed :IS· sistant attorney of the Bureau of J ustice, after which he became attorney for the Philippine National Bank. He was rhe tech. nical adviser and ex-officio member of the first Independence Mission to the United States in 1919. Jn 1922, he served for three months as l[nder.Secretary of Justice, im. mediately after which he became the Secre· tary. Because of the cabinet crisis under rhe Wood administration, he resigned on July 17, 1923 . Jn 1926 he headed the Phil. ippine Educational Mission to America. He resumed in 1928 the Justice portfolio under Governor·General Stimson, which position he occupied until his appointment to die Supreme Court in 1932. Jose Abad Santos devoted the best years of his life to the public service. He was President of the Philippine Bar Association and of the Young Men's Christian Associa· tion, membe!' of the Abiertas House of Friendship, educational adviser of the Co· lumbian Institute, and Chairman of the Board of Trustees of the Philippine Women's University. He was actively identified with the Protestant movement of the Philippines :ind was prominent in Masonic circles. Ill And now we go back to the last days of this great man. The nature of his position necessitated communication with the c3pitals of the different provinces not yet 1mdt'r enemy control. Therefore, he had to travel by ferryboat and car through the length and breadth of Negros, Iloilo, and Cebu. On Ascension Day, April 11, 1942, while tr3· veling somewhere around Carcar, Cebu, with his son, Jose, Jr., Colonel Valeriano of the Philippine Constabulary, and some enlisted men, he and his parry met truckloads of sol· dicrs. Unaware that the enemy h:id landed in the vicinity, they stopped the trucks, think· ing all the time that the passengers therein were USAFFE soldiers. Finding out too late due the soldiers were Japanese, Jose Abad May 31, 1949 Santos and his comp:i.nions calmly went down from their cars. They were ordered to surrender. Upon inquiry, Abad Santos identified himself :i.s the Chief Justice of the Philippines. The . Japanese confiscated the pistol of Colonel Valeriano and those of the enlisted men. The captives were then taken to the Japanese concentration camp in Cebu City. For the first time, the Japanese learned that Jose Abad Santos was actually the head of the Commonwealth Government. Evidently, because of the importance of their prisoner and fearing rescue or escape, father and son were moved from one camp to another. The senior officers of the Japanese Army in Cebu, Gener:il Kawagutsi and Colonel Kawakami, "played the role of high priest and Pontius Pilate," respectively, towards Jose Abad Santos. For almost twenty days, he was subjected to gruelling and mortifying inquisition. The exact n:i.ture of the investig:i.tion is still shrouded in secrecy. Jose Abad S:intos, Jr., the only available witness w:is never present on the spot whenever his father was interrogated. One signific:i.nt remark, overheard by the son from his father on one ocnsion, PATENTS ... (Co11fi1111ed from /1agc 267) thi• record made it a good tnde-muk for just what it wu applied to, pure or nriight when flour ; to thlt commodity France mvtr 1pplied the name, but did apply it to a commercially dininct uticle 1s he hadgoodrighttodo. "Both pirties ue entitled to be protected in their 1neul businc1sc1. Funce has not nuched \Vashburn; thtrefore the buer meds no relief. \Va,hburn hu delilxutcir attached Fnnce; therefoTe 1he decree Nlow was rigl11, ~nd i~ affirmed 11.•ith co<n:· Frmce Milling co., Inc., v. \IC'.;u l1burn -CTO~by Co., lnc.,7F(2) 30'4." The trademark LIBERTY herein applied for appears to me to belong to the cl:i.ss of "weak m:i.rks." It further :i.ppears to be of the sub-class which involves employment by l number of traders for different commodities. The records of the Patent Office show that, in addition to Tan Khek Chiok, LIBERTY is registered to four other persons for as many cbsses of goods-for cornH:irch, bundry so:ip, lemon1des :ind soft drinks, and for the manufocture of bre:id. fn view of these circumst:rnces, I believe lh:it the petitioner's application should be reinstated in the active files of the Patent Office, upon the condition, however, that there be submitted in place of the original application a new one prep:ired in accordance with the new Act and with the Rules of Practice issued thereunder, the new application to be given proper priority of action, and all fees paid upon the original application to be credited to the new one. Manila, April 19, 1949. (Sgd.) CELEDON IO AGRA \I A Director of Patents May 31, 1949 revealed the m:i.n's indomitable courage and unflinching loyalty to a cause he served long and well. He said: "I cannot possibly do that bec:i.use if I do so I would be violating my oath of :i.llegi:mce to the United S.ates. What the Japanese asked him to do is still a matter of conjecture. Previously, however, he had been asked to contact General Roxas somewhere in Mindanao who up to that time had not yet surrendered. In all probability, the Japanese wanted him to induce General Roxas to sur:·ender. Apparently, the very idea was revolting to Abad Santos' conscience. There is ground to believe that this demand prompted the utterance of those brave words of defiance by a prisoner in the face of his captor. Th:it refusal cost Jose Ab:i.d S:intos his life. On or about May I, 1942, father and son were taken from Cebu to Mindan:i.o on a Japanese tr:insport which formed part of a convoy sCnt on a military expedition to Mind:i.nao. They landed at Par:ing, Cotab:ito, under fire from the USAFFE. About this b st portion of the'r foteful odyssey, Jose, Jr. relates: "We 11•ue placed logcthcr with 1he croops in OM of the landing barges. While 11·e were moving towud 1hc beach, the USAFFE forces entrtncheJ on ihe shore were firing at the landing barges. At th>t moment, I recall th•t my father wa' strnding unight and 1he Japanese •houted at him: 'Hey! you get down!' and they signalled him 10 lie low. I also told him but he had an indifferent attitude u that time. AftH landing, we hiked for about three hours through mud and heavy lugg•ge until we rc1ched 1he Con1tabubry bHracks at P.rang. After one night in Paung, in 1he afternoon 1hey placed min a truck. We wCTC no1 able to proceed farther th11 day because 1hey had not clnnd up the 01her pHU to which they were ~upposed to Ix he3ded." On or about May 4, 1942, they reached M:ilabang. For Lhree days father and son were confined in a school house. For three days, they waited for further developments, doing nothing but re:id whatever they could get hold of. The foul stroke of fate was slow in comi11g. But slow :is it was, there was th:it tragic inevitability, that powerful surge of destiny noticeable even from the dry, humid air of that summ..:r afre1 noon. At approximately two o'clock in rhc aftcrn001\ of May 7, 1942, the Jap:inese interpreter, Keiji Fukui, went to the Chief Justice to summon him to the Japancsc Headquarters. After l few minutes, Jose Abad Santos returned and called for his son. Both went into a small hut ncarby and there Lhc father stoically informed his son: "I have been condemned to be executed." Thereupon, Jose, Jr. broke clown and wept. But the father smilingly and affection:itely reproved the son: "Don't cry. Wh:it is the matter with you? Show these people th:i.t you are brave. It is a rare opportunity to die for one's country :ind not everybody h:is that chance." What brave words, wh:i.t sublime soul was thereby reve:i.led by their utterance! THE LAWYERS JOURNAL Jose Abad Santos Afcer exhorting all of his family to live up to his name, father and son said a short pr:oyer. In final parting, they embr:iced each other. And in a few minutes the son heard a volley of shots. Jose Abad Santos w:is de3d, martyr to a very worthy cause. No less than an enemy, the Japanese interpreter who witnessed the execution, admired the courage and stoical unconcern with which Jose Abad Santos confronted his end. Pointing out later to che son the father's grave, Keiji Fukui remarked: "Your fother died a glorious death." Ostensibly, Jose Ab:id Santos was executed upon the imputation of having been responsible for the destruction of the bridges and other public works in Cebu. The ch3rge was entirely unfoundcd, nay malicious. But he was never given an opportunity to disprove the accusation. In truth, the acts imputed to him had nothing to do with his duties; he w:i.s a civili3n and it is too Well-known that demolition activities more properly belonged to the military. The Filipino people-and the rest of the world-stand aghast at the horror oil such brut:i.I sadism. Caught in the cruel circumstance of a violent w:i.r, Abad Santos was tVO nre a man to have been sacrificed at the alur of human destruction. But irreplaceable and r:ire as he was, his very ace of supreme dedication has consigned him to immortality. Jose Abad S:i.ntos stands now as :i towering monument to t he idolatrous devotion of our people to the ideals of democracy, justice, and liberty: a shining obelisk that rises to the altitudes of the skies. Hum:in justice m:i.y not be able to devise a means to :avenge fully the crime committed by rhe Jap:i.nese murderers. But at this time, our concern is not so much any more to return in retribution wh:i.tever injustice may h:ive been commitred; but more, we are interested to perpetuate the things for which he died. For only in doing so m3y we hope to justify his supreme love to the Fathcrbnd. &lfishnrss and 1lr111agog11rry tuluad1·antugc of librrfy ... Frre sp1wh 11 oicd the aJiprafs of hair 1111d rnvy 11:; wrll as those of justice and rharify. A frrc press is made the i11sfru111c11f of c111mi11g, greed, and ambition, as wrll as the agency of cu/ightcued and i11depe11dc11t opinion. How shall we fireservc the supremacy of virtue and the so1111d11ess of the common judgment? How shall we butlress Democracy? The peril of this Nation is 11ot i11 any forrig11 . for! Wr, the J1cople, arc its power, ifs prril, and ifs bopc!-CttAR.LES EVANS HUGHES. 269 AN ACT TO ORDAIN AND INSTITUTE THE CIVIL CODE OF THE PHILIPPINES BOOK IV OBLIGATIONS AND CONTRACTS Titlt f.- OBUGATIONS C H APTU l GENERAL PROVISIONS Al\T. 1176. An obligation is a juridiol ncccs· sity to gi•·t, 10 do or not to do. (n) A"T. 1177. Oblii;nions uise fron1: (I) bw; (Z) ConcrJcu; (J) Quui-contncu; (.f) Acts or ominions punished by h1w; arul (I) Quasi-ddictJ. (108. h) Al\T. 1178. Obliguions dnivcd from bw arc uot prn umc<I. Only 1hosc upren\y determined ~ in this Code or in specill hws arc dcmandabk, and shall br regulated by the precepts of the bw which e1tablilhc1 them; and a1 10 whu Ins nor bun fon~n, by the pro•·isiom of this Book. ( IOllO} A1<T. 117.9. Obligations u ising from contucu ha\'c the force of hw between the contucting paniH and should be complied 9.·ith in good hith. (IO!i h) A11.T. I 180. Obliguion• derived from quas1comr:acts 5hall b<' subject to the provi•ioni of Ch•p1er I, Tide XVII, of this Book. (n) An. !!SI. Civil obligation1 ari1ing from criminal offtMtl sh•ll be govcrntd by che penal hws, subjtct to the provisions of article 2197. rnd of th~ pertinent pro•·i1ions of Chlpier ?, PreliminH)' T itle, on Human Rclniom, and of Title XVUI of this Book, rtguh1ing damagts. ( 1092J) An. 11&2. Oblii;Hions derived /rom quasi-dc1icu shall be governtd by the pro•·isions of Ch•ptcr 1, T itle XVII of t his Book, :rnd by s~cial law1. (IG9h) C11AI'Tl3ll. 2 NATURE AND EFl'ECT OF OBLIGATIONS All.T. llBl. E•·ery person obliged to givt something i1 also obliged to nke cart of it with the proper diligence of a good father of a family, unlcu the hw or the nipubtion of the paniu rtquirc1 anothtt standard of cart. (1094>) A1.T. 1184. The creditor hu :a right to the fruiu of the thing from the time the obliguion IO ddivcr it ari~s. Howc•·cr, he shall acquire no real right OVH it until 1hc umc hn b«n dtlivertd 10 him. (1091) A"T. 1181. When wh•t is to be delivered is a determinate thing, the creditor, in addition to tht right gran1ed him by arricle 1190, nuy compd 11.t debtor 10 make the ddi•·ery. If the thing is indetcrminue or generic, he may ask that the obliguion be complied wi1h at the n:penseofthedcbtor. If the obligor dd:ays, or has promise.! to deliver the nmc thing to two or mort persom who do not han 1he umc imere1c, he .1hall be rupomible for any fortuitous evtnt until he has dfrcted the delivery. ( 1096) AllT. 1186. The obligation 10 giYe a determinate 1hing includes that of ddivcring all in ac· ccuiom and acceuorics, f''tn though they m:ay not have h«n nwntioneJ. (1097a) A1.T. ll&7: If :a ~rson obliged to Jo something fails to do it, the nme sh:all be executed ot hi1 COit. This ume rule shall be observed if he dots i1 in con1nvemion {)f the tenor of che obligu ion. Fur· 270 (CONTINUED FROM LAST ISSUE] 1hcrmorc, it In• )' be dccrud that whu hu bce11 poorly tlvnc lH. unJonc. (1098) A,_T, 1188. When the obligation comins in not doing, and the obligor dots whac hu been for· bidden him, it slull 3]so be undone at his expense. ( 10'19a) 1\RT. 11 &9. Those obliged to Jdivcr or to do 5onmhi_ng incur in dd~y from t he time tl•e obligce judiciolly or tXtrajuJidally dem111Js from them the fulJ11lnwnt of their obligation. l lowe••r, the denund by the crcJitor shall 11ot b, ncceuary in order thH dehy may exist: ( 1) \Vhm the oblignion or the hw expressly so dcclarts ~ or (2) When from the nuure and the circum.1unce1 of the obligalion it appun that the de•ign.iion of the time when the 1hing i1 to be dcliv•·rcd or the service is co br rcnd~rcd wu • conirolling motive for the e.1ublishmen1 of the con· trJCI; or (l) When demmd woulJ be usdc1s, u when the ob!igor +.a1 rendered ic beyond his power to perform. In reciprocal obligotions, neither pu1y incurs in dcl.y if the 01her docs not comply or is not ready 10 comply in a prOJ"'r manner wi1h what is incumbent upon him. From chc moment one of the p•rci" fulfills his obligation, delay by 1hc ocher begin•. ( I IOOa) A1tT. 1190. T hose who in the ~dorm:ance of their obliguions arc gui11y of fraud, negligence, or dd:ay, and those who in any m•nner con tr~ ,·cnc the tenor thereof, are liable for d;im;iges. {1101) ART. 1191. Rc1ponsibilicy orising from fnud i1 J emand:able in all obligations. Any waiver of an action for (u<ure fnud i1 void. (1102a) A1.T, 1192. Respon1ibili1y ;iri~ing from negligence in the pcdorm:ance of every kind of obligatiun is abo dem:and.blc, but such liability may be regulated by the coun1, according to the circumnrnces. {l !Ol) ART. 119). The fault or negligence of the obligor consists in the omission of chat diligence which is required by the nature of the oblignion rnd correspond• with the circumstance• of the pcrO{)llS, of the time and of the place. When negligence shows bad faith, the provi1ions of ankles 1191 :and 2221, paragraph 2, shall apply. If the bw or contract docs not state the dili· xencc which is 10 be obscn·ed in 1he pcrform:anct, chu which is expected of a good fuher of a fa. mily shall be required. {1104:1) Au. 1194. Except in cases cxprculy specified by the bw. or when it ii othcrwi!C declared by nipuhtion, or when the n:11ure of 1hc obligJtion require1 the auumption of risk, no person, shall be respon1ible for those even\! which could not lot fore1ten, or which, though forcsctn, were inc•·iublc. ( 110h) A1\'r. 119!. Usurious tunsaciions .1hall be go•·crocJ by special bws. {n) ART, 1196. The receipt of the principal by the creJi1or. without rescrntion wi1h ropect to the in· tcrcst, sh.II give rise to chc pre•umption that u id inter~st ha1 been p:aid. Tht receipt of a lacer insullmenc of a debt without rescrvoiion :11 to prior installments, shall likewise raise the presumption thn such insialtmcnu h>ve been paiJ. (11101) A11·r. 1197. The creditors, after having pursued the prOj>e<ty i11 possession of t he debtor to uti1fy their claims, may exercise all the rights ond bring all chc onions of the Inter for the ume purpose, s.vc those which arc inherent in his person; th~y m:ay also impugn 1hc acn which the debtor may h:a•·e done to dcfrauJ them. {1111) A11T. 1198. Subjtct to die hws, all righu ac· quired in virtue of rn oblignion arc transmissible, if thue has been no nipuluion 10 the contrary. (11 12) Oll'l'ERENT KINDS OF OBLIGATIONS S1.<:TION 1.- Purt am/ Conditio11~t Oblig~liom A11T. 1199. E1·ery oblignion whose pcrformantt JotsnotdcpcnJ upon a fucurcoruncttt:1in evem, or up0n a past nenc unknown 10 the plriie1, is demand:ablc at once. E•·cry obligition which contain• a resolutory con· dition shall aho be demandable, without prejuJict to thceffe,tsof the happening of the .-·ent. (1113) A&T. 1200. When the debtor binds himsc:lf to P•)' when his muns permit him to do so, the obligation shall be dttmed to be one with a period, subject to the provision of 3rticle 12 17. (n) AllT. 1201. In conditional obligations, the acquisition of rights, as well 3S the utinguishmtnt orlossoftho1c alreadyacquircd, shall depcndupon the happening of the event which constitutes the condirion. ( 1114) An. 1202. When the fulfillment of the condition depend1 upon the sole will of 1he debtor, the conditional obligation slull be void. If it depends upon dunce or upon the will of J third person, the obligation shall nkc effect in conformity .,,.;th the provisions of this Code. (Ill!) ART. 1203. Impossible conditions, those contrary to good customs or public policy and chore prohibited by law •hall annul 1hc oblignion which depends upon chem, If the obligation is divisible, that p~n thereof .,.,hich is not affcctcJ by the impossible or unbwful condition sholl be valid. T he condi1ion not 10 do an impos1ible thing shall be COMiJered u not having been agreed upon. {l l lh) A11T. 1 20~. The condition that some tYtnt happen at a determinate time shall extinguish 1he oblig11ion :as soon 31 the time expires or if it has become indubinble 1hn the e\'ent will not uite phcc. {1117) ART. 1201. The condition that some event will not h•p~n at l determinate 1ime shall render the obliguign effective from 1hc moment the time indicated hn elapsed, or if i1 !us become evident that theevtntcannotoccur. If no time hu been fixed, the conJicion shdl be deemed fulfilled at such time a• may have probably b«n contemplated, beoring in mind the nature of the oblignion. (1118) An. 1206. The condition shall be dcemeJ fulfilled when the obligor Yoluntarily prevents iu fulfi\lmcnl. (1119) ART. 1207. The effects of a condition•[ obliga· tiontogivc,oncethccondition has been fulfilled, shall rcuoact co the day of the constiiucion of chc obligation. NtYtrthcleu, when the oblig~tion imposes rccipr1Kal presu1ions upon the parties. the fruits and intere1ts during the pendcncy of the condition .i;hall be dcemcJ 10 h:ave been mutually compenu ted. If 1he oblig11ion ii unibtenl, the debtor 1hall appropriate 1hc fruin anJ intcrtsts rocciveJ, unless from the nature and circumstonces of t he obligation it shoulJ be inferred that the intention of the person constituting t he u me was different. In obligations lo do anJ not 10 do, the couru shall determine, in nch case, 1he retroactive eff«t of the condition rhat Ins been compEtJ with. (1120) A,_T, 1208. The creditor moy, before the fut. fillment of the condition, bring the appropriate actions for theprtservationofhis right. The debtor may rtcOYer what during die same l ime he ha1 paid by miS!ake in c:11e of a suspcnsi\"C condition. ( 112 11) ART. 1209. When t he conditi{)n! have b.:en imposed with the intution of Suspending the effi· May JI , 1949 ncy of an obligation to give, the following rul" shall be observed in cue of the improvoment, lou or determination of the thing during the pendency of the condition: (\) If the thing i• lost without the fault of the debtor, the obligation shall beutinguished; (2) If the thing is lost through the fault of the debtor, he shall be obliged to pay damage•; it is understood thu the thing is lost when 1t pt"rishu, or goes out of commerce, or disappears in such a way thu iu uistcnce i~ unknown or it cannot be recovered; {}) When 1he thing deteriorates without the fault of the debrnr, the impairment i• to be borne by the cnditor; (") If it deteriorates through the hult oi thc debtor, the creditor may choose between the re•cission of 1he oblignion and its fulfillment, with indemnity for damages in either caJe; (j) If the thing is improved by its nuure, or by time, 1he impro•·ement shall inure to the benefit(:: t~; i:rc1sit~~pro•«d at the n _ pensc o' the debtor, he shall ha•·c no other right thrn that i;ranttd totheusufructuary, (1122) Au. 12 10. \'\'hen the conditions ha•·• fo r their purpose th~ cxtinguishmrnt of an obligation to giYe, the parties, upon the fulfillment of uid conditions, shall return touch other what they have received. In case of the loss, deterioration or impro•·cment of the thing, the provi1ions which, with respect to the debtor, are bid down in the preceding orticle shall be •pplied 10 the party who i1 bound to return. As for oblibnions to db and not to do, the provisions of the second paraguph of ariicle 1207 shall be observed al regards the effect of thcu1inguishmen1 of the obligltion. (\Ill) A11T. 1211. The po>A·er to rescind oblignions is implied in reciprocal ones, in case one of the obligon should not comply with wftat is incumbent upon him. The injured pHty nuy chOOK between the fulfillment and the rescission of 1hc obligation, >A·ith the payment of damages in either case. H e may aho seek rescission, evCn after he has chosen fulfillment, if the latter should become impossible. The court shall decree the rescinion claimed. unless there be just cause authorizing the fixing of a period. This is undcrnood to be without prejudice to the rights of 1hird persons who have acquired the thing, in accordance with ar1icln l40J and 1"08 and the Mortgage bw. (112") ART. 1211. In case both parties have commincd a breach of the obligation, the liability of the fint infoctor shall be equiubly tempered by the court!. If it cannot be dncrmincd which of the parties first violated the contract, the same shall be deemed cxtingui•hed, and each shall bear his own d•mages. (n) StcTION 2.