The Lawyers Journal

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Part of The Lawyers Journal

Title: The Lawyers Journal
Issue Date: Volume XXVI (Issue No. 11) November 30, 1961
Year: 1961
Language: English
Rights
extracted text: JAL l ~ WY:S4s I ~ ~~/ J O JRN AL,1 , MANILA, PHILIPPINES < I• VOLUME XXVI NOVEMBER 30, 1961 NUMBER 11 VICENTE J. Fl lANCJ~CO l·;t/il<11·1111tl l'11/i/ifllier Jll CAllllO .I. .i'llANCISCO A1111isfa11t J;;dito1· VICTO!l CJ. l'ltANC ISCO ll1ui11e1111 M111wr1e1· Till!: J.A\VYl~H 8 .IUUHNAl. j,; vuulishctl moulhly. hy lluu. Vi· cenlc J. l"runcisco, Jor111cr scuuw1· <.llltl tlclcgatc lu the Constituliunul Couvcnliu'u, pnu:li,,111~ alturuey anti 11rcsidcut of the l•'nrnciscu Culli:gc (fo1·1ucdy l•'r,111ciscu Law 8chuol.) EDITORIAL: THE ELECTIONS AND THE PROBLEM OF GOOD GOVERNMENT CHANGES CAUSED IN GRANTING INPERIOR COURTS CONCURRENT JURISDICTIONS WITH THE COURT OF FIRST INSTANCE IN SOME CASES - By Judge Dmnio.n Jimenez UNITED STATES SUPREME COURT ADVANCE OPINION Opinions of Just:ccs in Chambers SUPREME COURT DECISIONS . McEntce v. l\lanotok - JW3tice L abr<1dor . Jcas:a no v. Jcasiano - Justice Concepc;&n Mcrcader v. Hon. Valila, et al. - J1uticc Bcn9zan Carpio Vdn. de Camilo ct al. v. Hon. Areamo et al. - J1tstice Paredes De!·gado Brothers Inc. v. Court of Appeals f't nl. - Ji~slicc Bfmtista A 11gclo Fores v. Mira1:da - Justice J.B.L. Re11es San Diego v. Sayson - Justice Labradr>1 La Mallorca Bus Co. et ::ii. v. Ramos, et al - Ju.~tice Natit>irlad Diez and E lech icon v. Hon. Nietcs et al. - Just:ce J.BL. Reyes . CagaJ·awan v. Customs Canteen et al. - .!ustice Paredes . Perez v. City Mayor of Cab~r.:auan ct al. - Ju:;t;ce De Leon. . Board of Liquidators v. Floro et al. - hstice J.B.L.. Reyes Lao Lian Su v. Rl'.'public - J11stice J.8.L. Rr°yr.~ . 1961 BAR EXAMINATION QUESTIONS (Conclusirn) Remedial Law Legal Ethics and Practical Exercises COURT OF APPEALS DJGEST 01•' DECI3IONS RULES OF THE ELECTORAL TRIBUNAL OF THE HOUSE OF HEPRESENTATIVES PROF ILES OF ME:\1RERS OF THE BENCH AND BAR 321 322 328 330 332 333 334 335 337 339 3.U 342 843 345 315 ?.·17 348 348 349 350 SUU:::it:HU'TION ANIJ Al>VEit. l'lSlNU ltA'l'l!:S: ::,ubscription. tn U1c l 'hilippiues-1•:.!u.uu for Ulll: )Cat· ; l'JU.UU for li lllOlllhs ; l':.!.UU llt.:r 1:upy. l o tl1c Uuited States and forcig-11 cou11trics$:!ll.UU rur Olli.! ycnr; $10.UO for ti 111u11ths ; ~~.UU pc1· copy. Advertis ing: l•' ull pa;!;e- l1 lOl1.0U; ilalf p;igc- l'mi.IJO; Ouc-fourth pai;·c-1'45.0ll; One-eightl1 page:.15.00; 011c-sixtl!e11th pnge1'25JJU; Bi1ck Issues: ln the Judge Conrado 1\1. Vasquez . . . . . . 252 l'hilip11i11cs-l':.!5.UO - twelve issue~; 1•:u10-pcr issue. Jn tht: Uuilctl States a 11d funiii;u cot1ntr1es-$:!5.00-twelve issuu; s:uJQ-pei· i ~suc. E1aered as second cinss mail m:itter at t h1:i Post Orrice . BUSINESS OFFICE: lt-508 Sam:11lll\o Bldi::-. Eseo!ta, Manila - Tel. No. 4-13-18 371 ----------··------------------francisco ' s Supplemeni lo Contains - THE REVISED ELECTION CODE (1957 Edition) amendments to the Revised E lection Code passed by the Legislature from 1957 to 1961; doctrines of the suPreme Court and Court o.f Appeals from 1957 to 1961; American doctrines on "corrupt practices" in elections. PI0.00 EAST PUBLISHING COMP ANY R-508 Samanillo Building Escolta, Manila Tel. 4-13-18 francisco's LAND REGISTRATION AND MORTGAGES REVISED EDl'l'ION (1961) A revised and enlarged edition. Each section is reproduced with all the latest amendments. Commented and amplified by illustrative cases and new doctrines of the Supreme Court and the Court of Appeals. Special value to the Bench and Bar, as well as to law students. : Part I deals with the Land Registration Act; Part II deals with the Pullie Land Act, Cadastral Act and the Law on Mortgages. 1'30.00 TRIAL TECHNIQUE AND PRACTICE COURT Volume V REVISED EDITION (1961) Contains the transcripts of records of actual trials of celebraled cases in Philippine jurisprudence, whose importance and value for practicing lawyers and those who are planning to enter the active practice of law are beyond estimate. P39.05 EAST PUBLISHING COMPANY R-508 Samanillo Building Escolta, Manila Tel. 4-13-18 THE ELECTIONS AND THE PROBLEM OF GOOD GOVERNMENT The co11ce11sus of post election analysi.<; is that the incoming adminfatration won its bid for the people's mandate on the issue of ,qmft and cm·ruptiMI. The party of the united opposition conce11fratcd 11.<; c:impaign strateqy upon a det<u'led 1"mlictme11t of the personal actuatfons that appear to huv" governed the conduct of administration officials iu the discharge of thPir public f1111ctions. 1'//a (•µposition campaigned on the theme that, nnder the Nri<'ionalista admhiistrotio11, public office has been couvertrd to prfrate use, and r e,c;ponsibility u·as accordi11gl?J laid up01i the EJ:ecutive D~;pal'tment. embodied in the of fire and perso11 of the Chief E.l.'ecuti ve. 1'h~ dectorafe crossed party /foes. They i·oted /01· the men ami. womeu whom they deemed deserving of their ti ust. The elections resulted in a preponderance of Nacio11alistas in the lower Honse. T wo Nacionalistas 11•ere voted i11to the Se11ate. And we dare say that the Presidenfdect, as wefl as his nurniny matt', was voted to the executive stewai·dship of the land. on the .~tre11gth of a personal hna:Je which satisfied the people's 1cant for integrity fn · govermnent. The fn··mediate task before th€ incoming administ1-ation is to franslate its canipaign cry for good government into a meaningful, practical an<l enduring political philosophy. In the 'implementation of this ta.~k. the Pre1;;identelect and his official family will labor under an mtspicioYs and heartening beginnh·1g. Beforn them is the eloque•nt lesson of the elections. It is not politically expedient to misuse a.nd misapply the trust that i·nheres in public office: that there is, afte1· all, a promising future 1·n political idealism and the old fashioned virtues. To carry out the domestic and international pol-ic1'es of his administration the Presi'.dent-elect will need the undi-vided support of his varty. He will need the party to insure organizational support ·in the implementation of specific volicy obiect.ives. And he will need volitical astuten~s of the highest degree if he is to secure the cocperation of a Congn~.~s dominated hy a rivaf, partis0tn •lT[Ianiza~.fr>n Nation building 1·s a national respnnsibility which must nmtually be shar€d in the politfoal field, by the Executive and Legislative bran<:he.~ of tlte government. But on one vital uspect of nation building, on the one pledge which dominated the campaign platform. of the President-elect, he and he alone will have to assume the burden of pe1·sonal responsibility. This ·is his pledge to rest-01·e integrity in the runnino of government. Th.1"".s is the immed:iate task before him, for p1incipaUy upon this pledge wns he catapulted to tlu; vower, the glory and the promise of supre11u; politfral power. How the P1·esident-elect will fare on this vital and particular 1nission will depend largely upon his understanding of the nature of the presidential office. His personal honesty constitutes only the starti11g point and. minimum requirement of his mission. From all appearances, however, the President-elect is a man sufficiently aware of the implications and crn1sequences of the Presidenc11. He ha~· pledged himself to the doctri11e of Com11urnd Re.~ponsibUity. While f"hcre i~~ nothing novel a11d original about this doctrine the President-elect, 1.Jy invoking the ,<;um.e, has demonstrated the intdlectuel and m.oral orientation necessu.ry to a faithf1tl discharge of Ms high office. A paper published in the last issu,e of tlte Journal amply showed that the doch"i11e of Command Reswmsibil:if.y is nothiug mo1·e but the responsibilit11 vrescribed by the Constitutiou upon the ])residency for the conduct of the Executive dcvartrnent wh·ich he personifies. This res1J011sibHity flows by necessu,ry im.plication from the Constitutional provision which vests control "o.f all the executive departmen~s, bureaus or offices" in the P1·esident. (Art. Fil, sec. 10 (1) ). Since this provision makes the President the head of ad1m·m:strution, he canuot escape responsibility for the behaviOur and performance of those whom he has designated nnd accepted into his executive fam.il?J. V1·'$wed. in another light, the members of a PrP,S. ident's official family are nothing m01·e but the vroiection (Incl ea:ten.~ion of the ~n·esid.e11.tial personality, and for whose actuations, verformance and behaviour in the dis£ hargc of their publfr dutiP-8 he must accept p1·esidenNal responsibility. The power of control u:h· ich thf' Constitution has vested in the President is a constif.utional function. Because it is a function, it is perforce a duty. And. i.f the Chief Executive Jurs the duty to control all agencies of go·vern"ltient which comprise the E:cecutive Department he cm1 not avoid assuming resp01ieibility for them. Official spokesmen of the NacionaUsta adm,inistration rejected the doctrine of Command Responsibility by la.ughing it off. In this they showed a profound and irrespon8ible i{J1101·1J.nce of a re.11ponsibility '[Jrescribed by the Constitution, and explains a basic cause of their failure f.o proi·ir l~ the notion with an hon.e.