-0b/;goli~"I with o PuioJ AJ.T. 1211. Obliguiom for whose fulfillment a day certain hu been fixed, shall be dcmandabl~ only when that day comH. Obligations with a resolutory period take effect at once, but termi .. ate upon arrival of the day certain. A day ccruin i1 understood to be that which must neccsurlly come, although it may not be known when. If the uncutainty consi1u in whether the day will come or not, the obliguion is conditional, and it shall be rcgulaud by the rules of the preceding Section. (112h) AllT. 121". In cue of los~, dnerioration or improvement of the thing before the arrival of the day certain, the rule• in article 1201 shall be obocrved. (n) Au. 121'. Anything paid or delivered before the arrival of the period, the obligor being unaware of the period or believing thn the obligation has May Ji, 1949 become due and dcmandab\c, may be recovered, with the fruiu and intcrens. (1126a) ART. 1216. Whenever in an obligation a period i1 de1ig11atcd, it is presumed to have been esubJ;,hcd for the benefit of both 1hc creditor and the debtor, unlen .from th~ twor of the ume or other ciTcumsunccs it should appear that the p<:riod has bccn cstablished in favor of one or of the other. (1127) ART. 12 17. If the obligation doc• not fix a period, but from its nature and the circumstances it cm be inferred 1hat a period wu intended, the courts may fix the duration thereof. The courts shall also fix the duration of the period when it depends upon 1hc will of the debtor. In every caJe, the courts shall determine mch period u may under the circumstmces h•ve been probably contemplated by the parties. Once fi~cd by the courts, the period cannot be changed by 1hcm. ( 112h) ART. 1211. The debtor shall lo•c e•·cry right to make use of the ·period: ( ! ) Whrn after the obligation has been contracud, he becomes insolvent, unless he gives a i;uaranty Or•ecurity for t he debt; (2) When he does not furnish to the creditor the i;uaranties or se<:uritics which he hu promised: ()) Whc.n by his own 3cu h~ hu imp•ir•d 11id guaunties or occurities after their enab!i.hmtnt, and when through a fortuitous event they di1· appear, unless he immcdiatdy gi>'es new onc1 cqu•l1 )· utisf•ctory; (") When the debtor violues any undertaking, i1\ comi<ler~tion of which the creditor •greed to the period: (!) When d1e cr~di1ur Utempn to 3bscond. {1129a) Si:cno1< l.-Altrr11i1lirr Obl1gi1l•ous /\J.T. 1219. A ptrson alternatively bound by different prenuion• •lull completely perform one of them. The creditor cannot 'be compelled to receive pH! ofoneandp•rtoftheothtrundertaking. (!Ill) ART. 1220. The right of choice belongs to the debtor, unless it has been uprcss!y granted to 1hc creditor. The debtor shall have no right to choose those prcstations which arc imponible, unlawfol or which could not have been the object of the obliguion. (Elll) Ain. 1221. The chuice •hall produce no effect except from the time it lus been communicated. ( !Ill) ART. 1222. The debtor shall lose the right of choice when among the prcstations whereby he is alternatively bound, only one is pucticabk (t!H) ART. 1221. If through the creditor's acts the debtor cannot make a choice according to the tcrm1 of 1he obliguion, the latter may rescind 1he contract with damages. (n) ART. 1224. The creditor shall ha.·c a right to indemnity for damages when, through the hulc of the debtor, all the things >A·hich arc alternatively the object of the obligation have been lost, or the compliance of the obligation ]us become impo<1iblo. The indemnity shall be fi~cd taking u a basis the value of the last thing which disappeared or that of the ocn·ice which b>t became imponible. Damage1 other than the value of the last thing or •ervice may also be awarded. ( I Illa) ART. 1221. w";: n the choice ha. been expressly given to the creditor, the obligation shall cease to be alternative from the day when the •dcction has been communicated to the debtor. Until then the responsibility of 1he debtor sh11l be governed by the following rules: ( I ) lfoneofthe1hingsfalostthroughafortuitous event, he shall perform the obligation by delivering that which the creditor should choose from amoni; the remainder, or that which remains if only one subsists; THE LA WYERS JOURNAL Civil Code (2) If the lou of one of the thini;s occur; through the fault of the debtor, the creditor may claim any of those subsiS!ing, or the price of th at which, through the fault of the former, has disappeared, with a right to damages; (l) Tfa11thtthingsarclostthroughthefault ofthedcbtor,thcchoiceby '1hccrcditorshallfall upon the price of any one of them, also with indemnity for damages. The same rules shall be applied to obligation• to do or not to do in case one, some or all of the prestations should become impossible. (11J6a) Au. 1226. When only one prenation hu been agreed upon, but the obligor m•y render another in substitution, the obligation is coiled faculutivc. The loss or deterioration of the thing intended u 2 substitute, 1hrough the negligence of 1heobligor, docs not render him liable. But once the subnitution has been made, 1hc obligor is liable for thelossofthesubHitutconaccountofhi.delay, nci;ligence or fraud. (n) Sl!i;TrON 4.-/uiu/ ,,,.J Sulidury Obfigalio'1$ ART. 1227. The concurrence of two or more creditors or of two or more debton in one and the umc obligation doc~ not imply that each one of t he former has a right to demand, or that each one of the lancr is bound to render, entire complianc( with • the prestation. There is a 50lidory liability only when the obligation c:<pre<Sly so notes, or when the law or the nature of the obligation requires solidarity. (lll7a) A11T. 1228. If from the hw, or the nature or the wording of the obligations to which the preceding article refers the contrJry docs not appcH, 1he credit or debt shall be presumed lO be di1·ided into as nuny equal ;lures a• there arc crcdi1on or debtors, the credits or dcbu being considcrc.t dininct from one another, subject to the Rules of Court go•·etning the multiplicity of suits. (I 138~) A11T. 1229. If the division is impos.ible, the right of the creditors may be prejudiced only by their collective acts, and the debt can be enforced onlybyprocecdingagain1t•llthedebton. Hone of the lauer should be imolvent, the others 1hall not be liable for his share. {109) ART. 12JO. The indivisibility of an obligation docs not neceuarily give rioc to solidarity. Nor docs solidarity of iuelf imply indivisibility. (n ) Au. 1211. Soliduity may uist although the creditors and the debtors nuy not be bound in the ume manner ond by 1he •ame periods and conditions. (1140) AMT. !Zll. Each one of ~he •olid.ry crediton may do whatever may be useful to the other!, but not •nything which m•y be prejudicial to the laua. (114la) A11T. 12ll. A solidary creditor cannot 2.,ign his rights without the consent of the others. (n) A11T. 12H. The debtor may pay any one of the so!idJry creditors; but if any demand, judicial or extrajudicial, has been made by one of them, payment should be made to him. (11"2a) A11T. 1231. Novuion, compensation, confusion or remission of the debt, made by any of the 50]idary creditors or wi1h any of the mlidary debtors,shallexiini;uishthcoblii;ation.'A•ithoutprcjudicetoCheprovisiomofarticlc IH1. The creditor who may have executed any of thc1e an., as well a. he who colkcu the debt, sha ll ~ liabletotheotheroforthe•hatein theoblii;•tion corresponding to them. (ll"l) ART. 1216. The creditor may proceed 2i;•in1t any one of the solidary debtors or some or all of them simultaneouoly. The demand made ag•inst one of them shall not be an obn~clc to those whid1 may subsequently be directed against the other" so loni; as 1he debt has not been fully collected. (llHa) Au. 1237. Payment m~de by one of the solidary debtors extinguishes the qbligation. If two or more solid.ry debtors offer to pay, 1hc creditor may choose which offer lO accept. He who made the parment may daim his codebrors only the ohare which"correspond• touch, 271 Civil Code with the imereu for 1hc p•yment alrudy made. If the payment is made before the debt is due, no interest for the intervening period may be demanded. Whrn one of the wlidary debtor~ cannot, becrnse of his insolvency, rcimbuuc his share to 1he d,·bior paying the obligation, such •lure shall be borncbyallhiscodcb1ors, inproportiontothedebt of c.1ch. (llHa) ART. 1238. Payment hr• wlidary debtor shall not entitle him to reimbursement from his codcbtors if such payment h made ofur the obliguion hu prescribed or become illegal. (n) ART. 12}9. Tho remission made by the creditor of the share which affects one of the solidary debtors docs not uleuc the lauer from his re~ ponsibility towards the codcbtors, in cue the debt had been totally paid by anyont of them before the remission wu effected. (11 46a) ART. 1240. The rcminion of the whole obligation, obtained hr one of the solidary debtors, docs not entitle him 10 reimbursement from his codcb1on. (o) ART. IHI. If the thing hu hl:cn lost or if the presution has become impossible without the fault of the solidity debtors, the oblignion shall be utinguished. If there was fault on the pHt of my one of them, all shall be responsible to 1hc creditor, for the price and the payment of damages and intcrcn, without prejudice to their action, •s•inst the guilty or negligent debtor. If through a fortuitous event, the thing is lost or the performance has become impossible after one of 1b' soliduy dtbtoU hu incurred in deby through the judicial or u1u-judicial dem•nd upon him by the neditor, the provhions of the preceding pani;raph shall apply. (11'47a) A"T. 1242. A solidary debtor may, in actions filed by 1hc creditor, avail himself of all defenses ... hich arc deri"cd from the nature of the obligation •nd of those which arc personal 10 him, or pertain to hi' own share. With respect to those which personally belong to the others, he may aviil himself thereof ooly n rtgards thot part of the debt for which ·the Inter arc respon,ible. {1148a) An. 1241. The di\'isibility or indivisibility of the things that uc the object of obligations in which there is only one debtor and only one creditor docs not alter or m'ldify the provi•ion1 of Chapter 2 of chis Title. ( 110) An. 1 lH. A joint indivUibk obliguion gives rise to indemnity for d•mages from the time anyone of the debtors doe• not comply with his undert>king. T he debtors who may hne been ready 10 fulfill their promises •h•ll not contribute to the indemnity beyond the corresponding ponion of the price of the thing or of the value of the serv ice in which the obligation co'n•i•ts. (llfO) AJ.T. 1241. For the purposes of the preceding articles, obliguiom to give dcfiniu things and those which arc not susceptible of putial performance shall be deemed to be indivi1iblc. When the obliguion has for its object the c1tecu1ion of a certain number of days of work, the accomplishment of work by metrical units, or an•logous things which hr their nature are rnsceptible uf partial performance, it 1hal! be divisible. However, even though the object or .si:rvice may be physically divisible, an obliguion i1 indivisible if so provided by law or intended by the panics. l nobligationsnoltodo,divisibilityorindivisibility shall be determined by the character of the prestaiion in each pHticular cue. ( l!Ila) SECTION 6.-0bUgativm with a Pe11al Cfau<t AllT. 1246. In obligations wid1 a pen•I d•usc, the penJl!y shall subnitute the indemnity for damage! and the payment of inuresu in case of noncoropli•nce, if 1hcre is no nipulation to the con272 trHy. Neverthde11, damages sh:all be 1uid if the oblisor rduseJ to p•y the penalty or iJ guilty of fraud in the fulfillment of the obligation. The penalty may be enforced only when it is dcmandable in accordance with the provision• of this Code. (1112a) AJ.T. 1247. The debtor cannot c1tempt himself from the performance of the obligation by paying the penalty, U\'e in the ca>c where this right has been cxprcnly rcscn·ed for him. Neither can the creditor demand the fulfillment of the obligation and the ntisfaction of the pen~lty >t the same time, unlen this risht has been clearly granted him. Howe\'er, if after the creditor has decided to require the fulfillment of the obligAtion, the performance thereof should become impouiblc without his fault, the pc1ulty may be enforced. (lHh) AJ.T. INS. Proof of :ac!Ual damages suffered by the creditor is not necesnry in order thn the penalty m•y be demanded. (n) An. 120. The judse shall equitably rcdu~c the pcnllty when the principal obligation has been p.rdy or irregululy complied wi1h by the debtor. Enn if there has been no p<'•formAnce, the penalty may also be reduced by the courts if ii is iniquitou1 or unconscion.ble. (llHA) A'-T· 12l0. The nullity of th1: penal clause doc1 not carrf with it that of the principd obligation. The nullity of the principal obligation CHries "·ith it that of the penal cbuse. ( l lSI) EXT INGUISHMENT OF OBLlGA TlONS 1211. Obligations arc u1ingui1hed: (I} By payment or performance; (2) By the Ion of the 1hing due; (l) By the condon~tion or rcminion of 1he debt; ('1) By the confusion or merger of the righu of creditor and debtor;· (I) By compensation; (6) By novation. Other c:auses of utingu,.hment of obligation!, such as annulmen1, rescinion, fulfillment of a rewlutory condition, and prescription, arc governed clsc ... ·herc in this Code. ( llSh) S~Cl'ION t.-/'a)lllfllf or J'nfvr111~11a ART. lll2. Payment rncan1 not only the deli"ery of money but also the performoncc, in :anr other manner, of an obliguion. (n) t\1tT. i21J. A debt shall not be undcmood to ha.·c been paid unlcs1 the thing or service in which the oblig:aion con!ists has been 'omplctdr delivered or rendered, al the case may be. ( 1117) ART. IH4. If the obligation has been sub· 1tantially performed in good faith, 1he obligor may recover u though there had been • nrict and complete fulfillment, less dam•ges suffered by the obligor. (n) A,_T, l2J:l. When the obligee accepts the performance, knowing its incompletenen or irregularity, ~nd without upressing any protest or objection, the obligation is deemed fully complied with. (n) AJ.T. IH6. The creditor is not bound 10 accept payment or performance by a third person who hu no interest in the fulfillment of the obligation, unlen there is a stipubtion to the contruy. Wlioc\'er pays for another may demand from the debtor what he has paid, except tint if he paid without the knowledge or against the will of the debtor, he crn recover only insofar as the payment has hl:cn benefici>l to the debtor. ( llSh) AJ.T. 12J7. Whoever pays on behalf of the debtor without the knowledge or againll the will of the huer, c.nnot compel the creditor to subrosate him in his rights, such as th0'5c arising from a mortgage, guaranty, or penalty. ( I U9A) AJ.T. IHS. Payment made by a third persnn who docs not intend to be reimbursed by 1he THE LAWYERS JOURNAL debtor is deemed to be a donation, which rcquirc1 the debtor'J consent. But the payment is in any case vaiid as to the creditor .,ho has accepted 1t. (o) AJ.T. 12!9. In obligations to give, p1yment nude by one who docs not have the free disposal of the thing d11e and capacity to alienate it sh.11 not be valid, without prciudice to the provisions of irtidc 1447 under the Title on .. Natural Obligations." (1160a) A'-T. 1260. Payment shall be mlde to the person in who1e favor the 'obligation has been conllitutcd, orhissuccessorininterc11,orlnypcrsonauthorized lo receive it. (1162a) AkT. 126l. Payment to a person who is incaplC"itatcd to :administer his propenr shall be ulid if he has kept the thing delivered, or insofar as the payment hu been hl:ncficial to him. Payment made 10 a third person shall •lso be nlidinsofarasithasrcdoundcdtothcbenefitof the creditor. Such benefit to the creditor need not be pro•·ed in the following cases: (1) lfaftcrthcpayrnent,thcthird person:acquircs ihe creditor's righu; (2) If the creditor ratifies the parment to the third person; (l) If by the creditor's conduct, the debtnr hashl:en led to believe that the third person had •Uthori.ty to receive th1: payment. (IUh) AkT. 1262. Payment made in good faith to ,ny person in po.senion of the credit 1hall rcle.se the debtor. (116'1) t\"T. 1261. Payment made to the creditor by the debtor after the latter has hl:cn judiciallr ordered to retain the debt shall not be valid. (110) ART. 1264. The debtor of • l hing CAnnot compel the creditor to receive a different one, although the latter may be of the nme value i<, or more valuable than that which is due. In obligations to do or uot to do, an act or forbcHancc cannot be substituted by another act or forbearance against the obligce's will. (1!66•) A'-T· l26l . Dation in payment, whereby property is alienated tothecreditorinsatisfactionof a debt in money, shall be governed by the law of sale1. (n) AJ.T. 1266. When the oblisation consins in the delivery of on indeterminate or generic thing, whow quality and circ umstances have nnl been stoted, the creditor cannot demand a thing of superior quality. Neither can the debtor deliver a thing of inferior quality. The purpo1e of the obligHion and other circumstances shall be taken into consider.tion ( 1167a) AJ.T. 1!67. Unless it is otherwise stipulated, 1hc extra-judicial expenses required by the payment 1hall be for the account of the debtor. With rcgud to judici•l C0'5ts, the Rules of Court shlll govern. · (1168a) AJ.T. 1268. Unless there is an express nipul•tion to th>t cffoct, the creditor cannot be compelled partially to receive the prestations in which the oblig.iion consists. Neither may the debtor be required to m•kc pani•l payments. However, when the debt is in part liquidated and in put unllquidated, the creditor may demand and the llebtor may effoct the payment of the fo rmer without waiting for the liquidation of the latter. (1169a) ART. 1269. The payment of debts in money shall be made in tl1e currency stipulated, and if it is not possible to deliver such currency, then in the currency which i• legal tender in the Philippines. The delivery of promi.rory notes payable to order, or bills of exchange or other mercantile documents shall produce the effect of payment only when they have been cashed, or when through the hult of the creditor they h>ve been impaired. In the meantime, the action derived from the original obligation shall be held in abcy>nCC. (1170) A"T. 1270. In case an uuaordinary inflation or deflation of the currency Stipulated should suMay 31, 1949 pervcnc, the value of the currency at the time of the establi•hment of the obligation shall be the basis of payment, unleu there i• m agreement to the contrary. (n) ART. 127!. Payment shall be made in the phce designated in the oblig.uion. There being no Cl<preu stipuluion and if the undertaking is to deliver a determinate thin~, the payment shall be made wherever the thing might be at the moment the obligation was constituted. In any other enc the pl.cc of payment shall be the domicile of the debtor. If the debtor changes his domicile in bad faith or after he ]u5 incurred in dehy, the additio1ul eltpen1es shall be borne by him. These provisions HC "·itl1out prejudice to 1·cnuc under the Rules of Court. ( 1!7 1a) SUBSECTION 1.-Aflfl/icalio11 of Pay1tu11/s ART. 1272. He who ha1 various debts of the 1ame kind in favor of one and the same creditor, may dedarc at the time of making the payment, to which of them the same must ' be applied. Unlc" the puties so stipulate, or when the applkation of payment is made by the party for who..: benefit the term has been constituted, 2pplicuion shall not be m•de as 10 debt$ "·hich ue not yet due, If the debtor •Cccpts from the cnditor a receipt in which 2n application of the p•yment is nude, the former cannot complain of the same, unlc51 there i• a cause for innlidating 1he contr•ct. (ll7h) ART. 1273. If the debt produce• interen, p2ymcnt of the prindp•l ,lull not be deemed to luvc been made until the intercsu have bttn covcnd (1173) ART. 127-4. When the payment cannot be applied in accordance with the preceding rules, or if applicnion can not be inferred from other circum•Unce1, the debt which is most onerom to the debtor, among tho:\C due, sh all be deemed to hal'e been utisfied. If the debu due arc of the same nHure an.! burden, the payment shall be applied to 211 of them proportio1utely .. (1174 a) 1\H. !275. The debtor m2y cede or assign hi• property to hi• creditor• in pa)'ment of his debts. Th is cession, unles• there is stipulation to the coutrny, shall only rdea>e the debtor from responsibility for the net proceeds of the thing .. signed. The agreement< which, on the effect of the ceuion, HC made bet"·een the debtor and his creditor• 1h~ll be gove rned by special laws. (117h) Sv1:1s>.CTION J.-Tr.,drr of Pdy111rnl dfl<I Cu11>ig•111lio11 ART. 1276. If the creditor to whom tender of p2yment ha. been ma.de refu.es without just cause to accept it, the debtor 1lull be rdeued from r••ponsibility by the con<ignation of the thing or sum due. Consign~tion alone shall produce the umc effect in the following cases: (l) When the creditor isabsentorunknown,or does not appear at the place of payment; (2) When he is incapaciutcd to receive the payment at the time it is due; (3) When, without jun cause, he refu~s to give a receipt: (4) When two or more person• claim the same right to collect: (5) When the tide of the obligltion has been lon. (l\76a) ART. 1277. In order dut the consignHion of the thing due may release the obligor, it musr first be announced to the pcrwns interested in the fulfillment of the obligation. The consignati<>n shall be ineffectual if it is not m•de strictly in con•Onance with the provisions which reguhte payment. (1177) M:iy 31, 1949 ART. 1278. Consignation sha!l be made by depositing the things due at1he disposal of judicial authority, before whom the tender of p•yment shall be proved, in a proper ca.e, and the announcement ofthecon•ignationinothercases. The consignation having been made, the intcrtsted p.rties shall also bc notified thercof. (ll78) ART. 1279. The expcn.es of consignation, when properly made, shall be charged against the creditor, (1179) ART. 1280. Once 1he consignation has been duly made, the debtor may a•k the judge to order the cancelhtion of the obligation. Beforcthccrcditorhasacceptcdthcconsignation, or before a judicial declaration that the consignation has been properly made, the debtor may withdraw the thing or the sum deposited, allowing the obligation to remain in force. (1180) ART. 1281. If, the consignation having been made, the creditor should authorize the debtor to withdraw the same, he shall lose every preference which he may have over 1he thing, The codebtors, guarantorJ and sureties shall be released. (118 l a) SECTION 2.-Lou of tl1c Thi11g Due ART. I 2&2. An obligation whid1 consins in the delivery of a determinate thing shall be extinguished if it should be lost or destroyed without the fault of the debtor, and before he lus incurred in delay. When by law or stipulation, the obligor is liable even for fortuitous events, the loss of the thing does not extinguish the obligation, and he shall be re•ponsible for damages. The u mc rule applies when the nature of the obligation requires the assumption of risk. (11822) ART. 128l. In an obligation to deliver a generic thing, the loss or destruction of anything of the some kind dots not cninguish the obligation. (•) ART. 1284. The courts shall determine whether, under the circumstances, the partial loss of the object of the obligation is so important a! to extingui•h the obligation, (n) ART. 1285. Whenever the thing i• Ion in the po1se.,ion of the debtor, it shall be pre•umed that thelol!"'asdue tohisfault,unlt.,there is proof to the contury, ~nd without prejudice to the provi•ions of article 1185. Thi• prernmption docs not apply in cas.c of earthquake, flood, 5torm Gr other natural calamity. ( 118h) ART. 1286. The debtor in obligations to do •hall also be rduscd when the pre1ta1ion becomes legally or physic.Uy impo1•ihle, without the fault oftheobligor. ( 11842) ART. 1287. When the •er\'ice has become so difficult as to be manifc•tly beyond the contempbtion of the parties, the obligor may also be re· leased therefrom, in whole or in part. (n) ART. ll88. When the debt of a thing ccttJin and determinate proceeds from a criminal offen.e, the debtor slul! not be exempted from the payment of its price, whatever may be the cause for the loss, unless the thing having been offered by him to the pen.on who should receive it, the lattH refused without justific;1tion to accept it. (llSf) ART. 1289. The obligHion having been extinguished by the loss of the thing, the creditor shall have all the rights of action which the debtor nuy luve againn third persons by reason of the loss. (1186) 5 1.CTION 3.-Co111fu11,,/iou or Reminio" of /b{ Debi ART. 1290. Condonation or _.remission is e.sentially gratuitous, and requires the acceptance by the ob!igor. It may be made expreHly or impliedly. One and the other kind shall be rnbject to the rul''' which go,·cm inofficious dvnations. Express rnndonativn shall, furthermore, comply with 'the fornu of donation. (1187) ART. 1291. The delivery of a private document evidencing a credit, made voluntarily by the THE LA WYERS JOURNAL Civil Code creditor to the debtor, implies the renunciation of the action which the former had against the Inter. If in order to nullify this waivu it should be claimed to be inofficious, the debtor and his hein may uphold it by proving that the delivery of the document was made in virtue of payment of the debt. (!US) ART. 1292. \Vhenever the private document in which the debt appears is found in the possession of the debtor, it >ha!! be pre1umed that the creditor delivered it voluntarily, unless the contrary is proved. (1189) 0 All«. 129). The renunciation of the principal debt 1hallextinguish the accessory obligations; but the waiver of the btter shall le2vc the former in force. (1190) ART. 1194. It is prernmcd thu the accessory obligation of pledge has been remitted when the thing pledged, after its delivery to the creditor, is found in the possession of the debtor, or of a third person who owns the thing. (ll9la) SECTION 4.--Co11fu1im1 or Mrrger of Righ/1 ART. 1295. The obligation is extinguished from the time the characters of creditor md debtor are merged in the same penon. (11922) ART, 1296. Merger which takes place in the person of the principal debtor or creditor benefits the guarantors, Confusion which takes place in the p<'UOn of any of the latter does not e1ttinguish the obligation. (1191) ART. 1297. Confusion docs not extinguish a joint obligation except as regards the share corresponding to the creditor or debtor in whom the two characters concur. (1194) SECTION 1.--Co111fl1"11ldlio11 ART. 1298. Compensation shall take place when two persons, in their own right, arc creditors 2nd debtors of each other. ( 119~) ART. 1299. In order that compensation may be proper, it is necessary: (I) That each one of the obligors be bound 1irincip>lly, and that he be at the same time a principal creditor of the other; (2) Th.r both debts consist in a sum of money, or if the things due are consumable, 1hey be of the same kind, 2nd also of the same quality if the latter hJs been ~ t ate d; (l) That the two debts be due; (4) That they be liquidated 2nd demand2blc; (f) That o.-er neither of them there be any retention or controversy, commenced by third persons 2nd communicated in due time to the debtor. (tl96) ART. 1:100. Notwith•unding the provisions of the preceding article, the guarantor may set up compcnoacion as regards what the creditor may ow• the principal debtor. (1197) ART. 1301. Compemnlon may be tot~l or partial. 'W'hen the two debts arc of the same amount, there i• a total compensation. (n) ART. 1302. The parties may agree upon the compensation of debts which arc not yet due. (n) ART. llOl. If one of the puties to a ~uit over an obligation ha• 2 cl.im for damages against the other, the former may set it off by proving hi1 right to said damages and the amount thereof. (•) ART. 1}04. When one or both debts arc rcscis•ihle or voidable, they may be compensated against each other before they arc judicially rescinded or ·2voided. (n) ART. IJOf. T he debtor who Jiu consented to the as•ignment of rights made by a creditor in f2vor of a third pl'rson, cmnot set up against the assignee the compcnsatiop which would pertain 10 him against the assignor, unless tbe aniguor was r10tified by the debtor at the time he gave his conwnt, that he res.crved his right to the compcnsation. 27) Civil Code If the creditor communic•ted the cnsion to him but the debtor did not consent thereto, the latter m>y set up the compenution of dcbu previous to the ce.,ion, but not of subsequent on••· If the usignment is nude without the knowledge of the debtor, he may set U? the compenution of all crediu prior to the umc and also hter ones until he lud knowledge of the assignment. (119h) Ao,T. \l06. Compensation t>kes place by operation of la"'• even though the debts 1my be p•Yablc n different pbces, but there shal\ be an indemnity for expenses of c~change or transporution to the pl.cc of payment. (1199•) ART. 1)07. Compensation shall not be proper when one of the debt$ arises from a depositum or from the obligations of a depositary or of a b•ilcc in commodatum. Neither e>n compcnution be set U? against a creditor who has a claim fo r suppon due by gratuitous tide, without prejudice to the provisions of p•ngnph 2 of article lll. (1!00>) ART. \JOS. Neither shall thue be compenution if one of the debts comisu in ' ci•·il Ji.bility arising from a pcn>I offense. (n) ART. 1309. If a person should h•VC against him scveul debts "·hich arc suscept ible of compensation, the rules on the •pplicnion of p>ymenu shall applr to the order of the compens•tio;m. (1201) ART. IJIO. When all 1he requisites mentioned in article 1299 are present, compenu1ion takes cff~t by operation of hw, and extinguishes both debts IO the concurrent amount, even though the creditor• and debtors arc not •WHC of the compcnudon. (IZOla) St:CTION 6.-Nor4/iQ11 ART. l JI l. Oblignion1 may be modified br: { I ) Changing their object or principal conditions; (2) Sub1tituting the pcnon of the debtor; {)) Subrogning a third person in the righu of the creditor. {120J) ART. IJl2. In order th•t an obligation may be extingui1hed by another which subuirntes 1he same, it is impcrativC that it be so declared i•l unequivoc•l terms, or that the old and new obligations be on every point incompatible with ••ch other. (120•) ART. Ill}. Novnion which consi11s in 11ubnituting • new debtor in the phce of the original one, nuy be made even without the knowledge or against the will of the I.lier, but not without the consent of the creditor. Payment by the new debtor giveJ him the rights mentioned in anicle1 IH6 •nd 12'7. {120.la) ART. 131'4. If the substitution is without the knowledge or against the will of the debtor, the new debtor's insolvency or non-fulfillment of 1he obligation 1hal\ not give rise co •ny li>bility on the part of the original debtor. (n) A~T. !Jll. The insolvency of the new debtor, who has been proposed by the original debtor and accepted by the creditor, sh>ll not revive tho action of the laucr against the original obligor, except when uid insolvency wu •lrudy existing and of public knowledge, or known to the debtor, when he dc!eg>ted his debt. (1206>) Au. 1Jl6. When the principal obligation i1 extingui,hed in consequence of a novation, •ccessory obligations m•y 1ub1ist only insofar as they may benefit third persons who did not give their consent. (1207) ART. 1}17. If the new obligation ;, void, the originalonesh>llsub1ist,unleutheparticsintended that the former 1'1nion •hould be extinguished inanyevent. {n) ART. 1Jl8. The novation i< void if the origi· nal obligation wu void, except when rnnulmcnt m•y be claimed only by the debtor, or when u· tification validnes acu which ore voidable. • (120h) ART. 1Jl9. If the original obliguion w•S 1ubjcct to• suspensive or re1olutory condition, the 274 new obligation shall be under the ume condition, unlcu it is otherwise stipulated. {n) ART. IJ20. Subrognion of a third person in the rights of the creditor is either leg•l or conventional. The former is not presumed, except in ca ... expressly mentioned in thi• Code; the l3 ttcr must be clnrly c.ublished in order thn it m•Y uke effect. ( l 209a) ART. IJZI. Com•entional rnbrog>tion of a third person requires the consent of the original pnties and of the third person. (n) ART. 1J22. It is presumed thn thue is leg•\ •ubrogation: ( I ) When a creditor pays mother creditor who is preferred, even without the debtor's knowle<lge; (2) When a third person, not interested in the oblignion, p•ys with the expreu or ucit approval of the debtor; {J) '11' hen, even without the knowledge of the debtor, a person intereucd in the fulfillment of the obligation pays, without prejudice to the effects of confusion as to the 1.iter's share. (l2 10a) ART. IJ2J. Subrogation transfers 10 the person subrogncd the credit with all the rights thereto appcruining, either •&•inst the debtor or against third 1>ersons, be they i;uat>n<ors or possessors of mongages, subjttt to stipulation in• corwcntionol subrogation. (12123) ART. I J2'*. A creditor, 10 whom p•rti>l payment has bet:n made, may exercise his righ1 for 1he ~~0ai~~3e;, ::;~ ]::bsr~~l~te~ r:cfl:~;edpl:;e t~: ~:::: of the parti•I payment of the ume credit. ( 121J) T11/,. //.-CONTRACTS Cl!APTHI I GENERAL PROVISIONS 1321. A contract is a meeting of minds between two pcr•ons whereby one binds himsdf, with respect to the other, to give something or to render some 1ervice . .(IZl•a) Ao,T. JJ26. The contr.cting parties nur c11ablish such stipul.tions, cl•usc., terms and condition• as they nuy deem convenie11t, pro•·ided they ore not contrny to bw, morals, good customs, public order, or 1>ublic policy. (lHh) Ao,T. IJ2 7. lnnomin>te contr>et< shall be regulated br the stipulations of 1he parties, by the ?<ovisions of T itles I and II of this Book, b}' 1he rules governing the most anJlogous nominate contracts, and by the customs of the place. (n) A11T. JJ28. The contract must bind both conuacting pntie•; its validity or compliance nnnot be [ef1 to the will of one of them. (l216a) A11T. IJ29. The dcterminotion of 1hc pi:rformance m•y be left to a third perso,,, "·bo1e decision sh>ll not be binding until it has been made known to both contracting p>rtics. {n) ART. IJJO. The determination shall not be obligatory if it is evidently inequiublc. Jn •uch ca<c, the court• sh•ll decide wh>t is equitable under the circum<tanas. ( n) A11T. IJJl. Controcts t•ke effect only bctwe<n the ?artic., their usigns •nd hcin, except in case where the righu and oblig>1ion1 ari1ing from the contract arc not tunsmi .. iblc by their nHure, or by •tipul>1ion or by provi•ion of law. The heir is not !iJble 0.yond the value of the property he received from the decedent. If • contract ;hould contain some 1tipubtion in f.vor of a 1hird person, he may demand in fulfillment provided he communicned his acceptmcc to the obligor before iu revontion. A mere incidennl benefit or interest of a person is not sufficient. The contracting p.rtics mu<e have ck>rly and delibentely conferred • favor upon a third person. (12l7•) A11T. JJJ2. In contr>cts creating real rigbt<, third person• who come into posseuion of 1he object of the contract He bound thereby, subject 10 the provision• of the Mong•ge bw and the Land Registration laws. (n) THE LAWYERS JOURNAL A11.T. llH. Crcditon arc protected in cues of contracts intended to defr>ud them. (n) Ao,T. lJH. Any 1hird person who induces another to violate his contract shall be liable for damages to the other contracting party. {n) A11T. \JJL Contracts arc perfected by mere consent, and from that moment the parties ore bound not only to the fulfillment of wh•t has bet:n•expre.,ly stipulated but also to all the consequences which, according to their nuure, may be in ket:ping with good h!th, uiagc md bw. (1218) . AaT. 1H6. Ru! contracU, such as dcposii, pledge and commodatum, arc not perfected until the delivery of the object of 1heobliga1ion. (n) ART. IJ}7. No one may contract in the name of another without being •uthorized by the !.ttcr, or unle5' heh .. by law a right to represent him. A contract entered into in the n>1ne of another by one who h•• no authority or legal representation, or who has acted beyond his powers, shall be unenforcnble, unless it i1 ratified, expressly or impliedly, by the person on whose behalf it hu been executed, before it is revoked by the other conirac1ing party. (12l9a) CHAPTER 2 ESSENT IAL REQUISITES OF CONTRACTS Gr1ur~/ Prol'irion ART. ! JJS. There is no contract unless the following requisites concur: (I) Consent of the contr>'1ing panics; (2) Object cert,in , .. hich is the 1ubjc(1 matter of the contract: {)) Cause of the oblig>1 ion which is e<ubHihed. {1261) ART. ]}}9. Consent is mwifcsted b}' tile mteting of the offer •nd the acceptrnce upon the thin;;: and the cause which are to constitute the contract. The offer mun be cuuin and the >ecepunce •b1olu1e. A qu>lified acccpt>nce constitute• a coun1er-offcr. Acceptance mode by letter or telegram docs not bind the offerer except frotn 1he time ic came to hi< knowledge. The contract, in such a case, is presumed to have been entered into in the plau where the offer was made. {1262a) Ao,T. 1}40. An aC<'Cptancc nuy be express or implied. (n) A11T. IHI. The per;-0" making the offrr may fix the time, place, an<l manner of ac"ptancc, all of which must be complied with. (n) ART. 1 H2. An offer m•dc through an agent is accepted from the time acceptance is communicated to him. (n) ART. IJH. An offer becomes ineffec.tive upon the death, civil interdiction,inunit)',orinsolvency of either party beforeacceptanceisconvered. (n) Ao,T. 1}44. When the offerer has allowed the offerce a cert•in period to .ccept, the offer may be withdrawn at rn}' time before acccpuncc by communicating such withdr•W•l, except when the option is founded upon a consideration, as something p>id or promised. (n) An. lHl. Unless it appears otherwise, bu1incss advertisements o( things for s.lc arc not definite offers, but mere invitations to make rn offer. (n) ART. I H6. Advertisements for bidders are simply invitnions to make proposals, and the advcrtii.cr is not bound to occcpt the highest or lowest bidder, unless the contury appears. (n) Ao,T. IH7. The follo"·ing nnnot gi\'e consent co a contract: ( I) Unemancipucd minors; (2) Insane or demented persons, and dufmutos who do not know how to write. (126J>) Ao,T. 1}48. Controcts entered into during a lucid interval are valid. Controcl>• agreed to in a state of drunkenn~-. or during ~ hypnotic spell are voidable. (n) · 1'.fay 31, 1949 An. I H9. The incapai;:ity dedored in article 1)47 i1 subject to die modific•riom determined by law, and i• un~entoo<I to be withom prejudice to spcciol di•qualificHions e•ubli•hed in the la"''· (ll64) ART. llfO. A contract where con•cnl i• gi\"cn through mi.ioke, \"iolencc, intimidation, undue influence, or fraud is voidJble. (l!6h) ART. I.Ill. In ordor thu mistake may in\"alidJte consenc, it 1hould rder IO the sub•toncc of the thing which is the object of the co1>tuct, or to those conditions "·hich ha\"e principally moved one or bmh panics to encer into 1hc contract, i\lisuke as to the identity or qu•lifica1ions of one of the plrtie< will vitiue con~nt. A simple lllis1ak" of a"ount slull give rise tn its cornction. (1!66a) AllT. lll2. \Vhen one of 1l1e par1iu is unable 10 read, or if the contract is io a bnguage not understood b}' him. and mistake nr fraud is alleged, the person enforcing the contract mun ohow that the terms ther"of have bttn fully c.~plaincd 10 the former. (n) A~T. l HJ. There i< no misukc if the party alleging it kne"" the doubt, contingency or risk affecting the object of 1hecontrJct, (n) ART. l.IH. i\lisuke on a doubtful question of la"', or on the construction or application thueof, nuy "iti:uc comcnt. (n) An. IJH. Thtre is \"iolrncc when in order tO wrest con..,nt, serious or irrcsi>tiblc force is emplo1·ed. There is in1imiduion when one of the comncting puties is compe\l~d hr a reuon•blc and wc\lgrounded fur of an imminent and gu\"e c\'il upon his perwn or property, or upon the perron or property of his spou..,, desccndanlS or ascend•nU, to give his consent. To determine the degree of the intimidation, the age, sex and condition of die person shall be borne in mind. A 1hrut to enforce one"s claim through compctenc au1hority, if the claim is jun or legal, dot-s not \"itiuc coment. (IZ67a) AllT. 1316. Violence or intimidation 5hall annul the obligation, :rlthough it may ha\"e b«n employed bra third p<"l!<ln 1•;ho did not take port in the coniract. (!Z68) ART. 1}17. There is undue influence when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice. The following circutnstances •hall be considered: die confidential, family, spiritu>I and 01hcr relations betw.,.,n the parties, or the £act that 1he person alleged to have b«n unduly influenced was suffering from mental wuknns, or w" ignorant or in financial distress. {n) An. 1)18. There is fnud when, through insidious words or machinations of one of the contracting panic•, the other is induced to entu into a contract which, without them, he would not ha\"e agrud to. (1269) A~T. lll9. Failure to disclose hct5, when there is a dut}' !O re\'nl them, as when the panics uc bound by confidential rdations, cons1i1otti fr3ud. (n) AMT. 1)60. The usud exagger.tion in trade, when the otiler pHty had an opportunity to know the hns, H C not in thrmselves fraudulent. (n) A~T. 1J6l. A mere expression of an opinion docs not signify fraud. unless made by •n expert and the other party hJS relied on 1he former"s speci>l knowledge. (n) ART. 1)62. i\liireprcr.entation by a third person dot-• not viti11t consent, unless such misrepresentation hn crutcd rnbsuntial misuke. (n) A~T. JJ,6l. i\lisreprescntuion made in good faith is not fr.udulent but ml}' conltitute error '"' A~T. 1364. In order thu fraud may make a comracl \"Oid.bk it should be ..,rious and shou ld not !ia,•e been ,•mploycd by OOth contracting pHJ\·by 31, 1949 lncid~nu\ fraud only ololigc5 rhe pUS-On employing it to P•Y d•mages. (1270) Att.T. I J6l. Simulation of a con1rae1 may ~ absolute or relative. The former nkes phce when the panics do not intend 10 be bound at all; the latter, when die parties conceal their uue agreement. (n) ART. 1366. An 3bsolu1cly simuhtcd or fictitious contr~ct is void. A rehti\"e simuh1ion. when it dot-s l\Ot prejudice a tl>lrd pennn and i• not intended for aoy purpo•c contrary 10 bw, morJls, good cu11om" public order or public policy binds the pHtics to their rral agrermcnl. (n) St.<'TlON 2.-0hjrrl of Co11/rad• AR'r. [)67. All 1hing< which ar~ not ot1uid~ 1hc com111crcc of 1nen, including furnrc 1hings, may be the objcc1 of a cmuraci. All rights which arc no1 intrrnsminiblc nlly al<o be the object uf No conir~ct may be entered into upon future inhcrilJllCC except ' in cues cxprcnly authorized l..y hw. All sen•ices which arc not contrary to law, mo· uls, good cuHoms, public order or public polic}' may likewis.. be the object of a contract. (1271>) AMT. 1368. Impossible thing• or services cannot be the object of contracts. (IZ72) A~T. il69. The object of e\"ery contr.ct mun be determinate as to its kind. The hn tint the qu~nti1y is not determinJtc shall not be on obnade to the cxisiericc of the contract, pro .. idcd it i• possible to determine the nn>e, without the need of a neVI' contract between the parties. ( ll 7J) Si:cTrON 3.-Ca11sr of Co11trac/s IJ70. In onerous contracts the cau~ is undcntood 10 be, for each contrJcting party, the prc1tation or promise of a thing or JCrvice by the other; in remuneratory ones, the scr\"icc or benefit which is remunerated; and in contracts oi pure beneficence, the ,;.ere li~rality of 1he benefactor. (IZ74) A~T 1}71. The panicular motives of the pH1ies in rniering imo a contract are differcut from the C•usc thereof. ( n) A~T. ll72. Contracts without cau~. or with unlawful cause, produce no effect whatever. The cause is unlaw ful if it is contrary to law, morals, good customs, public order or public policy. (127Ja) At1.T. ll7J. The statemrnt of a fal1c cou5C in contracts shall render tl1cm void, if it should not be proved that 1hcy were founded upon another cause which is true and hwful. {1276) Ait.T. ll74. Although tl1e cou~ is not noted in the contract, it i• pre>umed that it exisn and i1 lawful, unlcu 1hc dcbior proves the contrary. (1277) ART. lJ7L Except in cases specified by l>W, lesion or inadequacy of cause shall not invalidate a conirac1, unlen there has been fraud, misuke or undue influence. (n) C1urT1C R l FORMS OF CONTRACTS A11.T. I J76. Contracts >h~ll be obligatorr. in whatc\'Cr form they may lnve ~en entered into, provided all the essential rcquisi1cs for their validity arc present. Ho"•cvcr, when the law requires thn a contracr be in some form in order that it may be valid or enforceable, or that a contract be pro\•ed in a certain way, that requirement 15 abwlutc and indispensable. In 1uch cases, the right of the parties natcd in the followil'g article connot be txerciscd. {127h) A~T. ll77. If the bw require> • document or other speciJ\ form, a< in 1he oci. and contrJCf< cnumer•ted in the following anick 1ht con1rac1ing por1ie1 may compel each oilier to obscr\"e 1hJt form, once the contnn has becu perfcc1cd. Thi• T H E LA WYERS JOURNAL Civil Code righ1 moy be txcrci!