(lf. and e.fficient administration. A President ·who would den11 1·esvonsibility for the actuations and behaviour of the members of his executive family cannot, by an equally necessary implication, be ex· peeled to vrovide a climate for sound govermnent. Presidential responsibility is the price exacted by the Constitution from tlwse wlw would aspire to exercise the vast powers. of the Presid:mc11. President.ial powe1· without JJ1"esidential resvonsibility can only mean dictatorship. By enunciating the doctrine of Command Resvousibil·ity the President-elect was merely d~cribi11g a constitututi.onal reality which inheres in the function of the Presidency. By attemvt1·ng to discredit the doctrine, the official spokesmen of the outgoing administration disclosed a re11eali-ng philosophy that may well accou:nt for the kind of admi'ldstration which the people rejected during the last elections. Precisely because the aduations and behaviour of the executive family is a presidential '1·esponsibi!ity, it becO'/n.('R imperati1Jelp necessary for the P1·esident-elect to ap7wi;tt to office only those 1nen and women who 1uill do iu.stice to the ,·esponsibUity imposed by the Constitution upon the P1·esidency. This is the reason why the Presid~nt-elect must not (Continu~d next page) November 30, 1961 LAWYERS \JOURNAL P age 321 CHANGES CAUSED IN GRANTING INFERIOR COURTS CONCURRENT JURISDICTIONS WITH THE COURT OF FIRST INSTANCE; IN SOME CASES' By Judge DAl\'(IAN L. JIMENEZ*"' Judge Damian Jfownu P rior to the amendment made on the provisions of the Judiciary Law of 1948 by Rep. Act 2613, specificaliy Sections 8G, 87, 88 and 90, questions on the extent of cases which may be taken cognizant of by courts of limited jurisdiction seem less unsettled thun as now obtaining. Howeve1·, though this is not saying that all the conceivable questions on the jurisdiction of such courts havo fully passed judicial interpret."ltivc scrutmy, the fact reffiains, u:1d fact it is that a number of issues raised from without the exp1·css lnnguage cf the Judiciary Act had been iaid bare by decisions of the superior courts.I On August 1, 1959, when Judges of Municipal Courts and Justices of the Peace Courts of the capital o! ' provinces began re-adjusting themselves to the conformity of Rep. Act 2613, jui·isdict[onal issues which mostly are questions of first impression began assei·ting themselves in one form or another. A Fiscal, may for instance, file a case before a court only to be tossed back by the Judge on a claim lhat he is without jurisdiction to t ry it, or, a J udge of an inferior coul't after judgment of conviction in a case appealed" against, transmits the records thereof to thf' Court of First Instanct only to be remanded upon a resol~tion that the appeal pertains to the .Cou1·t of Appeals. These an3 other similar questions arc not infrequent' occurcnces after the amen.latory provisions became effective. Therefore, aware as we are of the motive behind the amendment, an outlook to obviate !rem these sad experiences should be as compelling as the inducement which, by legislative fiat, made the amendment possible. It is to this end that this paper is intended, without assuming that everythinlt' will be solved. Under the Judiciary Reorganization Act or 1948 enact.c-d and marle effective upon its a91>roval on June 17, 1948, t~c jui·isdiction of the justices of the peace and Mu11icipal Courts of chartered cities covers those expressly pr.Jvidcd i11 Sections F6, ':-.7, BS :ind 90 thereof. In addition, f:uch courts have jurisdict:on concurn•ntly with the Cou rts of First Instance and the Supreme Court "over cases affe<..ting amb:is.:adO-,·<>, other' public ministers and ronsuls"2 including, as advanced by some local commentarists. the power of judicial review.3 Section 86 Of Rep. Act 296 or better known as the l.Tudi.!iary l.:tw of !!HS as amended by ReJJ. Act 644, states that justic~ of the peace and judges of municipal courts of chnrtered cities hav< jurisdiction ccnsisting of: (al Ol'iginal jurisdic:;on to try cl'iminal caSC>s in 1Yhi('h lho cffensc charged has been committed within their respective tenitorial jurisdiction; (b) Orig:nal judsdiction in civil actions arisini' in their re~ pective municipalities and cities, and not exclus.ively cog· nizable by the Courts of First Instance; and * Speech delive;·ed at the Convention of City Judg-es held in 2. Concunent original jurisdiction in this class of cases should Baguio City last February 23, 1961. mean the sharing of the Supreme Court with the most inferior •• Judge Jimenez is presently a Judge of the Municipal courts of cases affecting ambassadors, other public ministers and Court of Quezon City. a position he has held since 1956. Before consuls such that the Supreme Court would have concurrent j uristhe war, he engaged in private practice, holding at the same tim~ diction with the lo\v-cst courts in our jurlicial hierarchy, the ju .. tice the office of the Justice of the Peace of Calauag, Quezon. He sub- of the peace courts. in a petty case involving for instance, the sequently held the positions <if special counsel, deputy fiscal and violation of a munici1ml ordinanC"f. affeeting the parties just mcnassistant fiscal of Quezon City and Manila. The experience and tioned. (Concurring Opipnion, 'Justice Laurel, Schneckenburger vs. training gained by h im in private practice and in the fiscal's office Moran. 63 Phil. p. 267-268) has earned him the appointment to the office he is presently occupy- 3. That lower courts have the power of judicial review is merely ing. A holder of MA, LLB, LLM and DCL degrees, i.Judge J imenez an incident of the power to decid£' actua! oses before the ccurt. 8ince is teaching law, philosophy and social science in the University of the function of adjudication imposes on the court the duty of _ascerSanto Tom.as, Lyceum of the Philippines and the Philippine Col- taining the facts .and :ipplying the law to such facts and since tl~c lege of Crimjnology. constitution where app:;cab\e overrides a statutory provision. exo>cu1. Uy Chin Hua vs, Dinglasan. 47 0.G. 233 (Supplement) No. <:ive o:-der or municipal ordinance, it does foll0w that in deciding 12. After hoiding that destierro though, of long dur:ition than a case before it. a lower court muy have tv annul any legislative n rreslo nta·y<>r is a lighter penalty than the latter, the SuprcmC' or executive act in contravention of the constitutional provision. Court held that the infedor C:'!Urb; have jurisdiction of cases so (Constitution cf the Philippines annotated, 'l'uftada & Fernan<lo, p. J'enalizert saying-: .. Thus there oist:i a ~ap in the law as to which 775) Uncier Section 10. Art. VIII of the Philippine Constitu~i('n, coul't sh<";il t>ave originnl jurisdi~·tion over offenses pcnnli7,ed w;t!': the Supreme Court has the power to declare a law or treaty undc~tierr-0 or hanishme nt. Until the law making' body should fill constitutional. There is hoWcver, nothing in said secti.on from that gap by t:Xpressly providini::- othenvire, the Court must Jo so which it can be concluded that the power to ileclare a law unconsli~rc:~sonable inteq>retation of the existing law.'_ ' _ _ _ _ _ _ tutior.:il belorigs exclusively to the Supre111e Court, this .. :ectiol'I proEDITORJAL . (Conti11'!1('(l from page 321) hesitate to cross party lines in considering the persons idto would reflect his official personality. Virtue 1s never the monopoly of a political party. Nor, for that matter, is vice. The President-elect has every right to demand loyalty lo the announced policies of his administration. But in justice to himself, he cannot afford to demand volitical loualty as <t condition precedent to public service. For he, and not his pa'rty, will beal' the bru.nt of the vublic .<.:crutin11 that will judge the calibre of the men and women he appoints to office. Responsibiht11 is on him. Not on his party. Appointments to executive and admini.stTative vositiuns in the governnient must transcend partisa.n considerations. The onlJJ political expedient criteria are com .. -petence and 1~ntegrity, as the ccitasttophic experience of the cn1tgoiug president has indicated. This is tke .only way by which the President-elect can channel the nation's available intellectu(/l and moral resources of the country ·into public service. This is the only 1l'a?I he can successfully shouhler the burden of presidential responsibility. He fa no longer ju.st the m·esident of a political party. He is now the President of the PhilipPines, to which he owes, by his own choice, ultim.ate and supreme fidelity. LAWY ERS !JOURNAL Ncvemher 30, 1961 (c) The last phrase of par. (e) or (Section forty-four) of · this Act, notwithstanding, justices of the peace and judi;·e-; of municipal courts shall have concurrent. jurisdiction with the Courts of First ln!>tance in the appointment of gu:lnlians and adoption r.a'Oes. This section was not modified by the new amendment, rnv~· probably the last pani.graph thereof which may be said to h>1v'3 l:ccn impliC'dly repealed by the 2nd paragraph of Section 88, ~ls now read, on appointment of guardians. This conclusion seems clear from the mar.ner the amendment is expressed. Rep. Act 2613 Cf'n · sists of 13 sections. All sections, except the 12th and tho 13th, the appropriation and effectivity cbuses, are introduced by the phrase •·is hereby ~mc·ndcd to read a:> follows," following the citation of the section3 mqdifit:d. Such being the case, the legislature tncr~ fore mel"ely intended a change in the provision of the particular i;edion or sedions expressly mentioned and not to ::iny other scd.i,..n or sections of the old' provisions of the Act."" Of t he elev~n section'O in Rep. Act 2613, no mention of Section 86 was ever made. It foltows therefore, that the intention of Congress wns to retain t~H' odginal provision of Section 86, and not to suffer it the modifications of the new provisions as set out. H owever, though this may be so concluded on paragraphs (a) and (b) of Sectio~ 86, the ~amc shouk not be made to apply to par. (c) even in the face of the knowledge thnt Rep. Act 2613 did not provide for a repealinr,clause. To hold it so would be to say that Cong ress intended to make the j urisdiction of the courts rcJe!"l'f'd to in Section 86 1111certain - a supposition which does not deserve rvcn the slightest regard. Therefore, the obvious contrariety between the provisions of par . (c) of Section 86 proviUing for a concurrent juris<lictivn in the appointment of guardians and thl" provisions of Section lO o( Rep. Act 2613 whioh do away with such concurrence with the Courts 'Jf First Instance, should be reconciled. Sine~ the provision::; of Section 10 amending Section 88 of the Act do away with the power of the inferior courts in i he appointment of guardians gr3nt. ed them under the provisions of par. (c) of Section 86 of the Act, the conclusion should be that, as a general rule, justices Of th1• 11eace courts and judkes of municipal courts have no jurisdiction in the appointmtnt of guardians, by tacit 1·epP.ai,<> the repugnancl! b·~ tween the two provisions being irreconcilable.' The rule, however, as said, is but general. It cannot be claimed obsolu~ly that,- by Section W of the amendatory Act, justices of the peace and j11dgPs of municipal court! are at p1·esent totally divested with such powei·. vide~ only fc.r the procedure thnt th~ Supreme Court shou!<l folJ,...w whlln such question is presented before it. (Espiritu vs. Fugo~o. G.R. No. L-1768, Oct. 20. 1948) Furthermore the provisions of the constitution that the Supreme Court shall ha"e exclusive juri.<:diction to review. revise, modify, or affirm on appeal. certiorari or writ of error. as the law or r ules of court may provide, final j udgments enc! decrees of inferior courts in a ll cases in which the constitutionality or validity of any treaty or law is in question, implies that the inferior co~rts may declare a law or treaty unconstitutional, but their decisions or decrees on the constitutionality or validity of any law or treal y :i.re subject to a ppeal to U·P Sunrcnw Court. (Phil. Const. Law by R. Martin, Rev. Ed. 1956, p. 65) '· Where the specific prnvision was amended '"to read as follows : 'it is a re-enactment of the whole subject in substitution of the previous one which the~·eafter dis3ppea 1·s entirely. The intent of the legislature to set out the original section as amended is most commonly indicated by a statement in the amendato1·y act that the original sectio11 ii,: amended 'to read as follows: '"The legislature thereby declares that thf! new statute i~ a substitute. for ihe original act or section. Only thosc pro\·ision of the original act or section repeated in the amendments are retained. (Domingo T. Parras vs. Land Registration Commission citing> I Sutherland statutory constn1ction. 3l'd Ed .. p. 4Z0-421) G.R. L-160!1; Prom. July 26. 1960. 6. From the momc-nt there is a ct:1nflict hetween an old" Jaw and a new taw. so that the observance <Jf one excludes tha~ of the other, the conflict must be resolved in favor of the later Jaw. This implied repeal of an eal'lier !aw takes place without any special declaration in the .o:ubseq:.ient !aw. (Calderon vs. Santisimo Tioi::a rio 28 Phil., 161; U.S. \' S. Chnn Tienc". 25 Phil .. 8!).) ' · l bilf Stronrly indicating- this contention is the force draw• from the fact that Section 90 of the Act has not suffered emasculation by tl1e amendment. Said Section 90, as a.mended :1 ""Justices of the peace and judges of municipal courts of chartered cities shall have concurrent jurisdiction with the courts of first instance to appoint guardians or g"U:J.rdian AD LITEM fttr pet" BQ118 1vho m·c incapacitated by bein!I of 1ninor a. Qe <>r m entally incapable in nuilU:rs within their respecti"Vc juristlicti011." (Underscoring supplied) Inasmuch as the provision of Seciion 10 Of Rep. Act 2613, b this regard is couched in gencrnl tei-ms, it is believed that it could 11ot affect Section 90 such as to remove the same power of appointment of guardians from the cognizance of the inferior courts to the Courts of First Instanoc, over specific subjects, and in "matters within their respective ju1 isdiction." Section 90, like Sc-ct.ion f;(; of the Act was not t reated by the amendment, which, as al r~ady noted, only modified isolated t l'ctions of the prior pl"Ovisior.s oi tho Act. Untouched, it therefore remains effective as apportioned !)y Congre'is to the inferior courts concunently with the Courts of Pirst Instance. This is one reason for holding this view. Anothe1', anC n more compelling one, is the fact that Section 90 C'"OVers not the entire field of the power of appointment of guardians but me1 ·cly some cases of that gamut .. Un!ike the observation he1·e made between Section 10 of t.he amendntory law and Section 86 par. (c) of the Act, said Section IO does not produce any confEct or antaR '..mism with Sect.ion 00. On thr~ contrary, the or.e is the hl'l.rmoniom~ pan of thP. other,8 or, gl<!aned in anotht•r light, may be taken to l)e a cnse of an excl"ption from: a rulc.9 Therefore, Section l!) of the amendment and Section 90 of the Act construed together should make up the following rules: (1) Where the subject of the prO<"eeding8 are person<l who a re incapacitated by being of minor :tge l"'J" arc mentally incapable, justices of the 11ea~e and ju<lb'"el-l Of municipal courts have jurisdiction in matters within thei1 · respcct!ve jurisdiction, concunently with the Courts of F irst h1· stfmce; (2) Where th~ subject of the proceeJings are t~c p:orsons above referred to but the matter before said courts are without their respective jurisdiction, there is no concurrt'nce : jurisdiction. in the Courts of First Instance is exclusive ; :\nd {3 ) Whei·e the subject of proceedings arc other incompetent! (those under civil interdiction, hospitalized lepers, prodigr.l.i, den{ and dumb who are unabl<> to J"<:ad and write, tho!>1, who by reason of uge, disease and other similar cau~~:>, cannot, without outside aid take care of themselves anci urnnagc their property, becoming thereby an easy prey fol" deceit an<! exploitation - (See Sc: . 2 Rule 93, Rules nf C'-0urt) the jur isdiction. to appoint gunrdians is excltt~ivc in the Court of F irst l n!-ltance. (NOTE: The J uvenile and Domestic Reiations Court of the City of Manila is of the category of a Court of Fir~t Instance.) Eal"iicr, mention was made that in view of the manner whereby Congress incorporated into the provisions of the Act the Present change, Section 86 not thtireby includP.d, should not be taken to bend to the new changes save par. (c) on the matter of appoint1. See Rep. Act 648. 8. Lichauco vs. Apostol. 44 Phil., 13K But in all cases wl!ere two stntutes <"over, in whole or in part, the same matte1 ·, bu~ tl1 <!y are not absolutely irreconcilable, the duty of the Court - no purpose to r1:peal being clearly indicated 0 1 · f'Xprcssed - is. if possible. to give effect to both. . . . 9. Ihid. Wht-n there are tw(l net:,; 0 1· pmy1i;1011s, one of whtch is special and particular and includ~s the matter in question. a!lti the othec general, which, if stanchng alone, would a!so inclu<~C the same matter and thus C'Onfl1ct with the specml act or 1wov1sion the special must he. taken as intf'ndcd to ·con~titute an exception 'to the g:>nci·aJ :\ct or provision. No-.embe!" 30, 1961 LAWYERS ITOURNAL Pai::-e 323 ment of guardians. This statement should be qualified by th~ effect borne of t he provisions that "Justices of the Peace in thP. =apitals of provinces and judges of municipal courts shall have jurisdiction &$ the Courts of First Instance to try parties chargeJ with an offense committed within the province in which the penalty provided by law does not exceed prision conecional or imprisonment for not more than six (13) years 01 fine no~ exceeding three thousand pesos (P3,000.00) or both x x x,llJ on the provisions gninting original jul'isdiction to try criminal cases in which the offense charged has been committed w ithin the respective l,erritorial 7uristliction of justices of the pe&.ce and judges of municipal courts.i I Before the amendment, the respective territorial j urisdiction nf the justices of the peace has been undei·stood to extend only over cases committed within the te!Titorial limits of municipality whcrf! they sit. Conversely, a just ice of the peace would have no 1 >owel· to try a case committed beyond the territory of the municipality whei·c he sits, the reason being that a ny exercise of jul"isdir.tion by a ju:-t1ce cf the peace beyond his prescribed territory is corant 11011 j11tlice :md \·oid.12 However, under ~he present law as mvdifie:l, ju°-stice~ of the peace courts of the capitals of provinces hi:..ve jurisdiction to try cases committed within the p1ovince where the imposable penalty does not exceed prision correccional or imprisonment for not more than six (13) years or fine not exceeding three thou,;anJ pesos (P3,00-0.00) er both irrespective of whether ihe tl"ial be on the mer its or me1·ely one preliminary to such trial before the Court of Fil'st Instance of the province. Therefore, if the case bo one triable by virtue of their a uthol'ity to conduct prelimin-ar:t1:wcst.1f!':ltions. said justices of the pe:ice courts have jurisdiction ' ''without regard to the limits of punishment x x x." This woulrl seem to be the correct view conside1·ing that since Section 10 (I f Rep. Act 2613 amending Section 87 par. 4 which int!'Oduces said paragraph with the words "Said justices of the peace' and judges l f municip:il courts '.'