<'d simulnneou1ly with tlie ac1ion upon the contract. (1279a) ART. 1378. The following must appear in a public documcm: (I) Acts and con1roc11 which have for their object the creation, 1ransmi1>ion, modification or cxtinguishment of rcol rights over immovable property; ules of real property or of an interc1t ther~ in arc go\"erned by article1 142), No. 2, and 1421; (2) The cession, repudiation or renunciation of hercdiury rights or of those of the conjugll l'Htnership of gain$; (.I) T he power to administer propeny, or my other power which hu for its object an acr appearing or whic'1 should appear in a public doi;umcni, or should prejudice a third person; (4) The cession of ac1ions or riglu.s proc.,.,ding from'" act appe.ring in a public document. All odier contracu where the amount involved exceeds fi•·c hundred pew• must appear in wricing, even a private one. But ulcs of gooch, chattel• or things in action arc governed by article• 1423, No. 2 and 142f. (l280a) REFORMATION OF INSTRUMENTS (n) Ait.T·. ll7,. When, there having been a mttting of the minds of the parties to a contract, their true intention isnotexpre1sed in 1hein<troment purporting to embody 1he agrttment, by reason of rpistoke, fr•ud, inequitable conduct or accident, one of the panics may uk for the reformnion of the in11rument to the end that such true intention may be exprened. If mi;takc, fraud, in~quicablc conduct, or occident has prevented a meeting of the minds of the ponies, the proper remedy is not reformation ol the instrument but annulmtnt of the contract. ART. IJSO. The principles of the general law on the reforma1ion ol Instrument! are herebv adopted insofar u they arc not in conflict with the provi•ions ol this Code. A~T. 1381. When a mutual minokc of the parties causes the failure of the instrument to di1closc their real ogrcemcnt, uid instrument may be reformed. Ait.T. ll82. If one puty wu mistaken and 1he other acted fraudulently or inequitably in such a way that the instrument docs not show their true intention, the former may ask for the reform•· tion of 1he instrument. ART. 083. When one party was misuken and the other knew or ~lie\'cd thot the instrument did not state their rul agreement, but concealed that fact from the former, the instrument m•y be reformed. Ait.T. 1)84, When through the ignor.nce, lack of 1kill, negligence or bod faith on the part of the person drafting the instrument or of the clerk or typist, the innrument docs not express the true intmtion of the panics, the coons may order that the innrumcnt be reformed. ART. IJSL If two parde• agrte upon the mortg•ge or pledge of real or personol property. but th" in11rument states 1hat the property is sold absol.ndy or with a right 0£ repurchase, reformation of 1he in5trumcnt is proper. ART. ll86. There shall be no reformation in the following cases: (l) Simple donations i11/rr 1fr01 wherein condition is imposed; (2) Wills; (J) When the real agreement is \"Oid. ART. ll87. When one ol the panics hu brought an action to enforce 1he instrument, he cannot subsequently aok for iu reformation. An. 1)88. Reformation may Ix ordered >t t he instance of either party or his succenon in interest. i( the mi•ukc was mutual: pchcrwise, upon pcti1ion of the injurtd p.r1y, or his l1'irs ond anigns. AkT. 1l 89. The procedure for 1hc reformJtion of instruments shall be governed by rules of court 10 be promu!garcd by the Suprrme Court. 275 Civil Code CHAPTEll J INTERPRETATION OF CONTRACTS AllT. 1).90. If the terms of a contract arc clnr and lca\•e no doubt upon the intention of the contracting parties, the literal meaning of its 1tipul:itions shall control. 1£ the words appear to be concruy to the n idem inttntion of the parties, the httcr shall prevail OVH the former. (1281) AllT. ll.91. In order to judge the intention of the contncting partil'I, their conttmpormeous and 1ubscquent acts sholl be principolly considereJ. (1282) AllT. tln. H owever general the tcrm1 of a contract may be, they shall not be understood to comprehend things that arc distinct and ca<es that arc different from those upon which the parties intended to agree. (1281) AllT. l}.9J. Jf some stipulation of any controct should admit of senora! mcani11gs, it shall bc undcrnood u bearing thu impon which is most adequate to render it effectual. ( 121'4) AllT. 13.94. The vuious stipulations of a contract shall bc interpreted togethu, attributing to the doubtful ones that sense which m ay result from all of them taken jointly. (12H) AllT. IJ.9S. Words which may han different significations shall be undentood in that which is most in kttping with the noture and object of the contract. (12&&) MT. 1396. The usage or cunom of the place shall bc borne in mind in the interpretation of 1he ambig\litiu of a comuct, and shall fill the ominion of stipuhtiom which are ordinuily esublished. (2n7) AllT. ll.97. The interpretation of ob1curc words or stipulations in a contract shall not fnor the party who causcd the obscurity. (1288) AllT. !HS. When it is absolutdy imponible to settle doubts by the rul!'S establi1bed in the preceding articles, and the doubu refer to incidental circumstances of a gratuitous contract, the luH transminion of rights .and interesu shall prevail. If the contract i1 onerou.,1hedoubtshall be settled in favor of the greatest reciprocity of interests. If the doubts are cut upon the principal object of the contract in such a way that it cannot be known what may have bttn the intention or will oftheparties,thccontract shallbcnulland\'oid. (128.9) AllT. l l.9.9. The principles of interpretation 1tatcd in Rule 121 of the Rules of Court shall likewi"' bc observed in the conslruction of con(•) CHAPTEll 6 RESCISSl8LE CONTRACTS ..\J.T. HOO. Contncu volidly agreed upon may bc rescinded in the cases esublishcd by law. ( 12.90) AllT. 1'401. The following contncu arc rcscissibk-: (1) Those which are entered into by guardians whenever the wards "'hom they represent suffer lesion by more than one-fourth of the value of the things which arc the object thereof; (2) ThO'le agreed upon in representation of absentees, if the latter suffer the lesion stated in the preceding number; (3) Those undertaken in fraud of creditori when the fatter cannot in any othu monncr collttt the claims due them; ('4) Thosc which refer to things under litigation, if they have bttn entered into by the defendant without the knowledge and approval of the litigants or of competent judicial authority; (f) All other contracts 1pecially declared by law to be subject to rescission. (12.91a) 276 AllT. 1'402. Paymmts made in a state of insol· vtncy for obligations to whose fulfillment the debtor could not be compelled at the time they were dfeeted, arc also rescissible. ( 12.92) ART. 140). The action for resds•ion is subsidiary; it cannot be in•tituted e~cept when the patty suffering damage lns no other legal muns !O obtain reparation for the ume. (129'4) AllT. H 0-4. Resciuion shall be only to the utmt n«:essary to cover the damages caused. (n) AllT. 140L Rcsciuion creates the obligation to return the things which were the object o( the contuct, together with their fruits, and the price with its interest; consequently, it can bc carried out only when he who demands re.cission can return whuevu he may be obliged to re1tore. Neither shall rescinion take pl•ce when the things which arc the obje<;:t of the contract arc legally in the possession of third pcnons who did not act in bad faith. In this case, indemnity for damages may be demanded from the person causing the loss. (12.9j) AllT. 1406. Rescission rderred to in Nos. 1 and 2 of article 1401 slnll not take place with respect to contracts approved by the couru. (129'1) AfT. 1407. All contracts by virtue of which the debtor alienates propeny by gratuitous tide arc presumed 10 ha\'C been entered into in fraud of creditors, when the donor did not reserve sufficient property to pay all debts contracted before the Jonuion. Alienations by onc"rouJ title arc also presumed fraudulent when m ade by persons against whom some judgment has been rendered in any instance or some writ of att achment haJ been iuued. The decision or attachment nttd not refer to the property alienated, and need not have bttn obtained by 1he party m:king the rescission. 111 addition to these presumptions, the design 10 defraud crediiors m•y be proved in any other manner rccognii:cd by the hw of evidence. (12.97a) A1"T. HOS. WhoeYet acquires in bad hith the things alienued in frzud of crediton, sball indemnify the latur for damages suffered by them on account of the olienation, whenever, due to any cause, it should be impossible for him to return them. If there arc two or more alicnalio1u, the firn acquircrshallbcliabletofine,andsoonsucccssively. (12.9&a) AllT. 140.9. The action to claim rescission mun be commenced within four yean. For persons under guardianship and for absentees, the period of four years shall not bcgin until the tcrminuion of the formor's incapacity, or until the domicile of 1he latter is known. (12.9.9) CHAPTEll 7 VOIDABLE CONTRACTS AllT. 1'410. The following contracts arc yoid· able or annullable, even though there may have bttn no damoge to the contracting parties: (1) Those where one of the parties is incapable of giving consent to a contract; (2) Those whtrc the consent is vitiated by mistake, violence, intimidation, undue influence or fraud. These contracts arc binding, unless they are annulled by a proper action in court. They are 1usceptible of ratification. (n) AllT. 1'411. The action for annulment shall be brought within four years. This period shall begin: In cases of intimid11ion, violence or undue influence, from the time the defect of the consent In care of mistake or fraud, from the time of 1he discovery of the same. And when the action refers m controcu entered into by minors or other incapacitated pcnons, from the time 1he guardianship ceases. (llOh) THE LAWYERS JOURNAL AllT. 1'412. Ratificuion extinguishes the action to annul a voidable controct. (ll0.9a) AllT. HD. Ratification may be effected upressly or tacitly. It is understood that there i1 a ncit ratification if, with knowledge of the re.son which renders the contract voidable and Juch reason having ceased, the person who has a right to invoke it should uccute an act which neceuarily implies an in1ention to waive his right. (lllla) AllT. 1414. Ratification may bc effected by the guardian of th~ incapacitated person. (n) AllT. 1'411. Ratification does not require the conformity of the contracting party who has no right to bring the action for annulment. ( 1112) AllT. HI&. Ratification cleanses the contract from all iu defecn from the moment it wn constituted. (IJU) AllT. 1'417. The action for the annulment of contracts may be instituted by all who are thereby obliged principally .or subsidiarily. H owever, persons who are capable cannot allege the incapacity of those with whom they contracted; nor can those who exerted intimidation, violence, or undue influence, or employed fraud, or caused mistake b1e their action upon these flaws of the contract. {l l02a) A1"T .. 1418. An obligation having bttn annulleJ, the controcting parties shall re11ore to each other the t hings wbich have been the subject mu1er of the contract, with their fruits, and the price with iu interest, except in ca"'s provided by law. In obligations torender•ervice,thevaluethere· of shall be 1he ba•is for damages. ( IJOJa) A1"T. lH.9. When the defect of the contract consists in the incapacity of one of the parties, the incapacitated person is not obliged to make any restitution ucept insofar as he has been bcnefiteJ by the thing or price received by him. (ll0-1 ) A1"T. 1420. Whenever the person obliged by the decree of annulment to return the thing cannot do JO becausc it has been Ion through his fau!1, hesholl return the fruits received and the value of the thing at the time of the loss, wi1h interest from the same date. (ll07a) AllT. 1'421. The action for annulment of contraCB sh~ll be extinguished when t he thing which i1 the object thereofis 1011 ihrough the fnudor fault of the person who has a right to institute the proceedings. If the right of action is based upon the incapacity of any one of the contracting parties, the loss of the thing shall not be an obstacle to tht succeu o( the action, unless said loss took place through the fraud or fault of the plaintiff. ( Ulh) AllT. 1'422. As long u one of the contr.cting p.rtics doc:s not restore what in virtue of the decree of annulment he is bound to return, the other cannot bc compelled to comply with what i1 incumbent upon him. {IJOS) CHAl'TEll 8 UNENFORCEABLE CONTRACTS (n) A1"T. l42J. The following contracts He enforceable, unless they are ratified: { l) Those entered into in the nomc of another person by one who has been given no authority or legal npre~entation, or who has acted beyond his powers; (2 ) Those that do not comply with the Statute of Frauds as set forth in this number. In the following c~KJ an agreement hereafter made shall bc unenforceable by action, unless the Jame, or some note or memorandum thereof, , be in writing, and •ub1cribedby thepartycharged,orby his agent; evidence, therefore, of 1he agreement cannot be received without the writing, or a secondary tvidenee of in contents: May 31, 1949 (<1} An •grccmem thH by its urms is not to be performed within a yr.tr from the making thereof; (b} A special promise 10 •nswcc for the debt, default, or misc.rriage of ano1hu; (c) An agreement made in consideration of m~rrbge, other thrn a mutual promise to marry; (<f) An agreement for the ulc of goods, chattels or things in action, H a price not le$! 1han five hundred pesos, unleu the buyer accept and rcccil'e port of such goods and chat1eh, or the evidences, or $0me of them, of such things in action, or pay at the time some parr of the purchase money; but "·hen a u lc is made by auction and entry is made by 1hc auctioneer in his sales book, at _the time of the ule, of the •mount rnd kin<I of property wld, terms of ulc, price, names of the purchasers and person on who•e account the ulc is made, it is a >ufficicnt mcmor3ndum; (' ) An agrecmrnt for the lusing for • longer pcrriod th•n one yeor, or f~r the u lc of rul property or of •n interest therein; (/) A repreit:ntation u to the credit of a third person. (}) Those whnc both parties arc incap•ble of giving consent 10 a contract. Al\l'. 142-1. Unauthorio:rd contracts ore gov<rncd by article 1337 and the principles of agency in Title X of this 'Book. Al\T. 1421. Contucu infringing the Sututc of Frauds, rcforred to in No. 2 of •rtide !4H, arc ratified by 1he failure to object to 1he prei.entation of oul evidence to prove the ume, or by the acceptance of benefits under 1hcm. Al\T. 1426. When • contract is enforce>ble undH the Statute of 1:r>uds, and a public doeument i~ necnury for its registration in the Registry of D..'Cds, the panics may •vail themselves of the right under article 1377. Al\T. 1427. Jn a contract where both p1rtie1 are incapable of gi\'ing coni.ent, expreu or implied r11ific>tion by the pare~t, or guardian, aJ the case m>y be, of one of the contracting parties shall give the con1uct the um• effect as if only one oi them were incapacitated. If ratification is made by the parenu or guordi>ns, 11 the case may be, of both contncting parties, the contr1ct shall be V>lidated from the incep1ion. 1428. Unenforcc;ib]e contracts "nnot be asuiled by third pcr$0nS. CttAPTI!,_ 9 VOlD OR INEX ISTENT CONTRACTSI AR1·. 1429. The following contrac!s arc inexinent and void from 1he beginning: (I) Those whose cause, object or purpoi.e is contrary to law, morih, good customs, public order or public policy; (2) Thoi.e which ore absolutely simulated or fie· titious; p) Thme whose cauK or object did not c~ist at the time of 1he transaction; {4) Thoi.e whose object i1 outside the commerce of men; (f) Those which contemplate an impossible service; (6) Those where 1he intention of the panieJ rdnive to the principal object of the contract cannot be aicertained; · (7) Those cxpreuly prohibited or dedored void by l1w. These contracts cannot be ratified. Neither can the right to set up the defense of illegali1y be waived. 1New, cxcep{ articles !4ll and 14)2 ~ lay 31, 1949 Al\T, l4JO. The action or defense for the declaration of the inexisunce of a contracc docs not prescribe. Al\T. 14}1. When the nullity proeecds from the illegality of the cause or object of the contr>Ct, and the act constitutes a criminal offense, both parties being in pariilr/iclo, they sha1\ have no action agaimt coch other, and both shall be prosecuted. Moreover, the provisions of 1he Pen•l Code relative to the dispoul of dfe'1S or instrumenll of a crime shall be •pplicablc to the things or thr priceof1hecontract. Thi1 rule .dull bc applicable when only one of the parties i1 guilty; but thr innocent one m ~)' claim wha! he has givrn, and shall not Ix: bound to comply with his promise. (DOI) Al\T. 102. If the ae1 in which the unlawful or forbidden cause comiS{! doe! not cons1i1ute • criminal offense, 1he following rules 1hall bc observed: {1) When the fault is on 1hc pan of both controcting panics, 17cither may recover whot h•• has given by virtue of the contract, or dcmrnd the perform.nee of the other's undertaking; (2) When only one of the contrac1ing panics is H fault, 11' cannot recover what he hM given by real-On of the contract, or .,k for the fulfillment of what hu been promised him. The other, who is not at fault, may demand the return of what he ha' given without any obligation to comply with his p0romisc. (006) Au. 1433. Interest paid ln excess of the interest allowed by 1he usury l1ws may be recovtred by the debtor, with interest thtreon from the dite of the payment. Au. 1434. When money is paid or proper!)' delivered for ~n illegil purpose, the comrac{ may be rcpudiHcd by one of the panics before t11c purpose hu b<:en accomplished, or before any damage hu been c1uscd to a third person. In such cue, the courts may, ;f the public inures! will 1hu1 be subserved, allow 1he party repudiHing the contract to rl'Cover the money or prop<.:rty. Al\T, 1411. Where one of 1he P•rtics to an illeg1l contract is incapable of giving conunt, 1hc couru may, if the intcren of justice $0 demands, allow recovery of money or property delivered by the incapacitated person. Al\T. 1436. When the asrcement is not illegal p~r It bu{ is merdy prohibittd, and 1hc prohibition by the law is designed for the protection of the plaintiff, he may, if public policy is thereby enhanced, recover what he has paid or delivered. Al\l'. 107. When the price of any article or commodity i• determined by statute, or by authority of law, any person p>ying any amount in excen of the maximum price allowed nuy recover such excel!. Al\T. 1411. When the hw fixes, or authorizes the fixing of the maximum number of hours of bbor, and a controct is entered into whereby a I.borer undertakes to work longer than the m;iximum thus fixed, he may demand addition•[ compensation for service rendered beyond the time limit. Al\T. 14l9. When the law i.ets, or authorio;cs the sctting of a minimum wage for laborerJ, and a contract is agreed upon by which a hboru accepts a lower wage, he shall be emitled to recover the deficiency. A&T. !HO. In cue of a divisible con1rac1, if the illegal terms can be separated from the legal ones, the Inter may be enforced. Al\T. 1441. The dcfeni.e of illeg>lity of contracts is not available to third persons whose interests arc not directly affected. Al\l', 1442. A contr>et which is the direct result of> prcvious illegal contrac1, is also void ond inexisten!. rHE LA WYERS JOURNAL Civil Code 1'11/e 111.-NA'fUKAL OBLIGATJONS 1 Al\T. 1443. Obliga!iom arc civil or natural. Civil obligations give a right of action to compel their performance. Natur1l obligations, not being based on pcuitivc law but on equity and notufll law, do nol grant a right of action to enforce their performance, but after voluntary fulfillmen t by the oblii;or, d1ey authorio:e 1he retention of what has been delivered or rendered by reason thereof. Some natural obliguions are set forth in the following articles: Al\T. 1444. When a right to sue upon a ci\'11 obligation has lapsed by extinctive prescription, tht obligor who voluntarily performs the contract can· not ucovcr what he has delivered or the value of the scrvice he hn rendered. J\l\T. IHS. When without the knowledge or •gainst the will of the debtor, a third pcrl-On pays a debt which thcobligor is not legally bound t:i pay because the action thereon ]us prescribed, but the debtor later voluntarily reimburses the third person, the obligor cannot recover what he ha• paid. J\11T. 1446. When a minor be1 .. ·ecn eightttn and twenty-one years of age who has entered into a contract without the consent of the p•ren, or i;uHdiari, after the annulment of the contract voluntarily returns the whole thing or price rece!ved, notwithstanding the f•ct that he has not been benefited thereby, there ii no right to demand the thing or price thus returned. A11l'. 1447. When a minor between eighteen and twenty-oneyearJofage,whohasenteredinto •contract without the consent of the parent or guudian, voluntarily pays a rum of money or delivers a fungible thing in fulfillment of the oblig•tion, there shall be no right to reco\•rr the ume from the obliger who has spent or consumed it in good faith. {1160a) Al\T. 1448. When, after an action 10 enforce a civil obligation has failed, the defendant volunuri ly performs the obligation, he cannot demand the return of what he bas dtli,·ered or the payment of the value of 1he service ht hu rendered. A11.l'. 