( x x·• did not qualify the first of its compound subject. to distinguish or dL~criminate between justices of the peace court<; of the capitals of provinces ~rnd the justi..:es o~ the peace 'cou!'ts of the municipalties other than the capitals of p r·o · vinces said phrase (justices of the peace) must be held to inclu<lc both kinds - Ubi l~x 1wn distinguit nee non di.stinguere debemw;. Henre, the provisions of Section 86 par. (a) of the Act which grants original juri;;diction to try offt:r,ses C<.'mmitkd within the resprc· tive tel'ritorial jurisdiction, should now be understood to have been '.'n:aq;ed at ]e;ist insofal' as the territorial jurisdiction of justices of the peace of capitals of provinces arc concerned. By Section JO of Rep. Act 2613, thl' original prnvi!l.ions of Section 87 were replaced. Now, the latter 1·cads: ;,Sec. 87. Original jurisdiction t'> try niminal cases.--Justices of the peace and judges of municipal courts of cha11ei·erl cities shall have original jurisclicti•m over: •-(a) All violations of municipal or city ordinances committed within their respective terl"ito1·ial jurisdiction; ·'(b) All criminal cases arising under the iaws relating to : "!. G:1mbling a nd management or ope,·ation or lottel'ies: '°'> Assaults where the intent to kill is not cha1·geJ or evident upon the frial: "3. Larceny, embezzlement and estafa where the amount of money or property stolen, embezzled. or otherwise involved, does not exceed the sum 01· vaJ·ue of two hundred pesos; ''4. Sale of intox!cating iiquors; ,;5 Falsely impersonating an officer; "6. Malicious mischiefs; "7. T respass on government or private property; "8. Threatening to take human life; and "9. I!legal possession of firearms. 10. Section 10 Rep. Act 26Ia amendin't Section 87 par. 5. ll, Section 86 pnr. (a) Rep. Act 296. 12. 5 1 C .. J.S. 83. ,;(c) All other offense except violation of election laws in which the penalty provided by law is imprisonment for not more than six months or a fine of not more than two hundred pesos, or both such fine and imprisonment; "Said justices of the peace and judges of munici pal courts may aiso conduct preliminary investigation for any offense ~.lleged to have bt'rn committed within their respective municipalities a nd citie:1, without. regard t 11 th~ limits of punishments, and may release, or commit and bind over any person charged with su,ch offense to securP his a p· JJearance before the proper court. "J ustice<: of the peace in the capit'lls vf provir.ce3 ai1 d .Juq:es of l\tuni<:ipal Ccurts :;hall have like jurisdiction as t he Court of First Instance to try pa1·ties charge:t with an offense committed within the province in which the penalty provided by law doc:; nClt exceed prision correccional or imprisonment for not more than six years or fine not exceeding three thousa11d pesos or both, and in th<> :1bscm1 of the distr ict judge, ::hall have like .iuri'ld:U:ti•Jll within the JJl'OVince as the Comt of Fit"st Instance to hea.ttJ)plicatio11 for bail. "All cases filed unde1· the next preceding paragrap!i with lJusticcs of t.he Peace of car itals and municiJ:lll wu.1 t judger, shall be t1·ied and decided on the mei'its by th<? 1esp(ctiv<' juslices of the peace or municipal jud~e.'!. PJ"Occcclings had shall be a1111rnlable direct to the Court of AppCals oz· the Supi·eme Court, as the case may be." By the amending law. the noticeable changes may be summe.l us follows: (u) T he t1·ansposition of par. (b) to (c) and vice versa; (b) The intl'Oduetion of par. (b)-9, adding to the list of of· fense therC'in enumerate(!, r:. charg~ of illegal !>OSSl';;<;1 on of firearms; (c) Violation of election laws have been inserted as an exception to the provisions of par. (c) which embraces :i.ll offeuses exclusively cognizable by justices of the pf'acc and municipal coui·ts; (cl) A provision giving to justices of the peace of capitals ,.f provinces and municipal coui·ts of chartered citie;; like authority as the Court of Pirst Instance over cr:mi'lal ca<;e~ the pe11ei:.y of which is limited to !ll'isior> co1·recional or its equ~v!l~ent or a fine net exceeding P3 OOfl.00 0r both committ-:id w!thin the province. (c) A provision introducing trial en the merits of the elaR'= of cases referred to above (par. 4 hereof ), the recording of the sam~ t.nd a direct ion that such cases shall be appealable to the Court of Appeals or Supreme Court. (f) The provisions granti:ig like j uiisrliction with the Court.'! of First Instance by :is!>ignment Clf cli~irict j!1dges to 1 Justic:es of the Peace of capitals of provinces to try pat·ties charged with !ln offense committed within the p 10vince in which the penalty docs not C;Xcetd imprison"'llf'l~I fot· two years and four months, or a fine of tw'l thcu:;:rnd pesos or both, have been legislated out, save their like juris<tiction with the Court of Fin;t lnstarce within t.hP prov· ince 10 hear applicat;·111s foi· bail. S:i'fe the foi·egoings all others have been 1 ·etained. On these: obsf'rvations, it can be said gcncrnlly, that tlw ju; i t-diction of inferior courts have been extended. However, whi!•· the jurisdict ion of justices of the peace and municipal courts over a ll vi•Jiations <)( municipal or city ordinances committed within thei1· respective tenitorial jurisdiction have b(.'Cn retained e'i toto, thei1 · 1 authority io t ry pa1ties charged with an offense punishnble by an ·mprisonment of not more thr-n six months or a fin<' of not more than two hundTcd pesos or both was constricted lo exclude therefrom violations of election law<; reg:w<tless of the 1>enalties. By fm·c:c Qf par. (c) Sectio~1 87 as amended, all offenses which lhi! law assigns a penalty of imprisonment f01· not mo:·e than i;i:\ Page ~24 LAWYERS \JOURNAL November 30, 1961 months or a fine of not exceeding P200.00 committed within the respective territorial jurisdiction of j ustices of the peace anti rnunicip:il courts of ch:irtcred cities are exclusively cognizable by them; otherwise they are cognizable by the Courts of First Im;· tance.11 In such cases the maximum of the penalty whether it be in the form of imprisonment or fine furnishes the test, and the foct that. the minimum punishment is within the justice's jurisdiction is immaterial.14 For insta11ce, if the imposable penalty for the offense is arresto mayor and a fine from 325 to 3,250 pesetas, a sum greater than P200.00, conviction thereon by n justice of the peace is null', for want of jurisdiction. 15 So aba, if i he imposable penalty for the 0ffense. is 11.rrC'sto mayor in its ma· ximum to prison correccional in its minimum period and/ or a fine not tixceeding P200.00 pesos the j ustice of the llt!l-\CC is without power to tr; the charge ev~n considering that the altemativc or conjuctiv~ penalty of fine imposed by law is within its power to impose. However, justices of the peace courts may not have jurisdiction over a casc when, althou).':'h the penalty prC!scrih~d by law is not more than six mont:is impri!'onment a11d 1wo hunJ1·cd peso1 finC!, the law pre;cribes an ad:titional penalty wh'c·1 the just;ce of the peace courts have no jurisdicticn to impose.•G According ly, it has been held where the accusc.I public official was charg<'d foi· estafa, flll offense punishable with the pcnn;ty d anr.sto mayor 9.lld the additional pen-.lty of temporary S!J('c:aJ disqualific:ition in its m:iximum degree to pc1 ·pctual special disqualification,17 or, where thi, 1 1ctitione1· was charged with a violation c-f Art. 155 par. (4) of the RC'vi.~c<l Penal Code which calls for the additional penalty of two ycu rs, four months and or>..: day of prision correcior.al for habitu:il dt!lii;quC!ncv 011 sir.Munt. n ~ t,?s two preYi<.>us convictions for the samf' offonse,18 or, where to impose the pennlty of ar1'e1<to mayo1· upon the nccuscd guil1y of sedu-0111g a m•nor, the additional penalty of certain civil obligntions which a re not really, in a strict sense, accessories of the personal penalty, such a s, the ack11owledgement and lhe i,.uppo1 t or the c-hild begotten,u the justic~ of the pcac,.. has no jurisdfrtion. But it has also been held that where the justice of the peace has jn risdiction ove!· the imbject matier a s the penalty for thC' offer.«~· brougi1t before him is within his jurisdiction pursuant to Jaw, said justice is not precluded from imposing subsidiary imprisonment ronsequcnt upcn the inability of the accused to satisfy his neci;•1· ia ry liabilities even when to do so would distend the penalty of imprisonment to o\·er ~ix mo11ths.20 So also. si.1re the pe.'aily of destierro is not a highe1 · penalty than arrcsto mayo1· for the icason that it is merely a restriction on one's libcdy of movc:ne;.t and net a l'omplete d~pri\'ation of such libf'rty, the imposition of the sam.e is \':ithin the exclus:ve jurisdict'on of tho? justice of the 11cacc to impoEe de.c;pite that it exceeds the terms of six months.21 And in another case 22 the ju1·isdiction of the jusricc of the pcor" has been conceded where it nrdered the confinement or a mil'<..?' delinquent in a reformatory for a period exceeding six months. With l'Cspcct to the provis;~ns of Section 87 par. (b) as n "lw :1mf'ndcd. justices of the pe11cc courts and mur.icipal judges of rh'l.•·. tned cities have exclusive jurisdiction OVI'\' all casc1 the natur" of which ar..:: of those spe,·ifically enumernkd and in\·olving a per.alty the l't•tm of which docs not excced the limits set out in pt.i·. ( d. Rut in thost; same e?.SC!s, said justices and judger, of mun·cira! cr u rh exercises the auth,.,rity tc t1·y thr sam<' coHclu·•·e;it\y with u . Section 4< 1 par. (f) J udicia ry Act of HM8. u . 31 Am. J ur. - 739. u. U.S. YS. Almazan and Martinez 20 Phil., 225. M, U.S. vs. Bornardo, 19 Phii., 265, U.S. V!: . Regala 28 Phii., 37; Pevple vs. Costosa. 40 Off. Gaz., 17th Supp. 147. 11. U.S. vs. F igueroa, 22 Phil., 2G 9. 18. Llobrera vs. The Director ')f P l'isons , G.R. No. L-3{lg4, Aug. 16. 1950. 19. U.S. \'S. Bcrnurdo, 19 Phil., 265. to. Peopl·J V f!. Caldito, Pt n!., 40 O G. 5522. t i. Ibid. 2t. Bactoso vs. Governor of Cebu, 2S Phil.. 25 ~he Courts of First Instance,2s where thP. imposable penalty exce-?ds t he limits set forth in par. (c)2' sin06! tha controlling basis for rnch jurisdiction lies not on the mcasur~ of the imposable pcnalt.y but upon the character of the offensr!,26 the imposition of additi~ nal penalty, such a$ habitual delinqucncy, notwithlitandin~.M However, tJ115 ruht has been qualified by jurililprudencq hotdin-r 1hat whP•'f> lo fry and determine a case either civil or criminal, the j ustice of the peace has k first decide title to real property necessarily im·o\ved thC'rcin, h~ ·h::.s no jurisdiction.27 So that, if a nimil,al i:ase be filed wilh a justice of the peace or muni~ipal judge for the offense of other forms of swindlin2' defined :ind 1111nish~d under Art. 316 of th~ Revised Penal Code par. (1) i::n:r. justice or jude-e is competent to try and hear it, hut where to rli .<:.o, he would hnve to first resolved t it\P t,., such real oronC!rfv. then ~iiid jur.ti:::P hu.<: no jurisdiction. It is well to note that in the foi·mer instance, th<' justice of the peace acttuired jurisdiction been.use ,.,f the 3rd par. of Section P:7 of the Act, but in tl-e latter it ""''Ii' not try the cnse though it wr.mld have had 11ndcr the n1 1ti.,.,.il•· wnfcrrcd to it in pars. (U), or (c) because it has to decide a question of t itle to real property which is within the cxc1m1iw rog-n;i;'lr>c,.. .,f the Courts of First Tnstnnce. Jn the snmc ._rPtlth. .1 just ic' l)f the rPacf' l)r municipal CC'llrt would have no inri:;dirliun to try IH"O!OC<'!Jtion~ ·unde r the pl'Ovisi,.,ns of the Anli·gr::ift Law (Rep. Act 3019), though the imposable penelty thcr<'in rn1; vided in cases of conviction, would have been wen within his com'Jl<'lence to impose. the statute itself providing tha, "all pro~"ll · lions unde1· t.!'iis Act" shall bl! within the original jurisdirtiof'! c.f the proper Court of First Instance.ZS H owever, it shoulcl be well to note that the jurisdiction gn m t· eel the justices of the peace and municipat judges of chartere,l cities over all criminal cases 11.rising under the laws !'elating V those cnumerntcd in paragraph (b) ~f Section li7, concurrentlr with the Cnul'ts of First Instance, refers only to ,•,,nsummat2d offenses. Where the offense ch:irged recites a mere attempt to commit estafa where the amount involved is P202.00 an amount exceeding the limit set forth m Section 87, par. (b) sebpar. (3), the judge of the Court of First I n~tance has no jurisdiction to try iL Th~· Supreme Court in upholding the jtu·isdiction ol the mun·e·r<\l cc.urt in this case, disregarded Snbsec. (c) (now sub.c;ec. (b) d~ch. r ing \}i:lt ··we f'houlcl not los<> 5ight of the fact that the offcnse;; 1 ~H:ntion".!d in !ia id subst'ction (c) refer to r.on111onmated nets ~ l"I\ 11ot me1ely to those that arc uttempted or frustr r.tt':d in natur'J." A differen: interpretation, it war. further i;aid, woulJ t!ivc 1 i.~e to t he incong ruous situation where while under subscetion (c) the 11ffcnsc docs not come with the juri:-;<liction ilf t~ municipa l cc\ll't bccau<<t' the value of the thing i;tolen ii; mora than f>'200.00 it at tl1e same time comes within its j urisdiction under subsection (b) becam;c the penalty involved is less than six months.2!l Under thei prior provisions of par. (b) of Section 87, w~.t express to read: "All offenses in which the penalty x x x." How('ver unUc1· the amendme11t it is 1iow worded: "all othe1· off~ns<:>s in which the penalty x x x." It is therefore obvious th:i.t it \\'R.S the intcn<:ion to limit the cases of ..:rimes that may be taken cognizance ,,f by the j ustices of the pcaCe and municipal cout1a to those sp:!· cified, never to any criminal cause n(1 t spe:ified - e:tvressio 1 u1iu.s est e:rcl1"8io 1 tlteriw1. F ollowing this 1casoning, it i:: conceded th11t justices of the peace of capitals nnd municipal courts of chartered cities, may determine all the cases enumerated therein under the a uthority conferred to them by the pi-ovisioni; of the 3rd. par. ol Section 87 of the present Act. B) the langua;,;c of the 3rd. par . .)f Section f 7 as amended by Section tO, of Rep. Act 2G13, justices of the peace of the capitals 23. P"!oplc vs. Colico XVI, L.J. 5l}fl. u. Ibid. 21 •. Pe:Jplc vs. Palmon G.R. No. L·28GO, May 11, 1950. 28. People vs. Blanco G.R. No. L-7200 \Jan. 13, 1950 21. Carroll & Bnllesteros vs. ParcMs, 17 P hil., 94. 211. Sectil)n JO, Rep. Act 3019. 20. People vs. Marita Ocampo y Pure C.R. No. L-10015 Prom. Dccembel' 1~. 1956. Novemh<!r 30, 1961 LA WYERS OOURNAL of provinces and municipal courts of chartered cities are ncrw authorized to try criminal cases to which the law assigns th ~ penalty of prision correcional or its equivalent and/or a fine not exceeding P3,000.00 committed within the province. This authority however, is not exclusive, but concurrent with the Courts of First Instance. Ju1·isdittion of such courts under lhis paragraph may bt cxe-.·ciscd by them over s~id cases not. 0nly when committed wi\;11in the territorial linuts of the capital of the pl'Ovince but also committed elsewhere within the province. The rnme proposiliC1n will hold true, where the capital of the province is at the <:amc time a city, but in chartered cities which a1·e not the capitals r.f the provinces where they are lccated, the jurisdiction of such courts extend only to c1·iminal offenses committed within the city limits. This would scEm to be th.? mcrtning C'lf the provision of the 3rd pa1·. of Section 87 when it provides: "Justices of the peace in the C(1pitals of provinces and judges of Municipal Courts sha!I have 1:ke j urisdiction as the courts of F'i1'St fo11tancc: to try parties ch:i.rgcd wit.h an offense committed 11,.•ithin the proi·ince, x x x." Had the law intended differently, it would have been easy for Con\or1·cs:; tc prn\•ide the same by merely saying "within ~he provinc.e or city, respectively" or by words of like import. More so, to entertain the idea that j ustices of the peace of the capitals •lf pro\•inces ma~ ..1ry cases committed within the territorial limits of the provinces without however conceding the same authority to judg1::s of municiJJ9.l courts simply because it happened that thti latter sit in cities whir::1 are also capitals, wouid lead to n ludicrous result. Precisely, the intent behind the amendment is to enlarge the jurisdiction of inferior courts in order to ease the clogging of cases in the Courts of First Insta nce.30 Considering further, that even Congress is well aware that most of the capitals of the provinces ar~ now cities, it may be assumed that Congress did not intend to discriminate between the territorial jurisdiction of a justic.e of th1• peace of the capital of a province and j udge of a 1r.unicipal courr of a city where such city is a\'so the capital of the province. Thereforti, under the present set up the justice of the peace of Pasig, !lizal. for instance. can take cognizance of a case of "homicide thru reckless impruJencc"31 committed in any municipality embraced in that prcYincc. And also, the justice of the peace of Mal'ikina, Hizal, for instance, may remand a case of the same kind, afte1· pi·eliminary inquiry either to the Courts of F irst Instance or to the justice of the peace stationed at Pasig, Rizal. Since the jurisdiction of j ustices of the peace of capitals and judgt!s of municipal court under the previsions of the 3rd par. of Section 87, is determinc1l by the penalty therein provided, it follows that the prevailing decisions limiting or qualifying the provisicns of par. (c) should be made applicable to them. Hence, justices of the peace of capitals of provinces and judges of ' municipal courts have no jurisdiction where to try a criminal cause, they would have to impose an additional 1 1enalty in certain cases, such as that cf habitual delinquency, or, to first resolve title to real property necessarily involved therein, or tc. require an accused to acknowledge and give support to the child begotten by him with a minor he had scduced.32 By the 4th par. of Section 8'/ as amt<nded, all cas.:=s filed with justice of the peace and municipal courts which may be tried by 30. " There arc now a number of cases that are pending anJ which cannot possibly be dispo11cd of by the prt'sent number of Judges of courts ot First Instance. Just tC'I s<!e the number of cases pending will convince anyone. There were 74.870 cases pending at the end of the year, last year (1958)." "While all the judges arc trying to do tt:.eii· best to di~pose of them, yet they cannot cope with the inc1·c-asing number of cases, which by the year a1·e increasing more than in the pal!t. "We propose to increase in this bill the jurisdiction of the justices nf the Peaec Courts." Ponencia del Sen. Paredes, p. 1497 to 1498 Cong. Rec. Vol. II, No, 58. 