1449. When a tenatc or intestate heir •·oluntarily pay1 a debt of 1he decedent exceeding the ulue of the prol"'rty which he received by will or by 1he law of intestacy fron• the estate of the deccosed, the payment is valid and cannot be rescinded by the payer. Al\T. 1-110. When a will is declared void b.:ciusc it ha. not b.:cn executed in .ccordance with the form•litics required by law, but one of tht intestate heirs, after the ~ettlement of the debu of the deccued, pays a legacy in compliance with • d•use in the defective will, the payment i1 effective and irrevoc•ble. Title lV.-ES'fOl'PEL (11) 1451. Through estoppcl an admission or repre1entationisrenderedconclusiveupon1hepc:r1-0n making if, and cannot be denied or disproved a• agaimt the.person relying thereon. Al\T, 14J2. The principles of enoppel are hereby adopted in1-0far u they arc not in conflict with the provisions of this Code, the Code of Commerce, the Rules of Court and special l.ws. Al\T. HO. E!toppcl may be ;,, pair or by deed. AJ.T. HH. When a per$0n who is not tht owner of a thing i.ells or alienates and delivcu ;t. and later the teller or grantor ac:quirts tide thereto, suchtitlcpanesbyoperat ion of lawtothcbuyer or grantee. Al\T. 1415. If a perl-On ,in representation of another sells or •lienatt• a thing, rhe former cannot subsequently set up his own 1itlc as against tht buyer or graniee. l New, txcrpt •rticlt 1447. 277 Civil Code A11.T. 1416. A lessee or • b>ilei> is estopJXd from assening cide to 1hc 1hing Je.s.:J or received, osagainsit hclessororbailor. AllT. Hl7. When in a contract between third persons concerning immovable property, one of them is misled by • person wi1h res1:w.:ct to the ownership or reil right over 1he rul cstite, the Inter is precluded frmn osserting his ltgal tide or in1cren therein,providedalltheserequisitesarepresen1: (I) There mun be frauduknt rcpreseotuion or wrongful conculmen1 of facts known to the party cscoppe-d; (2) The party precluded must intend 1hu the other •hould 3Ct upon the focu u misreprucntod; (l) The pany misled must hH·c been unawH• of tho true hcts; •nd ('4) The party defouded must h•"• ocied iu Kcordance with tho misrepresenution. ART. 14!8. Oue who Ins ollowcd onother co 01sume •ppHent ownership of personal proputy for the purpose of nuking any transfer of it, cannot, if he received tho •um for which a pledge has been constitu1cd, sec up his own title co· defeat the pledge of the property, m•de by the other to• pledgec who received the umc in good faith and forvo lue. ART. 14!~- Enoppel is effective only as between the parties chcrtto or their succtssors in inTit/r V.-TIWSTS (>J) C11APTLll I GENERAL PROVISIONS ART, 1460. A person who escablishc1 a trust is called the trustor; one in whom confidence is reposed as regard~ property for the benofit of another penon is known u the trustee; and the • peuon for whose benefit che HUit hu been created i• referred to as the beneficiary. ART. 1461. Trusts ore either expreu or implied. Express tru1ts arc cruted by chc intention of the cru1tor or of the partiu. Implied trust! come into being by opcution of law. ART. 1462. The principles of the gcneril l•w of uusu, insofar a• they arc not in conflict with this Code, the Code of Commerce, the Rules of Court ond •pccial fa,.,., arc hereby adopted. CHAPTEk 2 EXPRESS TRUSTS ART. H O. No cxpren uuns concuning an immovable or any interest therein nuy be proved byparolevidenco. ART. 1464. No particuhr words arc required forthccreocion of anexpresstrun,icbcingsufficient chot •trust is dearly intended. Af;T. 146.1. No crust shall fail because the trustee appointed declines the designation, unle<s the i;ontury should appcar ·in the instrument connituting thc trun. ART. 1466. Acceptance by the beneficiary is necesury. Nevenhe]e,., if the trun impo~s no ontrou• condition upon the beneficiary, his acccptrnce 1hall be presumed, if 1hue is no proof to the contrary. CttAl'TllR ) IMPLIED TRUSTS ART. 1467. The enumeration of the following cases of implied trun docs not exclude others established by the general law of tru1t, but the limitation hid do,.,·n in article 1462 shall be applicabk Af;T, 1468. There is an implied trust when prope-rty i• sold, and the legal esute i1 granted to oncpanybutthepriceispaidbyonothcrforthe purpose of having the beneficial interest of the property. The former is the trustee, while the lucer is the bcncficiuy. H owe\'er, if the person to whom the title is con1·eyed i• a i;hild, legitimate or illegitimate, of the one paying the price of the 278 s.lc, no trust i1 implied by law, it being disputably presumed tlut there is a gift in favor of the child. ART. 1469. There is also an implied trust when a donation is made to a person but it appears thu although the legal esutc is transmitted to 1hc donec, he nevcrthcleu iseicher to ha\'C no beneficial interestoronly•partthereof. ART. 1470. If the price of a ulc of property is loaned or paid byonepersonforthebcnefitof ano1her and the conveyance is made to the lender or r•ycr co secure 1lic pap11cnt of the debt, a trust arise1 by operation of l•w in favor of the person to whom the money is loaned or for whom it i• paid. The latter may redeem the property and compel• con1·cyancc thereof co him. AllT. 1471. When l.nd passes by 1ucce.,ion to lny prrson and he causes the legal title to be put in the name of onother, a HUit is csubli•hod by imp!icuioll of bw for the benefit of tho true A,.T, 1472. If two or more persons agree to purcho~ property and by common con~nt the legal title i1 token in the name of one of 1hem for the bendit of all, a tru<t i< created by force of low in fa1·or of the otheu in proportion to the interon of uch. ART. 147), When propcny is conveyed to a person in rcl!.nce upon his dedared intention to holditfor,ortransferictoano1hcrorthegumor, there is an implied trust in hvor of the person whose benefit is concempla1ed. A11.T. 1474. If >IL absolut,e co1weyancc of propeny is made in order to se.:urc the performance of an obligation of the grrntor toward the grantee, a trust by virtue of law is estoblishcd. If the fulfillment of the oblig•tion is offered by the grantor when it becomes due. he m•y demand the rcconvcyance of the property co him. ART. 1471. When ~ny tru1tce, guardim or other person holding a fiduciary relationship usc1 trust funds for the purch•se of property md nu.cs the conveyance to be made 10 him or to a third person, • cruse is enablished by operation of law in favor of the person i:o whom the funds belong. ART. 1476. If property is acquired through minake or fraud, the pe-rson obtaining it is, by force of law, considered a trusttc of m implied crust for 1he benefit of the person from whom the property comes. ART. 1477. An implied nu>t may be proved by oral evidence. Tit lt Vl.-SALES CHAPTER I NATURE AND FORM 01' THE CONTRACT ART. 1478. By the contract of ule one of the contr.cting parties obligate himself to tran1fcr the Gwnenhip of and to deliver a dcterminue thing, ond the other to P•Y therefor a price certain in money or its equivalent. A contract of ule may be obsolute or conditional. ( IHh) ART. 1479. The thing must be licit and the \'endor must ha>·e :a right 10 uan1fer the ownership thereof at the tim~ it is delivered. (n) ART. 1480. A thing is determinate when it i1 particularly designated or physically segregated from all others of tho same class. The requisite that a thing be determinate is •ati<fied if at the time the cont ract is entered into, the thing is capable of being made determinoce without the ncces1ity of a new or furchcr agreement between 1hc parties. {n) ART. 1481. Things having a pottntial existence may be the object of the contract of sale. The efficacy of the ulc of a mere hope or expectancy is deemed 1ubject to the condition thu tho thing will come into exincnce. The sale of• vain hope or cxpcnancy is void. (n) ART. 102. The goods which form the subject of a contract of .,]e may be either existing goods, owned or possnsed by the seller, or goods to he T HE LA WYERS JO URN AL manuhcturcd, raised, or acquirrd by the seller after the perfection of the contract of sale, in this Title called "future goods." There may be a contract of u !e of goods, whose 2cquisition by the seller depends upon a contingency which m2y or may not happt-n. {n) ART. 148). The sole owner of a thing may sell an undivided interest therein. {n) A11.T. 1484. In the case of fungible goods, there m•y be a sale of an undivided share of 2 spedfic mass, though 1hc s.elln purports to sell and the buyer to buy a definite number, weight or measure of the goods in che m•S!, and though the number, weight or measure of the goods in the m31$ is und.etermined. By $Uch a u!e the buyer becomes owner in common of such a share of them.,< as the number, weight. or measure bought burs to the number, weight or mea<ure of the mau. If the mass contains leu thon the number, weight or measure bought, the buyer become! the owner of the whole mass and the seller Is bound to make good the deficiency from goods of the same kind and qu.lity, unless a conttar)' l!itent appears. (n) ART. 1481. Things subjcc1 to a resolutory condition moy be the object of the contract of uk (•) ART. 1486. In construing a contact containing provisions chaucteristic of both the contract ofule2ndofthecontractofagencytose\1, the essential clauses of the whole instrument shall be considered. (n) Af;T. 1487. A contract for tho delivery 2t a certain price of on orticle which tho vendor in the ordinary course of his busineu manuhcturcs or procures for the general market, whether the same is on hand •t the time or not, is a contract of nlc, but if the goods arc to be manufactured specially for the cunomer and upon his spcci•l order, •nd not for the gentral market, it ~ is a contract for a piece of work. (n) A11.T. 1488. If che consideration of the conIT.Ct consists partly in money, ond partly in another thing, the tranuction shall be characteri1.ed by the manifest intention of che parties. If 1Uch intention docs not clurly appear, it 1hal1 be con1idered a barter if the value of the thing given •s a pHt of the consideration exceeds the amount of the money or its equiv•lcnt; otherwise, it is a sale. (1H6>) ART. 1489. In order that the price may be considered cortain, it shall be sufficient thot it be 10 with reference to another thing certain. or that the determination thereof b.., left to the judg" ment of a spe-cified person or persons. Should iUch pcr1on or person• be unable or unwilling to fix it, tho contract 1hall be ineffkacious, un!e~s the parties subsequently agree upon the price. If the third person or persom acted in bad faith or by minake, the cour11 may fix the price. Where such third person or person• are prevented from fixing the price or terms by fault of the seller or the buyer, the party not in fault may have 1uch remedies against the party in fault as arc allowed the ~ lle r or the buyer, u the '""' may be. (IH7a) ART. 1490. Gross inadequacy of price docs not affect a contract of sale, except as it may indicne a defect in the cons.:nt, or dut the parties really intended a donation or some other act or conuoct. (•) ART. 1491. If the price is simuloccd, the sale is void, but the act may be shown to ha"e been in reality a don•tion, or some other .ct or contract. (•) ART. H92. The price of securities, grain, liquids, ond other thing• shall also be considered certain, when the price fixed is that which the thing sold would h•ve on a definite day, or in particular exchonge or makct, or when an amount i• fixed abo"e or below the price on such da}', or in such exchange or market, provided uid amount be certain. (1448) ART. 149J. The fixing of .tho price can never be left to the discrecionofoneof the parties. H owMay 31, 1949 ever, if the price fixed by one of the p•rties .ccept· cd by the othn, the sale is perfected. (14491) AllT. 14H. Where the price e>nnot be determined in •ccord•nce with the preceding 1rticks, or in any other m•nner, the contr1ct is ineffic•· cious. However, if the thing or 1ny pHt therwf hu been deli..ered to and 1pproprined by the buyer, he must pay 1 reasonable price therefor. Whn i1 1 rosonable price is a question of f1ct dependent on the c;reum1unces of each pHticubr cue. (n) AllT. 14!H. The contract of u\e is perfected n the moment there is a meeting of minds upon the thing which is the object of the comr2ct and upon the price. From that moment, the puties may re<.:iproc1lly demand performance, subject to the provisions of the law governing the form of contracts. (lOOa) A"T· 1496. In case of a ule by auction: (l) Where goods arc put up fors1lebyauclion in Jou, uch lot is subject of 1 separne contract of nk (2) A sale by auction is perfecu'd when the ;i.uctioncer announcC5 its perfection by the fall of the h•mmer, or in other cu1tomary m1nner. Until rnch 1nnouncement is made, any bidder m1y retuct his bid; and the 1uctioneer may withdr1w the goods from ulc unless the auction hu been 1nnounced to be without restrve. (l) A right to bid may be reserved upreuly by or on behalf of the seller, unless otherwise pro· vided by law or by stipulation. (4) Where notice hu not been given that• sile by 1uction is subjcet to a right 10 bid on bch1lf of the seller, it slull not be lawful for the seller to bid himself or to employ or induce 1ny person to bid at such u !e on his beh>lf, or for the auction«•, to employ or induce any person to bid >t such ule on beh.lf of the seller or know· ingly to uke any bid from 1he 5cller or any other person employed by him. Any ule contravening this rule may be u eu ed as fuudulent by the buytr. (n) An. 14!17. The ownership of the thing •old •hall be tu11sferred to the vend~c upon the actual or constructive deliver)' thereof. (n) A11T. 1498. The panies m•y stipulate 1hu ownership in the thing shall not pus to the pur· chaser until he ha. fully p1id the price. {n) AP.T. 1499. A promise to buy 2nd 5el\ a d~· tuminue thing for a price ceruin ii rtciprocally dem1ndabk An 1ccepted unilncra\ promise to buy or sell a deurminne thing for a price ccruin is binding upon the promisor if the promise is supported by a consideration dininct from the price. (14!1•) ART. 1100. Any injury to or benefit from the thing sold, after the contract has been perfected, from the moment of the pufcetion of the con· tract to the time of deliHry, shall be governed by utides 1181 10 1181, and 1282. This rule shall apply fo the ulc of fungible things, made independently and for a single price, or without considention of their weight, number, Should fungible things be sold forapricefixe.J according to weight, number, or meuure, the risk shall not be imputed to the vendee until they hne been weighed, counud, or me.sured, •nd delivned, unlcs• the hucr ha1 incurred in dday. 04121) A.,T. 1!01. In 1 contr•ct of ulc of goods by description, or by umplc, the contnct may be rescinded if the bulk of the goods delivered do not correspond with the de1eription or the umplc, and if the contract be by sample •• well as by description, it is not sufficient thu the bulk of goods correspond with the sample if they do not also correspond with 1he dcs.cription. The buyer shall have a reasonable opportunity of comparing the bulk with the dncription or the s.mple. (n) ART. 1!02. Whenever earnest money is given in a contract of sale, it shall be considered u part May Jl, 1949 of the price and as proof of the perfection of the contract. (i'IHa) A1'.T. 1103. Subject 10 the provision1 of the Statute of Fuuds and of any other applicable natute, 1 contuct of nle may be m1de in writing, or hy word of mouth, or pntly in wri1ing and partly by word of mouth, or m1y be inferred from the conJuct of the puties. (n) Au. ll0-1. In a contr•ct of ule of persona! property the price of which is p•yable in install· ments, the vendor niay exercise 1ny of the following remedies: (I) Euct fulfillment of the obligation, should thevendeefailtopay; (2) Cancel the salt, should the vcndee's failure to P•Y cover 1wo or more installments; (l) Foreclose the chute\ mortgage on the thiugsold, ifonehHbeenconstituted,should 1he vendcc't failure 10 p•y covu two or more installments. In this case, he shall have no further action ~gainst 1he purchaser to recover any unpaid balance of · the price. Any agreement to the contrary sh11\ be void. (141'1-A.a) ART. ISOJ. The preceding arJicle shall be •Pplied to contr>eu purporting to be leases of per+ sonal property with option to buy, when the lessor has depri\'ed the lossco of the posses•ion or enjoy· ment of the0 thing. (14i'l·A·a} AkT. 1106. In the cue1 referred to in the two preceding uticlts, a stipulation that the install· menu or rcnu paid 1h~ll not be returned to the vendce or lessee sh.J I-be valid in•ofar u the ume may nor be unconscionable under the circum· stances. (n) AkT. liOi. The expenses for the execution md rcginruion of the nle shall be borne by the ven· dor, unlcn there is a stipulation to the contrary. (\Oh) An. I 108. The expropriuion of property for public u1e i• governed by special laws. (14J6) C11.-rTI!" 2 CAPACITY l'O BUY OR SELL AllT. 110?. All persons who arc authorized in this Code to obligate them'>Clves, may enter into a contract of ule, saving the modification1 con· tained in the following articles. Where nccc•u rirs ue sold and delivered to a minor or other person without C1p1City to act, he mu•t pay a reasonable price therefor. Neces· saric• are rho•e referred to in article 310. (1'417a) AllT. 1110. The husband and the wife cannot ,,.11 property to each other, netpt: (I) When a iepantion of property was agreed upon in 1hc marriage scttlm1cnt1; or (2) When there bu been • judici>l sepHation of property under 1nicle 211. (14lh) Al\T. \fl!. The following pers.ons cannot acquire by purch•sc, even at a public or judicial auction, either in person or through the media· tion of another: ( I) The guudian, the property of t he person or persons who may be under his guardianship; (2) Agenu, the property whose •dministration or ule .nuy have been intru1ted to 1hcm, unless theconsentofthcprincip•lhasbecngi\'Cu; ()) Exccuton and •dmininntors, tho property of the estne under administrations; (4) · Public officer& and cmplorces, the propertr of the State or of any subdivision thereof, or of my government owned or controlled corpoution, or institution, the administration of which has been instrusted to 1hem; this provision sh.II apply to judges and government experts who, in any m~nner whatroenr, take put in the sale; (l) Justices, judges, prosecuting 1ttorneys, clt rks of superior 1nd inferior courts, and other officers 1nd employees connected with the adminis· trationof justice, thepropeny and rights in liti· gation or levied upon an execution before the court within whose juri1diction or territory they eurci1e their respective functions; this prohibi· tie>n includes the act of acquiring by assignment THE LA WYERS JOURNAL Civil Code 30J thall apply to lawycr5, with respect to the prot>e1ty 2nd dghu which may be the object of ny i.tiguion in 'Vl'hich they may uke pnt by virtue nf il1eir profes1ion; (6) Any others ~pccially di1qualified by law. (109a) Au. 1!12. The prohibitions in the two pre· ceding articles are applicable to sales in legal re· dcmption, compromises and renunciation!. (n) \:HAPTU ) EFFECTS OF Tr.IE CONTRACT WHEN THE THING SOLD HAS BEEN LOST AP.T. llll. If 11 the time the contract of 1alt is perfected, 1he thing whieh i• the object of the contract has been entirely lost, the contract shall be without •ny effect. But if the thing should hal'e been lo1t in part only, the vendee may choo1e between withdrdwing from the contract and demanding the remaining p.rt, paying its price in proportion to the total sum agreed upon. (14601) A"T. Ill~. Where the parties purport a .ale of specific goods, and the goods· wi1hout the knowledge of the 1ellcr have peri1hed in pan or have wholly· or in a material part so deteriorated in quolity as to be 5ub11mtially chrngcd in chuacter, 1he buyer may al his option treat the sale: (I) As avoided; or (2) A1 valid in all of the ex is1ing goods or in 10 much thereof a! have not deteriorated, md as binding the buyer to pay the agreed price for the good1 in which the ownership will pass, if 1he 1ale was divisible. CHAPTEI\ 4 OBLIGATIONS OF THE VENDOR SECTION 1.-Gtntr.rJ Ptodiions A.,T, IJI J. The vendor is bound to transfer lhe ownenhip of and deliver, u wdl a. war!lnl the thing which is the object of the nit. ( l46h) A.,T. ll16. The ownership of the thing sold i• acquired by the vendce from the momen1 it is de· hHttd to him in 1ny of the ways specified in aniclcs IJl7 to 1121, or in 1ny other mrnncr sig· niiyins 1n •grccmcnt thn the posicuion is uan•fcrred from the vendor tv the vendee. (n) SECTION 2.-Dt/h•try of lbr Thmg Su/d A.,T, IJl7. The thing sold shall be un<lcr>1uoJ as ddivcred, when it is pbced in the control and po•session of 1he vcndee. (146h) Au. lJJ8. When the sale i1 nude through ~ public instrumen{, the uecution th~rcof shall be equ;valent to the delivery of the thing which is the object of the contract, if from the deed the COl!lury .lacs not appc:ar or cannot clearly be inferred. 'X'ith regud 10 movable property, iu delivery mar also ht" made by the delivery of the keys of the place t;>r depository where it is 1torcd or kept. (146h) AJ.T. 111?. The deliverr of movable propcnr m•y likewii.c be made by the mere consent or agreement of the contracting parties, if the thing sold cannot he transferred tothcposseuionofthe Hndee at tlie time of the 1ak, or if 1he l•tter alrt1dy had i1 in his posseuion for any other rnson. (1463a) Ji.1\1. 