1959. a1. A rl. 365. Revised Pena l Code, )'!I.I'. numbered 2 :i.s amet!de'! by Rep. Act No. l 790. 32. S'Jpru - p. 11. them coneunently with the courts of First Instance "shall" be t ried oo the merits by the respective ju;;tices vr municip:tl jud~es, and tho proceedings therein had shall be recorded. By these is meant lhat when said courts acquir(! jurisdiction to try amt dccid..: a case of lhc natur".l mentioned in the 3rd paragrarh of &!<:tion 87 of the Act, as amended, to the exclusion of the Courts of Fil'st Instance, said courts, from the filing of the corres:~onding complai nt or informati;t11 beco:ue courts cf recont insofar as the C\l3C tiled is concern<'ri. Therefoi·e the procedure by whi,.h a criminal action is tried before the Court of First lnslance should be made U(lplicable, re~ording the p1·ocecdi11gs therein had from the beginning to end. Tile judgment to be promulgated !lnd entered in such cases should .;dso conform to the 1·equircmcnts of statin~ the facts . :rnd the laws applied ir. the decision which must be in Wl'iting, so that if an appeal is raised thereon, the Ccurt of Appeals or the Supreme Court, to which such appeals are made, may howl so>mething to appreciate. So also, in cases of appeals. the pioceduro followed for ap;wals frem the Courts of First Instance to the Court of Appcds or Supreme Cl)urt, ai; the case may be, should be adopted. The 4th par. of Se<'tion· 87 t.f the Acl as amended, begins with : '"All cases-filed unch:!r the n~t 1,,.eceding' parng-raph x- xx." F1om this is clear that only those case3 referred to in the 3rd paragraph 1hereof are i·nd :;hould be app~aled direct to the Court of Apr)(!a!s c>I' Supreme Court as the case may he in cases, where appeals arc iaised. This gi\•es r ise to th·~ further implication that where a ju!>t ice l)f ~he peace court of th".l capital of " province or a judge of :1. municipal court dccide11 n criminal rase pursuant to his authority uuder the cas~~ p rnvided in p:i.ragraphs (t•), (b) or (c) of Secticn 87 of the Act a s now amended, appeals shoulct be made to t he Cou11s of First Instance. This becomes even more obvious should w~ consider that in such cases the trial court is not a court of record. Thercfo!'e, whe:re the judgme11t appealed· from is <'ne l'Cndered fill any of the cases mentioned in par. (b) the ap1 Jeals should be b11.mght to the Courts of F irst Instance, even if the sentence th('rein imposl'.J m:1y well exceed the penalty of prisi<'n correcion:il or a fine of more than P3,000.00 01· both. Though in some of thes<! cases the justice of the peace and municipal judge may try and decide them concur rently with the Court of First Instance, the fact of mere ron('urrence, however, does not bring t hem within the application of the 4th pa1·. of Section 87 inasm.uch ns the phrase " All cases filed undel' the next pl'eceding parag raph" is clearly indicative of the legislative intent to c<1 t·er only the cases falli!I~ in thei r cogni~ance under said 4th parrigrnph to the exclushn of all the other cases. Because of the amendment distending the power of justices of the pt'ace cot:rts of capitals of provinces and judges of municipal, courts of chartered cities, far-reaching implications have ins.inuatcd, themselves into the field of procedure. A notable instanc? is the J"Ule to the effect that warrant of anest issued by the justice of the peace cannot be served bl' exe-c.uted outside his province unless the judge of the Court of First Instance of the district or, in his absenc-e, the provincial fiscal shall ce1·tify that in his opirdnn the interest of justice requires such service.aa Because of the nmendment it is now believed that in the cases covered in the provisions of the 3rd par. of S.:-ction 87, the namrd cou11s may issue wat"rants without the certification of District Judges or Provincial Fiscal, the se1 ·vice. of which may be affected within the Philippines. The consistency of this contention, it is submitted, J:es 4 heavily on the rule that when by law jurisdiction is conferred on a court 0 1· judicial officer, all auxiliary writ~, processes and other means necCS!>ary to carry it into effect may be employed by such (Ourt or .,fficer; a nd if the prondure to be followed in the exerci!le of such jurisdiction is not specifically pointed out by the Rules of Court. any suitable p roce:-1il or mode of proceeding- may [.)(' ~:1. Sec. 'I. Ruic 109. Rule~ of Court. Page 326 LAWYERS \JOURNAL Ncvember 30. 1961 adopted which appears most conformable to the spirit of said rulcs.34 Again, bcc~us<: of the grant to the justices of the p2ace or e::ipitals and j,1dgcs of municipal co,1rts of chartucd cities like jurisdfotio11 f!i< the Courts of First Instance, it can now be mid that in casce of conviction where an appeal is made therefrom, the defendant appealing may be admitted to bail, nnt as a matter of right but ut the discrcticm of the Court.. I r, lhf' same vein, since the dcfrndant must be pcrso1wl:y present at the annignment where the charge is for an offense within the jurisdiction of the Courts of F irst Instan«>,3& the snmc must be followed where the defen<!ant is chargr:d for an offense concurrently triable by the former and the latter courts under the provisions of the 3rd par. of Section 87, as amended. For the same reason, an a ppeal taken from a j udgmc-nt of conviction rendered by Judges of municipal courb or chartered C'itlc1; should be made within fifteen d3ys from the rem!it:ion of lhe j udgment appealed !rem, when the j udgment rcnderecl by said cou11.s is upon a case cognizable by both the Courts cf First In>i~nr.n• and judges r.f mu,nicip'll cou1·ts. This would · seem to be the mode applicable notwithstanding appeals from municipal courts bad been, by the respective city charters, made to be done within the da)• following the rendition or promulgation of the judgment, usually at 4 :00 o'clock or 6 :00 o·clock post meridian,3& for the reason that it could not be presumed that Congress intended that sn id city charters should prevail over a law yet to be made. And by. paralld reasoning, it may also be said that justices of the peace courts of ihe capitals of provinces and municipal courts of .chartered cities, when in the exercise of the jurisdiction conferred to them by the provisions of the 3rd par . of Section 87, as amended, l!l.:l) now be competent to net in a i:ummary proce<'dings for direct contempt under the provisions of Section 1, Rule 64 of the Rules of Court in like mnnner as the Courts of F irst Instance to whose proYince the impositic.n of a fin'! of not exceeding two hundred pesos or imprisonment not exceeding ten days or bot~, has been given. The consideration for this proposition lies on the theory that direct contempts bei11g as thty are remedias ancilbry to a principal cause should be deemed to be wit hin the sphere of the Court's cognizance, where the principal cause is by law vested in s11.id Court.!7 And, since no appeal lies from a decisiotl of the Court of First Instance in summary proceedings for direcl con· tempt or court,38 the same is submitted to apply with equal force upon a.n adjudication for contempt rcnd~red by justices of th<' peace courts of capitals of provinces and judges of municipal courts of chartered cities in the cases provided in 3rd par. of Sectir.n 87. The above a rc only my humble 01,ini-0n as there arc preeedents yet -On the matter. C IVIL The authority o! inferior courts to hear and decide civil cases under the 11ri'>r c.nactment was mC'asurcd by thf' value -0f the subject matter or amount of the demand, exclusive of the costs and intez·ests. Pursuant t-0 the t hen provisions of Section 88 of the Uudiciary Act of 1948, the limit wns set at an amount or value not exceeding !'2,00-0.00 exclusive of costs and interests. Under t he present rule, rhc vnlu~ of the subjcet m!l.tter or amount of the demand was fi xe<! at P5,000 0-0, exclusive of interests a nd costs. Outside of l i i:s 34 . Sec. 6, Ruic 124, Ibid. 3!>. Sec. 2, Rule 112, Rules of Court 36. In Rep. Act 537, as amended, a ppeals from a j udgment of conviction from the municipal cour ts of Quew n City should Le tnken befor..! the hour of 4 :00 o"clock post meridian of the foi lowing .!ay. In R~p. Act 409, as amer.ded. appfals from a judgment of r-onvictil-t: rcndert'.'d by a municipal juJJ:t"c should be p.;-rfccted the day iollowini.:- the rendit ion at (j :00 o'~!ock post mel"idian. .~i . The 1 icwer of l·ourt.i of justice, whl'ttie:-r -0f rccoi·d or not, to punish fo.- c.onlt!mpt is an incident essentia l to the exccut\on a nd maintena nce of judicial authority ( 12 Am. Jur. :l90) . 311. Pt'.lple v. AIJ9.ya, 43 Phil., 247 ; sum or value. justices of the peace or municipal courts of chartered citie:s arc without autho1 ·ity to act on ordinary civil actions, the power to take action there~n being vested exclusively in the Courts ot F irst Instance.39 And, in det<>rmining this value or the subject matte1· 01· dmount of said su it <n· that there arc ~everal claim!' or caus<'s of adion between the same parties emb:>died in the Sl\tne complaint, the amount of lhc demand shall he the totality of t!ic demand in all t he causes of act.ion, iricspective of whether the causes of action arose out of the same or different transactions; but where the claims or causes of action j oined in a sin~le c')mplaint a rc separately owned by or due to diffc1·ent part!es, each f::cparate eiaim shall fumish the jurisdictional test.~O The juri!;diction of justices of the peace courts obtaining und('t the provision~ of Section 88 of the Act before the amendment over assigned cadastral or la nd 1·egistration cases was also fixed a t rz,000.00 This is now fixed at P5,000.00. Beyond this value of contested lots, justices of the peace have no jurisdiction to hea1 ·• and dctenninc cadastral and lnnd registration cases assigned to them by the District J udge and approved by the Secretary of .Justice. Outside of these changes the ~m.·isdiction of inferior comts tinder the provisions of the Judiciary Law, as to all other matters, have been kept intact, save, as mentioned earlier, their authority to appoint guardians, generally. ~9. Sec. 44 par. (c) as amended by 8cc. 3 Rep. Act 261~ of the Judiciary Act of 1948. ~c. (a) In general, in an .:a•.tion in which the relief snught is a suu\ of money, the amount daime<l in good faith by plaintiff, the same being well pleaded. determines the 11mount in controv<'rsy for the purpose of determining the court's j ursidiction. This nmount is determined without rderence W any defense or pica set upon by the defendants, and is not determined by the proof adduced during the trial of t"l1e case or by the amount of the re<:overy. If the amount cluime<l is such as tt• bring the c.ase within the jurii:-diction of the court, such jurisdiction is not defeated by the fact that tho actual recovery is less than the jurisdictional amount; unless it appears that the ol'igina\ demanci was fictitious or fraudulent. (21 C.J.S., Sec. 50, p. 65.) (bJ Where there are s1:: .. ·cral claims or causes of action be· tween the same )>arties embodied in a single complaint, the juris· diction of the court depends, not upon the value or dema nd in each single cause or action, hut upon the totality of the demand in all the causes of action. In other words, "the amount Of the demand" means tho total or aggregate amount demanded in the complaint, irrespective of whether the plural causes of acticn constituting the total claim arose out of the same, or different transafti;Jns. This is the r•iling of the Supreme Court on t he matt<'!" a wl. makes obt>olete the contrary ruling made in Ge vs. Go, C.H. No. L-7020, June 30, 1954, wherein a distinction was drawn between a claim composed of several accounts arising from difCcrent transactions. and another which is composed of several accounts which arise out of the same transaction; and it was held that in the first case, the ainount of each account furnishes the test of jurisdiction, while in the second, the jurisdiction is determined by the total amount claimed. (Campos Rueda Corp. vs. Sta. Cruz Timber Company ct al.. G.R. No. L-6994, March 21, 1956.) (c) When two or more p!·aintiffs. each having separate and distinct demnnd, join in a single suit, the demand of ench. must be of the requisite jurisdictional amount. Aggregation of the claims to make up the jurisdictional amount is permitted only if the claims are of a joint nature, as when it is sought to enforce a single r ight in which plaintiffs have a common ~nterest. As American Jurisprudence puts it. •'Where several claimants hav'J separate and distinct demands_ against a ?efcnda~t or defc_ndants which mr.y propedy be Joined in a smgle SUJt , the claims cann'ot be added together to make up the required jurisdictional amount ; each separate claim furnishes the ju1·isdictional t~st." ( Hacknes v. Guarar.ty T rust Co., of New York .. 4 _Fed. Rules Srrv. 378; U.S. Circuit Court of Appeals Second Circuit, J an. 13, 1!)41 l 17 .F'. (2nd) 95.) Novembtr 30, 1961 LAWYERS lJOURNAL Pag» 327 UNITED STATES SUPREME COURT Advance Opinion (OPIN IONS OT•' J USTICES I N CHAMBERS) I ROGER S. BANDY UNITED ST ATES 5 L ed 2d 218, 81 S Ct - (No. 171, Misc.) December 5, 1960 SUMMARY An application for release on "pe rsonal 1·eco2'nizance" pending certiorari was denied by DOUG LAS, J., for the reasons stat<..'CI in headnote 5, infra. llilil and R ewgrJi:a11ce Sec. 6; Crimhwl Lr11v Sec. 16 .___:_ fre.:dom during trial. 1. An accused's traditional right to freedom duri ng trial a.nd pending judicial review has to be squared with the 1>0ssibility that he may flee or hide himself; bail is the device to reconcile theS<> -confiicting interests. (Per Douglas, J ., as individual justice.) Eail <rnd Recognizani;i: Src. Ii - 7mrpo:;r. 2. The puz·pose of bail is to insure the J cfcndant's appea1·~n,.c and submission to the judgment of the court, it being assumed that the threat of forfeiture of t•nr-'s goods will be an effective dcte:·n•nt tu the temptation to b1·eak the ccnditions of one's release. ( Per Douglas, a s im!ividua\ justice.) Bail <rnd Rec(lgnizani.:e Sec. 7 . .5 -- e~·cessive !inil. 3. It is unconstitutiomtl to fix ex.-:er-sivc bail te assure t hat a defendant will not gain his freedom. (Per Douglas, 'J ., as individHal justice.) Rail and Reco9nizm1ce Sec. 7 - riyht to rele"i<e. 4. An :.ceu2;.:d's right to releasf' durin2: tr:al and penrlin.; judicial review is heavily favored and the requirement of !>t!cul"ily fer a bond may, in a proper caS(.', be d ispensed with. ( Pt>r Doug-las. J., as individual justice.) Rail and Rewy-nizance Sec. 7 - hearing - i11di11id1wl jiisticc. 5. A defendant's spplication for r"!leasc on " personal recoi.tpjzance" pending certioi·a·d will be .!enicd by :m individual justice of the Supreme Court or th;) Unitul Stutes withflut prejudice lo an :i.r>plication to the Cotirt of Appeals or the District Cout1., where the full cou11. decidcd that the Court of Apptals should" he:u the accused's appeal. ( Per Douglas, J., as individual justice.) OPI NION Mr. Justice Do11glns. On previous application, bail was g ranted conditioned on the t iling of a sufficient bond in th,; amount of $5,000. Bandy v United States, 5 I. cd 2d 34, 81 S C! 25. Nt.w an app!icati<:n is made to me under Huto 46(a) (2) of the Federal Rules of Criminal Procedure for release on "personal recogniza nce"' pending ccrtio· rari. The application recites that the petitioner is unable to giVl' security for the prescribed bond. The f undamental" tradition in this country is that one chat-ge·! with a crime is not, in ordin[lry cil·cumstn11ces, imprisoned until after a judgment of guilt. Under Rule 46 a defendant has a right lo be ieleased on bail before trial, save in capital ca&:es. Pen.-J.ir.g review of a judgment of CQnviction, releas~ on bail may be allowed ·'unless it a ppears that the appt:a\ is Iriv<.lous or taken for delay." Rule 46(a} (:2J. S~ 350 US 1021, 100 Led 1530. This traditional right to freedom durine- t rial and pen!ling judicial review has to be squared with the possibility that the defendant may flee or hide himself. Bail is the vice which we have borrowed to reconcile these conflicting interests. "The purpl)Sa nt bails is to insure the defendant's appearnnce and submission to the judgment of the court." Reynolds v United States, 4 L ed 2d "Hi. 80 S Ct 30, 32. It is assumed t hat the tlireat of forfeiture of one's bOods will be an effective dl!!enent to the tem11tation to break the rvnditions of one's release . . But t his theory is based on the assumption that a defendant hus 111·opert.\·. To continue to demand 11 & ubstantial bond which t'he defendant is unable to secur e raiSt's consideral.lle problems for the e(1ual administ rntion of the law. We have held that an indi.f{f'T:t ckfendant is denied equal protection of thr~ law if he is denied an app1.~l on equal tci·m~ with other defendants, solely because of hif' i!1dia-e11ce. Griffin v Illinois, 351 US 12, 100 L ed 891, 76 S C'. 585. Can an indigent be denied freedom, where a wealthy man would not, because he does not happen to lmvf' enough prope rty to pledge· fo1· his freedom? It would be unconstitutional to fix excessive ha.ii· to nssu 1-e t hat a defendant will not gain his freedom. Stack v. Boyle, 342 US I, 9ti Led 3, 72 S Ct I. Yet in the case o! nn indigent defendant, the fixing of b::1.