1120. Thuc may also be uadition <Wllfiluf1rn1 ponrnorium. (n) A.,T. 1121. With respect to incorporu! propcrty, the proviiions of 1he first paragraph ofar· 1iele 1118 sh•ll govern. In any other case wherein uid provisions arc not 1Pplicahle, the placing of the tides of ownership in the possession of the Yendce or the use by the vendec of hi1 rights, with the vendor's consent, d1all be understood ~· 1 deliv~ry. (1464) 279 Civil Code Ain. 1122. When goods arc ddivcred to the buyer "on ulc or return" to gi'"c the burn an option to return the goods i111teld of pa)·ing the price, the o••ncrship pu1cs to the buyer on dcli\"cry, buc he mJy revcn the ownenhip in the seller by returniog or tendering the good1 within the time fi~ed in the contru, or, if no time ha1 bun fi~ed, within a reasonable time. (n) When goods arc delivered to the buyer on ap· proval or on trial or on ntisfaction, or oihcr 1imihr terms, the ownership therein panu to the buyer: ( \) w·hen he signifies his appronl or acccevunce to tht ~llu or docs any other act adoptini: the tnn s~c tion; (l ) If l'c Jocs nor ~ ignify his approul or acccptance 10 thc seller, but rctains the goods "'ithout gi\•mg notlce of rejection, then if a time hl• l-een f11ed for the return of the goods, on the npiration of such time, and, if no time hu ~en fixed, on the o:piutioo of a ru•onable 1imr. Whn 11 a rea•onable time is a question of fact. ( o) Aa.T. ] j2). Where 1here is a comuct of ul( of specific goods, the seller may, by the turns of the cont ract, re1crvc the right of posi<J$ion or o•·ncrship in the good• until ceruin condi1 ions have been fulfilled. The right of pouession or ownership nuy be thus resen·ed notwithstanding the delivery of the goods to the buyer or to • carrier of other bailee for the purpose of tran~ misiion IO the buyer. Whore goods uc .1hipped, and by the bill of bding the goods arc dcli,,crable to the selkr or his agent,ortotheordcrof thestlterorof hi< •sent, the seller thereby reser..cs the ownerohip in the goods. But, if except for the form of tho bill of hding, the ownership •·ould have pasi<d 10 the buyer on shipment of the good•, the 1oller'• f>ropcrty in the goods shall be d«med to be onlr for the purpose of securing performance by tlw bu,.er of his oblignions under the contract. Where goods uc .1hippe1!, a~d by the bill of lading the i;oods are dcli,·crable 10 order of the buru or of his ai;cnt, but possession of the bill of lading is retained by the seller or his 1gent, the .1ellor thereby reserves a right to the pouo1ion of the goods as again!t the buyer. \li'here the seller of goods duws on 1he burcr for 1he price and tunsmits the bill of uclun~c and bill of hdins togeihcr to the buyer to i<curc acceptance or payment of the bill of exchange, the bureri1bound rn return the bill of lading if ho do(1 not honor die bill of exchange. and if he wrongfull y retains 1hc bill of bding he acquiH• no added right 1hcrebr. If, ho••e\·cr. 1hc bill of lading pro•·idcs due 1hc sooJ$ "e deliverable to the buyer or 10 the order of the bu)'er, or;, indorsed in hhnk, or 10 the buyer by the con•igncc named therein, one • ·ho purcha ~i in good fai1h, for ,·aluc, the bili of lading. or goods from the buyer "·ill obta in the ownership in the goods, althoughthebillofe:tchangeha1notb...,,,nhonorcd, provided thu such purcha<er has reeeivcd dcliwry of 1he bill of lading indorRd by the con.1ignoo named therein, or of the goods, withou1 notice of the facts makini; the transfer wrongful. (n) Aiu. l!Z'4. Unlc5s otherwi.e agrccJ , 1he good5 remain n the ,1.Cllcr"5 ri>k until the ownership therein is uan.lfcrred 10 lhc bu yer. but when the ownership ll1ucin i1 tumferrcd to the bllyer 1hc goods He at the buyer"• risk whedier aduJI dcli - \"cry hu been midc or not, except 1hat: {I) Where deli•·ery of the goods bas been made to 1hc buyer or to a bailee for the bu )'<r. in pursuance of the contract and the o .. ·ncrship in the goods hls been retained by the "'Iler merel y to secure perfonmnce by the burcr of his obtii;uions under the contr3Ct, t he goods arc at 1he buyer's risk from the 1ime of such delivery; (2) Where acrnal deli•·cry has bem delayed through the fa ult of either the buyer or icller the good1 >re a1 the risk of the party ln fault. (o) A11T. IS21. Subjec1 to the pto\"isions of this Tide, where goods arc sold by a person who is 280 not the owner tl1errof, and who d0('5 not sell them under authorit)' or wi1h the consen1 of tl1e owner, the bu)'<r acquires no beuer tide to the goods than 1hc seller had, unless the owner of die goods ii by hi, conduct procludcd from denying tlie >eller's authority 10 sell. Nothing in this Title, however, 5hall affect: (l) The provisions of any factors' acts, recording laws, or my mher provision of law enabling the apparent owner of goods to dispose of 1hem ~s if he were the uue owner thereof; (2) The ulidity of .ny contrac1 of sale under starnrory power of sale or under the order of a court of competent jurisdiction; (l ) Purcl1Jses made in a merchmt'• store, or in fain, or markets, in accordance with the Code of Commerce and ipecial hws. (n) J\llT. ll26. Where the seller of goods has a void.1blc title thereto, hue his tide hu not been voidc1I at the time of the sale, the buyer acquires • goo1I tide to the goods, provided he buys them in good faith, for value, and ••i1hout notice of the seller's defect of tide. {n) A11:r. 1127. A document of tide i" "·hich it is suted that the goods referred 10 therein will be 1!clivercd to the ~arcr, or to the order of any person named in such document is a negotiable docun1cnt uf 'tide. (n) J\ll.T. H28. A negotiable document of tide nny bcnegoiiatcd by delivery: ( \) Where by 1he Hrnu of the document the c>rricr, warehouseman. or ocher bailee i.1uing the same undcrukes to dcliHr the goods to the bearer: or (2) Where b)• the terms of the document the .: arrier, w>rehou5omln or other bailee issuing 1he u mc undcrukes to deliver the goods to the order of a specified pct1011, 3nd such person or a subsequent indonec of the <locumc11t !us indorsed it in bllnk or to the bearer. Where by the terim of a negotiable document of 1idc the good• •Tc delivcublc to bearer or where a negoti>blc docum~n! of titl~ h>s bttn indoncd in bhnk or to beai:tr . .ny holder m•y indonc the umc to hinuclf or to anr 5pecificd person, and in such osc th< document shall thcrelfter be negotiated only by the indorsement of lioch indonce. (n) A11;1·. 11 2!1. A negotiable document of tide m•Y be ncgoliucd by the indor~ment of the person 10 who1c order 1he good1 arc by the tcrm1 of the document ddiverabk Such indor,1.Cmcn1 may be in bbnk, to bearer or rn a ~ pccificd pcrso11. If indum:d to• •pccified person, ii may~ again ncgoti•tcJ by the indori.m1cnt of such person in bhnk, to bearer or io •noth~r •ptcified person. Subsequent m'gotiuion> 111ay be made in like manner. (n) A11T. 1110. If a document of title which conlli1" l n undertaking by a nrrier, •·art housenun or 01hrr bailee to dcli1·er the goods to bearer, to a •pcci fied person or order of a specified person or which contain! words of like import, has placed upon it the words "not negotiable,'' "non-negoti3ble" pr die like, .1uch document may n<l'Crthelen ~negotiated b>· the holder and i1 a negotiable documc1\I of title within the meaning of this Tide. Bot nothing in thi1 Title conuined .h.11 be construed as limiting or defining the effect upon the obligHioul of 1he carrier, •·are!iou1enun, or other bailee i .. uing a docume11t of litle or phcing thereon the •·ord• "not negotiable," " non-negotiable," or the like. (n) A11T. 1131. A document of title • ·hich i1 not in such form that i1 nn be negotiated hr ddiHry may be tra111forrcd by the liolder by delil'cry to a purchaser or dontt. A non-n(sotiable d<>eument cannot be negotiated and the indorscmcnt of $uch a document gil'CS the tr3n1ferce no addition•! right. (n) A11T. lll2. A negoti~b!c documeut of title nuy ~negotiated : ( 1) By the owner thueof; or (2) By any person to whom the posi<ssion or custody of 1he document hu been entrusted by the owner, if, by the tcrm1 of the document the THE LA WYERS JOURNAL bailee i .. uing the document underukcs 10 deli>·cr the goods io d10 order of 1he person 10 ••hom the poncssion or custody of the document has ~cn entrusted, or if at 1he time of 5uch entruning the document is in such form that it m•y be negoliued by delivery. (n) An. HH. A person to whom a negotiable document of tide has been duly ncgoti•1cd acqui rt1 1hereby: ( I ) Such title to the good, as 1he person negotiating the document to him had or had 1bi\i1y to convey to a purchaser in good faith for value rnd also such title to the goods as the penon to whose order the goods were to be delivered by the terms of the document had or had ability to convey to a purchaser in good faith for value; md (2) The direct obligation of the bailee inuing the document 10 hold pos,1.CMion of the goods for him according to the terms of the document u fully as if such bailee had conructed directly with him. (n) AlT. l lH. A person to whom a document ,,f tide has ~en uansfcrrcd, bur not neg:o1iated, acquires thereby, as against the transferor, 1he tit!~ to 1he goods, subje<:t to tht terms of any agreement with the transferor. If t be document is nol\-negotiable, such pctiOn also acquires the right to notify t he bailee who iuued the document of the transfer t hereof, and thereby to acquire the direct obligation of such bailee 10 hold possession of the goods fo r him according rn tlic ierms of the document, Prior to the notification to 1uch bailee by the tr~nsfcror or tr1n5foree of a non-negotiable document of title, the title of the umsfcrcc to the goods and the right to acquire the obligation of such bailee may be dcfu1ed by the levy of an attachment or uccution upon the goods by 3 credi1or of die tran1fcror, or br a notifin1iun to suchbailcebythctran1fcrororasub>equen1 pureha1cr from the transferor of a subsequ:nt ule of 1he goods by the transferor. (n) A11T. \j)f. Where a negotiable doc ument ol title is transferred fo r value by dcliverr, and tht indorsement of the transferor is essential for negotiation, the tran1ferec acquire! a righ1agai1nt1lic tran1feror to compel him to indorsc the docmncnl unless a contrary int<nlion appears. The negotiation shall nke effect as of ihe lime when 1he indorsement is actually made. (n) A11T. ll36. A person who for uluc iwgotiatu or tran ~ fcrs a documenl of title by indorKmtnt or delivery, including one who assigns for \•aluc a claim secured by a document of title unlcos a contrary intention appears, warranu: (I) Thu 1hc dCKumr nt ;, genuine; (2) That he hls a kg•l right rn nrgoti•it or tu111fer it; (l) That he hu koo"·kdgc of no hct •·hich would impair 1he validity or •·orth of the documen1; and (4) Thac he has a right 10 tran5fcr the 1idr to the goods and chat the goods arc merchaniable or fit for a particular purpose, whenever 1uch •·atrantics would liavc been implied if 1he contract of the pu1ies had ~en IO tran1fcr without a document of ' titlc the goods represented thereby. (n) A11T. 107. The indorscment of a document of title 1lull not make the indorser liable for any failure 011 the l)Ht of the bailee who issued tht document or previous indorsers thereof to fulfill their respecd•·c obligatiom. (n) AllT. 1138. T lie validity of the negotiation of ~ negotiable document of title is not impaired br thefacttbatthcnegotinion••a•abrcachofduty on the pu1 of the person nuking the negotiation, or by tbc facr. that the owner of 1he document wu depri\·ed of 1hc possession of the Jome by Ion, theft, fraud, accident, mi1tlke, duress, or coovcr5ion, if the person to whom the document was negotiated or a person to wholn the document was subsequently negotiated paid value therefor in good faith without notice of the brel'h of duty, or loss, thdt, fraud, accident, mi~t•ke, durc•s or eonversion. (n) May 31, 1949 AKT, lfl9. If goods are delivered to a bailee by the owner or by a person whose act in conveying the tide to them to a purchaser in good faith for nlue would bind the owner and a negotiable document of tide is iuucd for them they nnnot thereafter, while in poucssio11 of rnch bailee, be atuched by guni<hment or otherwise or be Jc,·icJ under an execution unkH tlw document be fint rnrrrndered to the bailee or iu negotiation enjoined, The bailee shall in no use be com· pelkd 10 deliver up the actual possenion of the goods until the document is 5uucndered to him or in1pounded by 1he court. (n) AKT. 1140. A cn:ditor whoie debtor is the owuer of a negotiable document of title shall be entitled to such aid from courts of appropriate jurisdiction by injunction and otherwise in attaching such document or in utisfying the claim by mcan1 thereof u i1 allowed at hw or in equity in regard to property which cannot rndily be atuchcd or levied upon by ordin>ry legal process. {o) AKT. IHI. Whether it is for the buyer to uke possenion of the goods or for the Kller to send them to the buyer is a question depending in each caie on the contract, express or implied, bet"''ttn the putics. Aput from any rnch contract, express or implied. or uugc of trade to the contnry, the place of delinry i1 the Kller's place of busineu if he hn one, and if not his residence; but in enc of a contract of ulc of specific goods, which to the knowledge of the partit1 when the contract or the ulc "'l• made wuc in some other pbce, then that place ;, the pbee of dc[i,·ery, Where by a contract of nlc the Ki!cr is bound to send the goods to the buyer, but no time for ..:nding, them is fixed, tl1e seller is bound to stnd them "'ithin a reasonable time. Where the goods at 1he time of ule arc in the pcmession of a third person. the seller lus not fulfilled his obligation to deliver to the buyer unless and until such 1hird person acknowledges to the bu)'tr that he holds 1he good• on the burer's behalf. Ikmand or tender of dcli .. cry may be trc>ted u incffectu>l unleu nude at a rusonable hour. Whu i1 a reasonable hour is a question of fac1. Unless other,..•i..: agreed, the upcn..:s of and incidental to putting the good1 into a ddivcub\e state mun be borne by the seller. (n) AJ.T. 1142. Whcre the iellcr deliven to the burer a quantity of goods less tlun he contuctrd to 1cll, the buyer may reject them, but if the buyer accepts or reuim the goods so dcfo·cred. knowing that the seller is not going to perforrn the contract in full, he must pay fo r them at the contract nu. If, howe\'er, the buyu hu used or disposc.d of the goods delivered before he knows chat the seller i1 not going 10- pcrform his contract in fu11,thebuycrshall not be liable for more dun the fair value to him of 1he goods so received. \Vhcre the seller dcli•·crs to the buyer a qunti1y of goods larger than he contucicd to sc.11, the buyer may accept the goods included in the con· traC\ and reject the rest. I( the buyer accepu the whole of the goods'° deli••ercd he must pay for tl1em JC the contract nte. \\:'hcrethesellerdeliverstochebuyerthegoods hr contracted to Kil mixed with goods of a different description not included in the contract, the buyer may accept the goods which uc in acconbncc with the contract and reject the rut. In the prcccding two paragraphs, if the subject m>1trr is indivi•ible, the buyer may reject the whole of the good•. The provisions of this uticlc uc subject to any usage of trade, special agreement, or courie of duling betw«n the parties. (n) AKT. lf4). Where, in pursuance of a contract ofn!c,thesc.!leri1authorizedorrequircdtosc.nd the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or no1, for the purpose of transmission to the burer is deemed to be a Jdivery of the goods to the buyer, JHay 31, 1949 except in the caKs provided for in utlcle 112', first, second and third paragraphs, or unless a contrary intent appcus. Unless otherwise. authorized by the buyer, the seller must make such contract "''ith the carrier on behalf of the buyer 1s may be rcuonablc, hav· ing regard to the nHure of 1he goods and the other circumsunces of the cue. If the sc.ller omit so to do, and the goods- arc Ion or damaged in course. of transit, the buyer may dcdinc to treat the delivery to the carrier as a delivery to himself, or may hold the seller responsible in. damages. Unless othcrwi!C agreed, where goods arc sent by the seller to the buyer under circumitance1 in which the seller knows or ought to know thu ii is usul to insure, the seller must give such notice to the buyer as may enable him to inrure them during their transit, and, if the 11eller fails to do so, the goods shall be deemed to be at his risk during such transit. (n) AKT. 1544. The vendor 1h21l not be bound to dcli»cr the 1hing sold, if the \'endee has not paicl him the price, or' if no IX'riod for the payment hu been fiKed in the coutract. (1466) ART. !Hf. The sclkr of goods is deemed to be an unpaid 11ellcr within the meaning of thi• Title: (!) Whci1 the whole of the price has not been paid or tendered; (2) '\X'hcn a bill of c~change or other nego· tiable instrument hu been received u conditional payment, and the condition on which ic Wal receil'cd has been brok"Cn by fenon of the dishonor of the instrument, the insolvency of the buyer, or other ... ·i!C. In articles 1145 to HH the term "scllu" includt1 an agent of the seller to who111 the bill of bding has been indoucd, or a consignor or agent who hu himself paid, or is directly rcspomib\c fo r the price, or any other person who is in the position of a seller. {n) AKT, 1146. Subjcci 10 the provision! of this Title, notwithstanding that the ownership in the goods may have puscJ to the buyer, the unpaid seller of goods, as such, hu: {I ) A lien on the goods or right to renin chem for the price while he is in possession of them; (2) In case of the insolvency of the buyer, A right of stopping the good• iu tr11111itu after he h11 parted with the possc.ssion of them; (l) A right of resale u limited by this Title; (4) A right to re•dnd the ulc u likc"·ise limited by this Tide. \X'hcre 1hc ownership in goods hu not pu~J to the bu}'H, the unpaid seller has, in addition to hi1 01hcr rcmedic1, 1 right of withholding delivery simihr to and coextensive with hio righn of lien and stoppage;., lr11mil11 "·here the ownership has paucd to the burcr. (n) AKT. !f47. Subject to the provi•iom of this Titlr, the unpaid sc.ller of go<Mls who is in po1Ks1ion of them is entitled to ret ain possc.nion <>f them until payment or tender of the price in the following cases, namely: (I) Where the goods have been i.old without my stipulation al to ncdit; (2) Where the goods have been sold on credit, but the term of credit his expired; (l) Where the burcr becomes insolvent. The seller may exercise his right of lien notwithstanding that he 11 in possession of the good• as agent or bailee for the buyer. (n) AKT. 1!48. Where an unpaid sc.ller hu mad• part dtlivery of the good1, he may exercise his right of lien on the remainder, unlen such part ddivery lus been made under such circumstances a1 to show an intent to waive the lien or right of retention. (n) AKT. 11-19. The unpaid sdkr of goods loses hi1 lien thereon: {I) When he delivers the goods to a curier or other bailee for the purpoK of transmiS$ion to the buyer "'ithout reserving the ownership in the goods or the right to the poneHion thereof; THE LA WYERS JOURNAL Civil Code (2) When the buyer or his age~t lawfully obtain po!S('uion of the goods; (l) By waivtr thtrfof. The unpaid ~lier of goods, hal'ing a lien thereon, docs not lose his lim by reason only that he has obtained judgmc11t or decree for the price of the goods. {n) · AKT. !HO. Subject to the provisions of thi• Title, when the buyer of goods is or becomes insolvent, the unpaid !Clter who has parted with the possession of t h,f goods lia1 the right of no1>ping them in lrd11Silll, that is to U)' , he may resume possc.uion of the goods at any time while they arc in transit, ~nd he will then become entitled to the same rights in reg.rd 10 the g<.><><ls H he would have had if he had ne,·er pJrtcd with the po1scHion. (n) ART. !ff]. Goods arc in tran<it "'ithin the meaning of the pr"eding article: (1) From the time whm they arc deli1·errd lo a carrier by land, water, or air, or ocher bail« for the purpose of tran•.mi11ion to the buyer, until the buyer, or his agent in that behalf, take1 delivery of them from such carrier or ocher bailee, (2) lf 1hc goods are rejected by the buyer, and the carrier or other bailee continues in po~ scuion of then>. e•·en if che seller h21 refused to receive. them back. Goods HC no longer in transit wi1hin the meaning of the preceding article: {I) If 1he buyer. vr his agent in that be· half. obuirn delivery of tl1c goods before thcir arri•·.11 at 1he appoi1ued <leuination; (2) If, after the arri•·al of the goods at the appointed deninuion, the carrier or other bailee acknowledges 10 the buyer or his J);Cllt that he holds the goods on his behalf and continues in possc1sion of them as bailee for 1he buyer or his agcm; and it is immaterial that further dcstin.1tion for the goods may ha,·e been indicated hr the buyer; (}) If the curicr or other bail« wrongfully rcfu<c5 to dcli•·er the goods to the buyer or hi• agent in that behalf. If the goods arc ddinred to a ship, freight train. truck, or airplane chartered by the buyer, it i1 a quenion depending on the circumstances of the panicubr case, whet!ier they arc in the posse11ion of the carrier as such or a• agent of the buyer. If part delivery of the goods hn been made to the buyer. or his agent in that ~half, tloe remainder of 1hc goods m~y be 1toppcd ;,I /r,111· sit11, unlcH $ueh put ddi>•fry h3s been under such circumnanccs as 10 1lrow >11 ai;rccmtnt with th~ burcr to gh·c up po1se51lo11 of the whole of iii.· goods. (n) ART. I.II!. The unp.>t! :;clkr >Olf e.,erci•e hi< right of 1toppage ;,, lr1111fi/11 either b)' obtaining •ctual possc.ssion of 1he goods or br giving notic~ of his cbim to the carrier or other bailee in "'ho:;c pos!<!ssio11 the goods arc. Such notice m•)' be given either to the !X'fSOn in ~crn•l possession ol the goods or to hi< principll. In the latter caw the notice, to be effectual, must be given at such time 2nd und,•r Juch cir~um<ta11ces th.1: the princip.•I. by 1he exercise of rc.so1ublc diligcnn, ma)' prevent a delivery to the buyer. When no1icc of stoppage;,, tr11m;111 is givf11 br tl1e seller 10 the carrier, or other bail« i11 pos.cuion of the goods. he must redeliver the goods to. or accordi11g to ihc direc1ions of. the seller. The npcMe~ ot rnch ddi\'Cry mun bc borne by tile 1eller. If, however, a negotiable document of title representing the goods has been inued by the carrier or other bailee, he sh<11l not be obliged to deli,.cr or juuified in dclinring the goods to the seller unless such document is first surrendered for cancellation. (n) AH. lllJ. Where the goods <1re of peri1hab!e nuurc, or where the idler expressly reS('rves cht right of resale in case the bu'ycr should make default, or where the buyer lu• been in default in the payment of the price for an unreasonable t im~. rn unpaid dlrr having: a right of lien or havini; stopped the goods;,, trJui;/11 m3y resdl the goods. 281 Civil Code lie shall not theroftcr be liable to the <.1rigin•l buyer upon 1hccontract of sale or for any prnfit made by such rculc, but may rec<.1ver from the buyrr damages for any l<.111 <.1ccnioned by the breach of 1he contract <.1f ulc. Whue a re•ale is nude, as aud1orized in 1his arcide, the buyer ocquiru a good title as agaimt the original buyer. It is n<.1t essential to 1he '';1lidity of a nsale th.at notice 0£ an intention w resdl the goods be gi1·cn by the ~ lfor to the original buyer. But where the right to resell is not based on the perishable nature of the gooth or upon an express provision <.1f the contract of ule, the giving or failuretogivcsuchnoticcshallberclevantinany i11ue involving the question whether 1he buyu had bttn in default for .n unreasonable time before the resale was made. h is no1 nsential to the validity of a r~sile 1hn notice of 1h.c time and place of rnch reule should be given b)' the sdlcr to the original buyer. The seller is bound t<.1 exercise rusonable cU't and judgment in making a resale, and subject to this requirement ma}' make a rculc either by public or private ulc. He cannm, however, directly or indirect!)' buy the goods. •(n) A'-T· UH. An unpaid seller luving the right of lien or having stopped the goods in tr11 .. silu, ma)" rescind the transfrr of title and rernn1e the ownership in 1he goods, where he expressly reservcd 1he right to do so in case 1he buyer should m•ke default, or where the buyer bu been in dcfoul1 in the payment of the price for an unrusonable time. The 1eller sh>ll not 1heruftcr be liable l<.1 the buyer upon the contract of ule, but nuy rec<.1ver from the buyer dam•g:es for any 1<.111 occasioned by 1he bruch of t he contr"t. The transfer of title shall not be hdd to have been rescinded by an unpoid 1eller until he ha~ manifested by notice 10 the buyer <.1r by some <.1ther O\"ertactaninttn1i<.1ntorescind. ltisnotneccls.ry that such 01·crt an 1hould be communicated to the buyer, but the givini; <.1r failure t<.1 gi,·e notice 10 the buyer of the intention 10 rescind shall be relevant in any issue involving the ques1ion whether the buyc;r had bttn in ddault for an unreasonoblc time before the right of rescission was asserted. (n) A,.T. ll ll. Subject 10 the provision <.1f 1hi1 Title, the unpaid selltr's right of lien <.1r U<.1ppage ;,. tr~mit11 is not affected by any ule, <.1r <.1ther di1position of the goods which the buytr may havr made, unless the seller h21 assented thereto. If, ho"levu, a negotiable document of tide hn been issued for goods, no seller's lien<.1r right of stoppoge ;., tro1'silu 1hall ddot the right of my purchaser for value in good foith t<.1 wh<.1m such document hos been negotiated, whether such negotiation be prior or subsequent to 1he notification 10 the carrier, or 01her boilee wh<.1 i55ued such document, of the seller's claim t<.1 a lien or right of sioppage ;,. tro,.silu. (n) AllT. 1116. The vendor · is not bound t<.I deliver tht thingmld incaoe the,·endcc: should lose the right to make use of the term as provided in article 1218. (i467a) A'-T· 1117. The vend<.1r is bound t<.1 ddiver the thing sold and ii! accessi<.1n1 Jnd accessories in the condition in which they were upon the perfection of 1he contract. _ All the fruits shall pertain to the vond•e from the day <.1n which the cont ract wu perfected. (H6h) A'-T- !Ht. In cue <.1f l<.1Ss, deteri<.1rati<.1n or improvement of the thing before its delivuy, 1he rules in anicle 120!J shall be observed, the ''cndor being c<.1nsidcred the debtor. An. HS,. T he obligation t<.1 deliver 1he thins •<.1ld include1 thH of pl.acing in the control of the vcndec all th>t h mentioned in the contract, in conformity with the following rulc1: If the sale <.1f rtal esute should be made with .a ltattment of its arta, at the rue of a ceruin price for a unic of measure or number, the vendor 1hall be obliged to deliver to the vendtt, if the latter should demand ir, oil that may have 282 been stated in the cuntun; but, should thi1 be not possible, che vcndtt may choose between a proportional reducti<.1n<.1f1heprice3nd the rc'Cission<.1f rhe contracr, provided that, in the latter cue, the lack in the area be not less than <.1ne-rcn1h of th.at stated. The same shall be done, even when the area i• the ume, if any part of the immovable is not of rhc quJlity specified in the contract. T he rescission, in this case, shall only uke phce •t che will <.1f the vendee, whm the inferior 1•,]ue ..,f the thing ~<.1ld exceeds one-tenth of the pric~ agreed upon. Nevenheless, if the vendee w<.1uld not have bought the immovable had he kn<.1wn of its smaller aru or inferior quality, he ma}" rescind the u le. ( 146!Ja) A'-T. 1160. If, in the case of lhe preceding article, lhere in a greater area or numbcr in 1he immo,·able thm that stated in the c<.1ntract, the vcndcc nuy accept 1hc arn included in the contract and reject tho! rest. If he accepu the whole area, he must pay for the umc at the c<.1ntract Ute. (1470a) A'-T. 1)"61. The provisions of the tw<.1 pr~ceding articles shall apply wjuJicial sales. (n) A'-T· 1S62 . . In the sale of real ouu, made for a lump sum and n<.1t at the rate of a ceruin sum for a unit of measure or number, there shall be no incrcase or decrease of the price, although there be a greater or less area <.1r number chon thn suttd in the cohtratt. • T he same rule >hall be applied when two <.1r m<.1rc immo\"abks are sold for a •inglc price; but if, besides memi<.1ning the b<.lundaries, which;, indispensable in every c<.1nveyance <.1f real csrar•. its arn or number sh<.1uld be designated in the contr.acc, the venJor shall be bound w dcliver a!l that is included "'ithin said boundHics, even " 'hen it e~ceeds the area ur numbH specified in the contract; and, should he not be able t<.I do •o, he shall suffer a reductiou in the price, in proportion to what is lacking in .the area or number, unless the contract is rescinded because the vendee d..,es not accede t<.1 che failure to deliver what h•s been 01ipulitcd. (147 1) A'-T. 1)"0. The actions arising from .rtid~• I l 19 Jnd 1162 shall pre5cribc "' si,; months, counted from the day ol delivery. ( 147h) An. 1164. If the oome thiog shou\J ha''" been sold 1<.1 different veudces, the ownership slull be transferred to the person who may have l i1·st taken po5>ession therc<.1f in good faith, if it should Ix m<.1vable property. Should it be immovable pr<.1pnty, the ownership shall belong t<.1 the perwn acquirins ic who in good f•ith iirst recorded it in the Regisuy of l'r<.1pert y. Sh<.1u\J there be n<.1 inscription, the ownenhip •hall pertain 10 the pers<.1n who in good faith was first in the possession; Jnd, in the absence 1hcroof, t<.1 the person who presents the olde5t title, pr<.1vided there is i;ood faith. (!47J) SLCTION J.-CcmJiliom a11J W~rr~11/ill A,.T, 1161. Where the oblignion of either pHty t<.1 a con1ran of ule is subject to any c<.1nJition which ••not performed, such pnty mar refuse 1<.1 proceed •••ith the c<.1ntract or he may waive performance of the co,,dition. If the other party has promised that the c<.10Jition •hould happen or be performed, such first mentioned p>tlY may also treat the nonperformance <.1f the conditi<.111 as a breach <.1f warranty. Where the ownership in the t hing has not pos>cd, the buy~r may ucat the fulfillment by the. sell~r of hi> obligation 10 deliver the same as described and as warranted exprtuly or by implicnion in the contr•Cl of sale as a condition of the <.1bligui<.1n of the buyer 1<.1 perform his promise 1<.1 accept and pay for the thing. (n) A'-T· 1166. An)' affirmati<.1n oi fact or •"Y pr<.1mise by the seller rehting to 1he thing is Jll express warra111y if the natural tendency ..,f such THE LA WYERS JOURNAL affirmation or promise is t<.1 induce the buru to purchase the .. me, and if the buyer purchases the thing rdyins thereon. No affirmation of the 1•a!ue ..,f the thins. nor any stotemcnt purporting to be a stuement ..,f the seller's opinion only, shall be construed as a warranty, unless the seller made such affirmation or sutemcnt as an expert and it wa~ relied upan by the buyer. (n) A,.T. lS67. In a contract of sale, unless a co111r.1ry intention oppc.rs, there is: { I) An implied ,war ranty on the pan of the seller that he has a right to sell the thing at the time when t he ownership is t<.I pa~s, and that the buyer shall from that time have and enjoy the legal and peaceful posscssi<.1n <.1f the t hing; (2) An implied warranty that 1he thing shall be free from any hidden foults or defects, or any charge or encumbrance n<.1t ded>red w known to the buyer. This article shall n<.1t, however, be held to render liable• sheriff, aucti<.1n«r, mortgage, pledgee, <.1r <.1ther person profcs~ing to .ell by virtue of authority in fact or law, for the uk of a thins in which a third person has a legal or cquitJblc interest. (n) ART. 1~68. Evicti<.11> •hall take place wheoevcr by a final judginent based on a right prior to the sale <.1t on act imputable 1<.1 the vendor, the nnde<: ;, deprived of the wh<.1le or of a put ..,f the thing purchased. The vond<.1r •hall an1wer for 1hc eviction even th<.1ugh n<.1lhini; ha• been soid in the contract on the ,ubject. The comracring p~nic 1, h<.1wevcr, roay incrca,., dimini1h, <.1r >npprc>> this lcgol oblig•tion of the ,·end<.>r. (1"7!a) AR·r. 1 16~ . i"h•· vc11dcc need not appe•l from the decision in order that the vendor mly become liable for e•·iction. (n) A'-T· 1170. When ~ dvcr"" posse>1ion had b«n commenced before the sale but 1he prescriptive period i• completed after the tr;1nsler, the vend<.1r shall not be liable for eviction. (n) An. 1!71. If the pr<.1peny is sold for n<.1llp>)"mcnt of uxeJ due and not made known co the vendce before the sale, the nnd<.1r is liable for eviction. (n) A'-T· lj72. The judgment debtor is al•o respon1ible for eviction in judicial salts, unleu it is otherwise decreed in the 1udgmen1. (n) A'-T· lj7J. Any stipulatiml exempting: the vendor from the oblig•tion to answer for eviction shall be viod, if he octcd in bad foith. A'-T· 1174. If the vcndcc lus renounced the right t<.1 warranty in ca"' of evicti<.1n, ""d eviction should uke place, the \"endor shall only pay the value which the thing sold had at the time of the eviction. Should the vendee have made the waiver with kn<.1wledgc of the risks of e\·iction and urnmed its con!<'quences, the vendor shall not be li>ble. {1477) A,.T. ]j7$. When 1he ""irr•nty hu bccn agreed upon <.If nothing ha• been stipuhted on this point, in °casc evicti<.1n occurs, 1he 1 ·cndce shall have the right to demand <.1f the vclldor! (\) The return of the v~luc which the rhing wld had at the time of the evicti<.1n, be it greater or less than the price of the ule; (2) The income or fruits, if he has been ordered t<.I deliver them !<.I the pony who won the suit ag1imt him; (J) The costs <.1f the suit which caused the eviction, and, in a proper cue, th<.1se of the suit brought •gainst the •·endor for the warranty; (4) T he expcn.cs of the contract, if the vendtt bu paid them; (j) The domages and interests. and ornamental expenses, if the sole WJS made in bad faith. (1478) A,.T. IJ76. Should the vendee lose, by rnson <.1fthe eviction, a part<.1fthe.1hing soldof 1uch importance, in re!.tion ro the " 'h<.1lc, thit he w<.1uld May }l, 1949 not h>ve bought it "'Idiom s.1id pJrl, h~ m•Y demand d•c rescission of the comr•ct; but with the obligation to return the thing without other encumbrancn thm tho1e which it had when he acquired it. He may eurcis.c thi• righr of action, inl!c3d of enforcing the \'cndor'• liability for C\'ictlon. The ume rule shall be observed when rwo or more thingl h•ve been jointly sold for a 111mp !\Im, or for a s.cpante price for each of them, if it should clearly appear that the nndee would not hn·c purchued 011e without the other. {"479a) ART. 1177. The WHrJnty cannot be euforud until a final judgment hu b«n rendered, whueb)' the vcndtt lose• the d1ing JCquired or a put thereof. { 1~80) ART. ll7S. The vendor shall not be obliged ro make j!OOd the proper warranty, unless he is iummoned in the suit for niction at the insunce c.f die •·endec. ( 148h) A.,T. 1179. The ddendant ''cndee iha\l ask, within the time fixed in the Rules of Co11rt for answering the complaint, thu the vendor be made a co-dde11dan-. (148h) A.,T. \HO. If the immo1•ablc sold sho11ld be encumbered with any non-apparent burden or servitude, not mentioned in the agrttmcnt, of such a 1uture that it mun be presumed thn the \'endee would not have acq11ired it had he been aw>re thereof, he may aok for the rcscis.ion of the contr~ct, unless he should prefer the appropriate indemnity. Neither right can be exercised if the nonappar~nt burden or SC'l'Vilude is recorded in the Regi.cry of Property, unless there i1 an expreu warranty thn 1hc thing is frtt from all burdens and encumbrances. Within 011e yur, to be comp111ed from the cucution of 1hc deed, the •·endee may bring the action for res.:ission, or sue for damages. One yur lnving davsed, he may only bring an action for damages within m equal period, to he counted from the date on which he discovered the burden or servitude. (148h) SvB5ECTION 2.-Warranl)' Against Hitldrn DtftclJ o/ or Enrnmbra11cts Upoir thr Thi11g So/,/ A"T- 11a1. The vendor shall be responsible for w>rranty against 1hc hidden dtf...:ts which the thing sold Ill>)' have, should they render it unfir for the use for which it i• i11tcnded, or should they diminish iu fitnen for such use 10 such an u:1ent rhH , had the vendtt been aw>re thereof, he wo11ld not have acquired it or would have given a lower price for it; but uid vendor Jhall not be mswenble fo r patent defects or those which may be visible, or for thO!e which arc not vi1iblc if the vendee is an npen who, by reason of his trade or profession, should lnve known them. (1484a) Au. 11&2. In a sale of goo<h, there i1 an implied warrant)' or condition as to the quality or fitness of the goods, as follows: {l) Wheu do<' buyer, cxprc»I)' or by impli· cation, nukes known to the seller the particular purpose for which the goods are required, and it ippears thn the buyer rdin on the seller'• skill or judgment (whether he be the grower or minufacturer or not), there is an implkd warranty thit the goods shall be rnsonably fit for 1uch pur,,...; (2) Where the goods arc bought by description from a seller who de.I~ in goods of that description {whether he be the grower or manufacturer or not), there is an implied warranty that the good> sh.11 be of merchanublc quality. (n) ART. I!&). In the ca1e of conc ract of sale of a specified article under its p~tcnt or other trade nJme, thuc is no wHr~nty n 10 i11 fitn.:ss for any particula r purpose, 11nle>1 there is a stipulation to the contrary. (n) An. I 184. An implied warramy or condition as IOthe quality or fi1nen for a particul.r purpo~e may be anncged by the unge of trade. { n) A11T. 1181. In the case of a comract of sale by nmple, if the s'cller is a dealer in goods of that kind, there is an implied warranty that the goods shall be free from any d.-fect rendering them unmerchantable which would not be apparenc on rca· sonJblc examination of the umplc. {n) Au. !lilt>.. The vendor i~ responsible to the vendec for any hidden hulu or defects in the thing sold, even though he was not aware thereof. This provision •hall not apply if the contrary has been stipulated, and the vendor was not awH• of the hidden faults "or defeeu in the thing sold. (1'481) A"T· 087. In the casc1 of articles 1181 . ll 82, l!a-4, 1.181 and llH6. the vendee nuy el"t between withdrawing from the conlroct and demanding • proportionate reduction of the price, with damages ineithercase. (IH6a) Au. 1188. If the thing 1old should be lost in co11scquence of the hidden hults, and the vendor was aware of them, he sh•ll bear 1he 1011, and ,hall be obliged to return the price and refund the expenses of the conuact,.with damagu. If he was not •Ware of them, he shall only return 1he price and internt thereon, and reimburse the expenses of the con tract which the vcndce might have paid. (1487a) Au. 1!89. If the d 1ing sold lud any hidden fault at the time of the uk, and should tbtreaftcr bc lost by a fortuirnus e1·cntorthrough the fault of the vcndee, the l•tter may dcma11d of the vendor the price which he paid, less the value which the thing had when it Wal lost. If the vendor acted in bad faith, he 1hall pay damages 10 the vmdtt. (148h) A"T· 1190. The preceding articles of this Sub· scction shall be applicable to judicial sales n;cept tint the judgment debtor shall not be liable for damagei. {140a) A"T· 1191. Actions arising from the provisions of the preceding ten articles shall be barred after Civil Code six momhs, from the deli1·crr of the thing solJ. (1490) Au. ll 92. If two or more aimmls are sold together, whether for a lump sum or for a separate price for each of them, 1he redhibitory defect of one shall only give risc toits rcdhibition,and not 1hat of the others; unless it should appear that the vendec would not have purchased the sound animal or animals without the defecti1·e one. The latter case shall be presumed when a tum, yoke, pair, or set is bought, even if a separ1tc price has been fixca for uch one of the animal• composing the same. {1491) ART. ll9l. The provisions of the preceding u1icle with respect to the sale of animals shall in like man11cr be ap1•lic,blc to the u lc of other things. (H92) A11T. I S9~. T here i• no warranty against hidden de fccn of •nimals sold at fairi or 3t public auctions, or of livestock sold as condemned. ( 1"9h) Al\T, 119~ . The sale of animals suffering from cont>gious disuse.! shall be void. A contract of sale of animals 1h.ll also be 1·oid if the u1e or service fo r which they arc acquired hubcenstatcdinthecontract,andthcyarefound to be unfit therefor. (149'4a) A11T: 1196. If the hidden dtfcct of animal., even in eJse a professional inspection hu been made, •hou1d be of such a nature that n:pcrt knowledge i1 not sufficient 10 discover it, the defect sha ll be considered as redhibitoq·. lfot if the vtterinari>n, through ignounce or bJd faith, should fail to discover or di1c\05e it. he shall be liable for damages. ( 149q A.,T, 1197. T he redhibitory action, based on the faulu or defecu of animals, must be brought within forty days from the date of their delivery to the vendee. ' This action can only be exercised with respect to faulu and defects which are determined by law or by local cusiom1. (1496•) AH. 1!98. If the animal shou ld die within three diys after its purchase, the vendor shall be 1i>ble, if the dis.case which caused the death uisttd at the time of the contract. (!07a) A11T. 1199. If the sale be rescinded, the •inm3I 1h•ll be returned in the condition in which it wa1 sold and delivered, the vend«: being answerable for any injury due to his nc11!igence, and not arising from the redhihitory fault or defect. ( 1"9&) AR'r. 1600. In the sale of animil1 with redhibitory defects, the vendee shall enjoy the right mentioned in article 1187; but he must make use thereof within the same period which has been fixed for the exercise of the redhibitory action. {1499) AllT. 160!. The form of sale of large cattle shall be governed by special laws. (n) (To be Continued) PARACALE LUMBER & HARDWARE C ·O., INC. Lumber Dealer & Building Contractor Office & Yard: 600-611 Soler St., Manila • CHUA UONG CHAN TONG President Manager M:q' 31, 1949 THE LAWYERS JOURNAL 283 THE BENCH AND BAR IN NEWS DEAN JORGE BOCOBO Most men must w:iit until they arc dead to get the proper r~ cognitio11 of their greatness or the just reward of their labors. In the Philippines there are those who may not even get :i fair appraiSJI of their work :ind their death will only hasten t he obliteration of the little impression they would c:iuse upon their generation. Either of these may be the fare of Dean Jorge Bocobo, monlist, scholar, publicist, thinker, educator. For as :m outstanding moral crusader, his preachings have been like the "small voice of one crying in the wilderness" made feeble by the indifference of his time and unacceptable because of his principles that run counter• to the standards of his gcner:i.tion. But the saving grace has been that he has always <onfincd himself within the realms of reason refusing as he does to complicate his views through sophistry. For that matter, whenever he denounces a wrong or fights an injustice, he is brutally frank and uncompromising. As a thinker, ironically, Dean Bocobo is level-headed to the extent that he is practical. T his speaks welt of the influence of his American education thal in later years afforded him the proper perspective in the monumental task of codifying Philippine laws and in the drafting of the social security measures now pending in Congress. At the age of 62, Dem llocobo can look back to the three decades of his professorial career during which period he had made more lawyers than most of the living law professors in the Philippines. And jusd y he can look back with pride and count among his students in those eatly years of his teaching at the College of Law, University of rhe Philippines, the late President Manuel Roxas, President Elpidio Quirino, Dr. J ose P. Laurel, Justices Cesar Bcngzon, Marccliano Montemayor and Alcx;rnder Reyes of the Supreme Court and Secretary of Justice Sabino Padilla. As educator, he was for five years President of the University of the Philippines followed by two years in the cabinet of t he late President Quezon a.s Secretary of Public Instruction. During those years he had introduced numerous reforms in the field of education in which he laid emphasis to the preservation of the high culture and virtues of the Filipinos - "that refined test for art and the broadening kr.owledge of the classics." As the head of the State university he always dreamed of inculcating a "generous estimate of loveliness and the sublime meaning of life which comes of a soundly developed artistic taste and a communion with writers c,f the classics." Dr. Bocobo is a prolific writer and a forcefu l speaker. His articles have appeared in big metropolitan newspapers and magazines (Co11tin11etl 011 pagr 286) , .. JUDGE CEFERINO DE LOS SANTOS T he evolution of penal laws of all civilized peoples is based on the philosophy that penalties arc meted out by the courts of justice, first, as punishment for crimes and, seconcl, as indirect instruments of reform for the benefit of society. In both cases society is protected with the imposition of penalties commensurate to t he crime committed. This is rhe contention of Judge Cefcrino de los Santos, presiding judge of the third br:mch, Court of First Instance of R.iza[ and !oca.ud in Quezon City, in defending the imposition of C3pital punishment for the crime of murder wirh all the aggravating circumstances proven in open court. "Much as I am averse to the imposition of death penalty," Judge De los Santos expostubtes in answer to a question propounded by the LA WYERS JOURNAL, "law is law :md its supremacy must be respected." The honorable judge of Rizal recalls how in a recent attempt in Great Britain to suspend for five ye:irs the application of capital punishment the Primate of England, the Archbishop of Canterbury, opposed the move wl1ich if ~uccessfu l would mean a funher rise in crime in the empire, in the opinion of the head of the English church. It must be recalled that H on. Delos Santos w:i.s the first judge afttr liberation to promulgate a verdict of de:lth penalty which he imposed upon two murderers in Ilocos Sur in a C<!Se that reverberated throughout the country. And for a punishment to serve as a deterrent to crime, it must be severe enough to scare even the hardened crimin:ils, he says. On the other hand, Judge De los Sar!tos :i.lso holds that the state should implemem its genera.I progr:im of education with the tempering effects of social just.ice through extensive so.cial services to m<!ke up for the inequalities in opportunities which have something to do with the degree of criminology obtaining in any community. J udge De los Santos was a prominent member of the House of Representatives before his appointment to the judiciary on August 5, 1946. H e represented the fourth district of lloilo having been elected to the office in November 194 1. During the occupation, the judge joined the civil government of the resistance movement as judge of first instance by virtue of a radiogram advice from Washington by the late President Manuel L. Quezon. He continued in his post up to March 18, 1945, when the liberation forces landed in Iloilo. · An interesting incident occurred during Judge De los Santos' incumbency as judge of first instance in Panay. Sometime in 1944 (Co11/i1111ed 011 page 286) May 31, 1949 DIRECTOR CELEDONIO S. AGRAVA Several months ago, an organization devoted to exploiting the creative talents of local inventors and artists, went on record to bment the fact that the p:itent attorney, who is an inevitable institution in American business life, is still an unfamiliar figure in the Philippine scene. It was further said that the budding genius is virtually left unprotected :tt the mercy of corrupt tradesmen who would steal or copy the product of his inventiveness for a get-richquick harvest of profits. Under the situation, the inventor becomes a "babe in the woods" but for the protecting arm, long outstretched on a ceaseless vigil, of the Patent Office of which Atty. Celedonio S. Agrava, a friendly and well-read lawyer in his early fifties, is the director.. The story of the Patent Office would be practically commonplace without mentioning the uphill task of Atty. Agrava who, on August 15, 1947, by drafting the organization chart and rules, gave impetus to its existence. In a run-about way of speaking, the Patent Office, which he has nursed from its fledgeling stage, is Director Agrava's baby. Drawing authority from a committee appointed by the Secretary of Justice in accordance with the provisions of Republic Acts Nos. 165 (Patents), 166 (Trademarks), and 167 (Copyrights), Atty. Agrava had to start on a frugal budget of P82,560 which was surely not much in helping meet the fin:mcial difficulties of his trail-blazing work. Notwithstanding this setback, the Patent Office passed the blueprint stage by the middle part of 1947 and, as a fitting consideration of his endeavors, the late President Roxas appointed Atty. Agrava ad interim Director of Patents on August 18, 1947. But the well-deserved reward has not gone into his head as wit· nessed by his apparent hesistancy to ruminate upon his early struggles as the "founding father" of an entity dedicated to the economic well-being of the country. To do so, as he puts it, would be "chewing the cud of one's own accomplishment." He becomes quite vocal though when the ambitious program of his office to hasten the commercial coming of age of the country is brought up; his current obsession is to open the eyes of the public to the importance, from the economic point of view, of ~timulating the creative faculties of the country by assuring inventors protection in their rights. However, casual remark al>out his role in this planning for an industrial millennium would draw a reticent response. This trait brings out the retiring quality in his demeanor. Atty. Agrava considers his educational background historic in the sense that it is filled with significant acquaintanceship. At the University of the Philippines, his esteemed alma mater where he received his A.B. and LL.B. degrees in 1915 and 1918, respectively, (Co11ti1111erl 011 /iagr 286) The Bench and Bar DIRECTOR EUSTAQUJO BALAGTAS Politics is the same everywhere. The candidate who knows his constituents more intimately than the other does-can call them by the first name, pat them in the back and show concern over their problems, can win their support. Thlt is Director Eustaquio C. Balagtas, of the Bureau of Prisons and former member of the Municipal Board of Manila, who had been in the city council continuously for twenty-one years. But Hon. Balagtas has other assets besides those common traits of a successful politician, He is a fighter and a conscientious law-maker so much so th;tt even Manila's clectorare, unquestionably the most intelligent group of voters in the Philippines, illd found it advantageous to send him every election back to the city council. Administrations have changed in Manila several times since 1922, when he was elected for the first time, but he always managed to keep his seat in the city council. An experienced City Father that he is, Hon. Balagtas had always a figure to reckon with in the Municipal Board where he was president for two times. Very well versed in city government, he knows how to get things done and how to do them speedily and properly. He has quite a wonderful memory and a fondness for statistics, and he could not be fooled by his colleagues. Another advantage of Director Balagt:ts is the fact that he is a lawyer by profession and his knowledge of law enables him to stand out prominent in the many activities that he has undertaken in a wide field of politics and otherwise. When the first world war broke out Atty. Balagtas was a captain in the historic organization, the Philippine National Guards. Imposing in personality, commanding in voice and tough in appearance, he carries himself with considerable respect. But despite this impressiveness, Director Balagtas has that amiablcsness that draws people close to him and to make him friend s who stick by him through thick and thin. In foct he has developed that personal relationship that has qualified him for leadership in numerous group undertakings. Continuously for 16 years, from 1922 to 1938, he was Superintendent of the Philippine Carnival and Exposition which require a lot of tact in dealing with the public. But nobody could have discharged his duties more successfully than he did. As a lawyer, Director Balagtas h:is had very limited practice. He had handled mostly criminal cases in which he had almost always rendered his services free. Bue he fel'ls glad that he is a lawyer because, he says, there are really some people, even in the city of Manila, who can not afford to p:iy for legal 5ervices and that is the time when he can come to their help. Atty. Balagtas at first did not plan to study law. He took it up only at night while employed with the Bureau of Commerce and (Conlimml 011 pag1· 287) May 31, 1949 THE LAWYERS JOURNAL 285 The Bench and Bar DEAN BOCOBO. (Cr111li1111('(/ fm111 J1ugr U·I ) as his views on current political topics and leg:il subjects h:ive been sought by editors and publishers. His longer works consist of books :rnd treatises on civil law; :ilso "Streams of Life" (a series of ess:i.ys on moral and social copies), "The Radiant Symbol" (a book of phys :ind short stories) and " Freedom and Dignity" (a book on the Philippine independence movement). At present he is Chairman of the Code Commission. He is the principal author of the proposed Civil Code, which is now being discussed in rhe Philippine Congress. The draft of the Civil Code proposes many significant ch:i.nges in the present Code, which is the Spanish Civil Code of 1889. Amo11 g the reforms recommended arc: (l) the liberalization of women's rights, (2) the implementation of social justice, ( 3) the consolidation of the fa. mil}', (4) the elevation of Filipino customs to the category of bw, ( 5) supremacy of justice and equity over strict legalism, ( 6) strengthening of democracy, and (7) exaltation of human personality. . . A disringuishcd member of die leg:il profession and of the Philippine bar, Jorge Bocobo w:is born 62 yezrs ago in the town of Gerona, province of Tarbc. He was educ;tted in the private and public schools of the town during the Sp:i.•1ish regime. When the Americans arrived, he continued his educ:ltion under the new American teachers. In 1903 he was one of the first group of Filipino pcnsionados sent by the Philippine government to the United Sures to contimie their studies. . Atty. Bocobo graduated from the law school of Indiana Univer~ity. Upon his return to the Philippines he was appointed a bw clerk in the Executive Bureau of the insular government until 191 l. He was admitted to the Philippine bar in 1913, although he actually began to teach in the College of Law of the University of the Philippines two years before. He rcm:lined as professor of civil law until he became President of the University of the Philippines. That was after he h:ld served 17 years as dean of the College of Law. Or. Bocobo is an hononry member of the Spanish Academy· of Legislation and Jurisprudence, and holds the honorary degree of Doctor of Laws· from the Univenity of Southern California. - 1.T.R. JUDGE DE LOS SANTOS.. (Co11ti1111ed from J1~1ge 281 ) he sentenced a certain Talabon for a term for a crime of murder. But because of the continuous activities of the enemy and of the guerrilla forces the judge could not promulgate a formal written decision. "I was unable ro comply with my duty as judge then," says Hon. De los Santos in retrospect, " because of the fighting in lloilo when the guerrillas su r~ounded the city for over a month up to the time of the arrival of the Americans. On the landing of Gen. MacArthur's forces, I was immediately ordered by the PCAU to vacate my office and to surrender :ill court records to the reinstated judges. "Ta!abon, who was all the time under custody, filed a writ of habeas corpus against the provincial warden. In a Supreme Court decision penned by Justice Gregorio Perfecto, I was criticized for not promulgating a written verdict. However, I refrained from answering the justice's cutting remarks, which I could have done so, but, instead, I kept silent knowing full well that the records and minutes of the controvetsial case will bear me out in dignity and contained self-respect." Teaching law at the same ti~e at a loc:ll university, Judge De los Santos still finds time reading literary and legal classics for which reason he has a broad cultur1l background. A forceful speaker and entertaining conversationalist, he has quite a dominatmg personJ!ity which an eminent psychologist ascribes to intellectual maturity. He believes that lawyers would be more proficient should they hold at least an A.B. degree before proceeding to a law school. He also advises the reading of legal publications like the LA WYERS JOURNAL which, he sJys, is useful to both judges and law practitioners. Reading books and publications of this kind with articles written by authorities, besides decisions and public laws that are regular features in every issue, gives a lawyer or judge the profundity essential to the career of law, philosophizes the Quezon City judge. Born in the prosperous town of Potot;tn, lloilo, on August 26, 1892, Judge De los Santos went to grade school in the Instituto de Molo and later proceeded to the Iloilo Provincial High School where he finished his secondary education. Proceeding to Manila thereafter, he enrolled in the Philippine Law School from where he obtained his LLB. in 1924. In the same year he was :ldmitted to the Philippine Bar following which he practised law for 21 years. Hon. De los S:lntos believes that the administration of justice in the Philippines today may be made more expeditious should judges of rhe court of fi rst instance be given lawyers as secretaries who can help them in their work, particularly in researching, thus enabling the judge to dispose of cases faster.-1.T.R. DIUECTOR AGRAVA . . (Co11ti1111cJ from page 285) he rubbed shoulders with present-day personalities of the bench like Justices Alejo Labrador, Jose Ml. Paredes and Dionisio de Leon of the Court of Appeals, J udge Ramon San Jose of the Manila Court of First Instance, Solicitor General Felix A. Bautista and City Fiscal Eugenio Angeles. Having taken the three-year law course for non-working students, he was required in accordance with the then prevailing practice, to undergo a year of apprenticeship before being permitted to take the bu examinations (he took it at the law offices of former Justice Mariano H. de Joya and WDC Commissioner Francisco Delgado). In August, 19 19, he hurdled the last roadblock to his being a full-fledged lawyer. Adding another leaf to his academic laurels is a Master of Arts in Economics degree which he obtained from the graduate school of Yale University in J une, 1927. Director Agrava has a petulant distaste for lobbying in any w:i.y or purpose. He sincerely believes thlt by asking someone to pull the strings for his advancement or in order to obtain better attention and increased appropriations for his office, would eventually hlmstrung the functions of his organization, losing its independence in the bargain, as it pays obeisance to the whim of its patron. Stressing this aversion, he elaborates: "My point in refraining from lobbying is to feel free in pursuing my work like a bird out of a cage and, mind you, with my conscience clean, I ~Jeep well at night." One common plaint of the Pltent Office is the glaring lack of qualified hands to perform its mulrifarious activities. It is a matter of common knowledge that the organiz:ition is sorely undermanned. As of this writing, ot.lt of the 15 2 pending patent applications, only 4 patents have been issued bccau~e there are but three men-the director and two engineers-who h:rndle the intricate job. Another headache of the office are 1,000 new trademark applications together with more than 1,500 p;!titions for the issuance of new certificate under t he post liberation trademark law which are to be processed and acted upon by a staff of five men. A lawyer and an assistant handles applications for copyrights. The daily grind has not made Director Agrava an cager beaver. He spontaneously, without offending, disengages himself from the mechanics of talking shop and deal on a variety of subjects in a lighter vein. - T his elasticity in his nature has not made a mental robot out of the m:ln. His co-workers state that he can more than hold his own on any controversial ground of culiure. This aspect 286 THE LA WYERS JOURNAL May 31, 1949 .. ~ for being of the Pm:- Office entors :ind writers to such :in exg to entrust their brain-children to .1dency of their applications. It is a workers to have their suspicions easily manifestation of interest in their work by st;::~l£i:\b~~e t~:v::~t:n;;/; ~r::~~;o;a;;n; 10 wanted himself strapped to his contri\•ancc ie :irchives of the government pending the isa p:itcnt in his name. His reason was that "I came from .1 village of horse-traders; I do not trust anybody.'• In relating this anecdote, Director Agrava was perhaps unaware th:it by the sizeable number of applications for patents and trademarks that pour daily into his office, one c:in tell th:it the man r:idi:itcs the essential stock-in-trade that keeps the machinery going. This virtue is confidence. His · kindly appearance, accentuated by thick-rimmed glasses, outwardly shows a personality that is identical to that of a cleric or a college professor. Either way, he could be the repository of a trust. This fact is s3id to be one 9f the uninventoried assets of the Patent Office. In the course of his duties, Director Agrava every now and then pau_ scs to ponder whether he h:is found the right job considering th3t in his youth, the pr:ictice of law h3d been the beckoning "'lighthouse" in his pbns. Law has alw:iys fascinated hUn and now as he sits comfort:ibly in his swivel chair, he wonders a lot :ind be.comes introspective. Looking over gadgets :ind plans is indeed :i for The Bench and Bar JVC. But he invariably finds consolation in the ..• c 11is early ambition :ind his present work travel cow:irds the 3mc destination which is public service. Director Agrava was born in Manila fifty-five years ago on March 3.-M. S. Jr. DIRECTOR BALAGTAS. (Conli1111cd from page 28 5) Industry where he w:is, from 1919 to ' 1923, :issistant commercial Jgcnt. From 1918 to 1919 he was instructor in military science at the University of the Philippines. From 1920 to 1922 he was instructor, :ilso in military science, at the N:itional University. Director Balagtas W3S born 5 2 years ago in Iba, the capital of Zamb3les. He finished his elementary and part of his high school education in his home province, after which, like most ambitious youth, he came to Manila. He entered the Manil:i High School from where he gr:iduatcd his secondary education and then proceeded to the University of the Philippines. When the University of Manila offered the combined law and business administration course, he was :it~ractcd by the new curriculum :ind took it for five yc:irs. He is a holder of A.B., LL.B. and B.B.A. degrees. He was admitted to the Philippine Bar in 1927. Atty, Bal:igt:ts is a meffiber of more than a dozen -national org:inizations :ind scvcr:il semi-government commissions. He is also a member of civic, soci:il and religious associations, among which arc the C:iballeros de Rizal and the Knights of Columbus. He is one of the few who can be relied upon to organize parades, mass meetings :ind r:illies . He plays very good golf.-1.T.R. Announcing the Opening .on July 5th of the FRANCISCO LAW SCHOOL Senator J/iceule J. Francisco, Dean 1192 TAFT AVENUE, (NEAR S. ANDRES) offeri11g the followiug COURSES: LAW Four l'earlf PREP ARA TORY LAW LEADING TO A. A. - - - - LIBRARY: - - - - With a spacious and well ventilated librarv of more than 5,000 well selected voiumes on law and thousands of other books, magazines and periodicals for rderence and outside reading. May 31, 1949 Two Years HIGH SCHOOL Four Years - - MOO'r COURT ROOM:--· A moot courtroom has been constructed resembling a real court to give the students the proper atmosphe1·e and background when they try and argue cases assigned by the professors. Registration going on. THE LA WYERS JOURNAL ~ LABORATORY: --The laboratory is equipped with I the latest instruments and apparatusses for practical demonstrations and as aids in the study of botany, physics, ballistics, fingerprint, etc. 287 "THE LAW GOVERNING LABOR DISPU1. IN THE PHILIPPINES" Former Justice Laurel, in his foreword to. the book on "The Law Governing Labor Disputes In Tl--: Philippi,pes" of Senator Vicente ]. Francisco, said the following, among other things: "I have read with consuming interes~ this book of Senator Vicente J. Francisco on the different a::.pects of the labor question and, because it seeks to throw light on the vari~d forces which are working to shape here, as in other parts of the worl~, a new way of life that is 'collective in its econom; .... oasis, democratic in its political control of all who' serve society by their work, and individualistic in the unfettered achievement of the creative workers,' I am convinced chat, through it, we have fallen heir to a masterly contribution to our growing legal literature. The reader, I am sure, will find interpersed within its pages a rich reservoir of indispensable source material, compiled with exhaustive thoroughness and analyied with such discriminating caste and comprehension chat belongs only to men of the caliber and stature of the distinguished author wfi()it not only a jurist but also a ' Now on Sale! The first AUTHORITATIVE BOOK on LABOR LAWS in this country: "THE LAW GOVERNING LABOR DISPUTES IN THE PHILIPPINES" By Senator Vice11te]. Francisco Pso.oo J- man- o) letters, an experienced prac! ~·wmr:~, legislator, and scholar. I, therefore, take this opportunity to 752 Pages of definitions, explanations and commcn ~arics Sllpportcd by Philippine decisions and American precedents. per For bbor org'"'"''o"" judg", bwym, - / 288 recommend it to the members of the bench and the bar and to the general public, and to congratulate Senator Francisco for chis singular valuable service to the community." ,__c_o_P_Y _ _. ~;~;;,nrnent official~, employers and stuAvailable at: EAST PUBLISHING * LAWYERS JOURNAL 1192 Taft Avenue Room 3 24 Sam:millo Bldg., Escolta Exclusive Dealers THE LAWYERS JOURNAL May 31, 1949 LAWYERS' DIRECTORY = --· A L B IN O. PEDRO L . 450 S ta. Mn a Blvd., Manila A NTONI O, ROMAN B. 308 Sa m11n illo Btdr •• !'>hn lla AR CHES, VICT O R A. Saile 3112-303 Caho Bldir. E.colta , ~hnila AVENA, Vll. LAt'LO:u :s & DES IERTO 3r d: floor, Monie de Piedad BldJ. P laH Su. Cruz. thnila BAIZ.AS, CR IS PIN D. 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