•l in Even a modest amount. may have the practi~:i.1 :::ffect of denying him release. See Foote, F0reword : Comment c>n the New York Bail Study, 106 U of Pa L Rev 685; Note, 106 U of l'a L Rev G93; Note U of Pa I. Rev 1031. The wrong don<" by tknyin!I releu:e is not limited to thc ,lenial of freedum alone. That denial may have other consequences. In case of reve rsal, Fie wi!I hu.ve sei-v.•d all or part of :l. scnlcnce und"' an er roneous judgml'nt. lm1>lison1:d, > l man may l:avt! t'O opportunit y to investigntl' hi:. case to coopHate with his counsel, to earn t he money that ·is !!till nt.>ce~sary fo1· the fuilest use of his right to :tp!Jeal. !11 the light of these co1111derations, I :ippro:u.h this application with the conviction that t he right to re\e:1se is heavily favored a nd that the requirement of security for the bond may, in a proper case, be dispensed with. Rule 46 (d) indeed provides that "in prop~r cases n<• secu1 ity m·ed be given.~ For there may ho other dctetTents to jumping bail : long 1esidence in a iocality, the ties of friends and family, the efficiency of modern police. Ali these in given case may offo1· a detf'rrf'nt at least equal to th:tt of the thr~at of forfeiture. Here, the Government has ndmitted that petitioncl"·s appeal is not friv0luus. It had no objection t(1 i·elease on a $5,GOO bond. But it does oppose release on an unsecured bond. It contend,g that there is a substantial risk t hat petitioner would not comply with t he conditions of his re!easc. Its showing in this respect troubles me. But I do not reach <l decision on the matter. Th{! Com·t today hold;> t hat the Court of Appeals should hear the i:ippeal. Hence I deny the application without p1-ejudice to an application to the Court of Appeals or the District Court where, at a l}earini;- on the matter, the facts can be better explored than at this distanc~. Pag<> 328 LAWYERS \JOURNAL November 30, 1961 II THOMAS AKEL, Petitioner STATE 01•' NEW YORK 5 L crl 2d 32, 81 S Cl - Jul)· 18, 1960 SU~f MAHY An application for bail pending I! proposed petition for ::erti.•r:iri to review a judgment of convicti<'n affirmed 1r. the Courter Appeals cf New York (7 NY2d !J98, Hlti NYS2d 5·10, 166 NE2d tl4) was denied by FRANKFURTER, \J .. for the reasons st:1trJ in the headMte below. L:fl·il f!fUl Hec-ognizonce Sec. 7 - 1n>ndi119 certiorari i11 S11prr. •1u; Court - federn/ q11e~tio11. A ju:stic1.: of the Supi·emc Court of the United States wil.l deny an appiic.ation for bail pending t\ petitioE !or certiorari to be fi\cJ Sl.>eking revi<!w of a j udgment of convicticn affirmed in t he highc&t l'Ou1·t of a statl:, where it 3ppc;-irs from the opposing affidavit that at no time in 1 he course of the 11rosecutio11 was a claim of a federal nature made, that the stat~ court did not certify that ~n;v federal question was presented to it, and that the remilitur below has not been amended so as to show tlmt in fact a federal claim was considered and rejected by the state court; und where the petition- for • udmission to bail, while claimin&' that a !cdCl"al question is to b<i 1 aised by the proposed petition for certiorari, doc!'I not a1lcge any facts contr&:dicting those stated in the opposing affidavit. ( Per Frankfu rter, J., as mdividu:!.I j11~t.ice. ) OPINION Ur. Justice Frank/11rtc·r, Associate Justice. T his is a motion to fix bail pcndin&" a petition for certior:iri to be filed seeking. revitm'" of a j udgment of conviction affi1meJ in the Court r>f A1:peals of New York (Ill l\l:i.rch ~-lo, HIGO. When a judge as solicitous as is Jud~ Stanley H. Fuld to safeguar:d. the interests of defendant in criminal cases denies an application for bail· pending n proposed 1>ctition for cert iorari to this Court on a claim of a substantial federal right, one naturally attributes some solid ground for sul'..h denial. To me this is found in the oppusing affidavit in which it is dcpos('d that at no time in the course of this prosecution was a claim of a federal nature m:ide, that the New York Court of Appeals did not certify that any fed era! question was presented to it, and that, 2\though af!irmance of the judgment of conviction was rendered on March 24 last. th·~ remitit.u'.r below has not been amended so as to show that in fact a federal claim was considered' and rejected by the New York Court nf Appeals. While the pet:tion for admission to bail' c\aitn3 that a federal question is to be raised by a proposed petition for cert i('· rari, it does not allege that such a federal question had been raised before the New York Court of Appeals nnd was there denied. Nor is U1ere any claim that the remititur was amended so a s to set forth that the Court of Appeals did in fact pass on the federal claim. The pompus old judge glared over the rims of his spectacles at the prisc>ner before him on a charge of vagrancy. He !ooki'd at the n"!port of the arrest ugain and asked rather scomh:lly, "Have you eve1 earned a dolla:- in your life?" "Yes, Your Honor," replied' the vagrant. " I voled for you ot the last election." Coronet, February, 1961 Noi· '.l~s the memorandum of the Court of Appeals affirming tlw l On~'1ct1on , 7 NY2d 998, 999, J9!) NYS2J 510<, 166 NE2d 514 , in sett.m g forth the arguments made by defendant Akel in that court il'c\ud~ the claim of a {~era! rig>ht. ' . In t~_is st~te ~l. the record before me I am compelled to deny had pcnc1mv, In~ filrng 'lf 11 petition for certiorari. III ROG ER S.· BAN Dy, Petitioner, UNITED STATES 5 L d 2d 34, 81 S Ct ( No. 171, Misc,) August 31, 1960 SUMMARY . ~n a pplication for bail pending disposition ot the appliC'a nt'f, ~:~~tl~~~~~lr i~e~~:~~l~tewl~s i:;r:~ted by Dou&"las. J., for the reaBail an.d RecQg11i:umce Sec. 7 - pending certiorari. ~· Although an application for bail pending disposition of the :ipphcant's r:ietition for ct:;rtiorari had be1<n denied by another ju~t ic~ of the Supreme Court of the United States, such applicati(ln wrll ~e grant<:d where the Solicitor GP-neral does not oppose the grant1~g of bail in the suggested amount and the issues aro ones on whrch there may well' be a division <1! views when the merits are reached. (Pei· Dougfa<i, J., as individual justice.) ApJ>eal and E-N·or Sec. 910.G - certioratri - wlum granted. 2. One of t~e te~ls of whether substantial questions justifyirg the gi·ant of cert101·ar1 by the 8 upreme Court of the United Sta~~11 '.ire p1 ·csented is whether the issues are one on which there may ,11e!l be :\ rlivision of views whl:n the m<'rits a re i·eached. ( Pc~· Dougl.ls, J ., us indivi1ual justice.) OPINION Mr. J ust icr Douyfos. An <tpplication ior bail pcnciing disposition of the applicant's !)Ctition fOI' ce1 ·tioral'i was denied by my Brother Whittaker O!l July 20, I!lGO. Application wa<; then made to me. In view of m · J;rothc~ Whittaker's denial I was molit i·eluctant to take cont:·ar~ aC'till1•. AC'cCl'dingly I asked tliat a r-esponse from tho Soliritoi· Genl'rd be rl:'questcd. In a letter to the Clerk • faled August 25, I !JGO, the Solicitor Genera l stated: ;,Jt ;., ~Y opinion that the petitioH and the recod pr.:>~ent !'l•bstantial questions of :·av.:. For that reason, and in view of the fact that the petitioner has beon incarcerated since \June, 1959, thl< Gcvernment c!oes not oppose the granting of bail in the suggesU-<~ amount of $5,000." My stud~ of the case lends me to the same conclusion. The :ssuc:: inc one 1-11 which tht:rc may wdl 1.Jll a jiviliion of "iews when the merits arc real'..hed. But that is one test of whether substantial questions 2re presented. S~c Herzog v United States, 99 I. eJ 1299, 75 S Ct 349. Accordingly I fix bail in the amount of a $5,000 bond to be approved by the U.S. District Court for the District of Nor th Dakota or a judge thereof. Upon such approval this b•,nd is to be filed with the Clerk of that Court. A la;vycr who was trying a case asked the witness, "Now, Mr. J unes, did you or did you not, on the date in question or at any other time previously or subsequently, say or even intimate to the defendant, or anyone else, whether friend or acquaintance or in fact a st ranger, that the statement imputed to you, whether just or unjust :\nd denied by the plaintiff w;s a matter of no mor,1ent 01· otherwise? Answer - did ycu or did you not?" The witness pondered for a while and .then said' "Did I or did I not wl:at ?" Coronet, Fehnmry 1961. ' Novembt<r 30, 1961 LAWYERS IJOUHNAL Page 329 SUPREME COURT DECISION George McE1itce, PlltintifJ-uppellonL, Perpetnu Mmwtol.-, f)eje11rl.11tl-<1/)1,{/lcc, C.R. No. L -14968, October 27, 19Gl, Labrador, J. 1. PLEADING AND PRACTICE; l\IOTIONS FOR POSTPON E].JENT OF THIAL AND N E:W T RIALS; CIRCUMSTANCES TO BE CONSIDERED I N CHANTI NG OR DENYING THE SAME. - Jn the consideration cf motions for po'>timncm:!nt of trids, i;.s well 35 in those fot· new tria~, two circumstances f,}10u t<l be tnkcn into :lccount by th~ court, n'\mcly, first the me rits of t he cuse of the movant. and ~econd, the rcnsonabl<'ncss of the postponement, the 1 ules pointing out. to nccidcnt, su1·prise Qr excusable neg!t"Ct a s !'casons thcrdo/'c. So, with 1·espect to the first circumstnnce the rules require an a ffidavit of merits, with respect to the second, a !1 n.ffidn.vit showing the acciGent, surp1·isc or ~Xcl;sablc :•eglcct. T here may bn an accid~nt, surprise or excusable r.eglect justifyini postponement {l l' reconsideration, but. if movant does not present a meritorious cbim or defer.gc, dcninl of his :notion for postponement may not be considered as ~n abuse of the discretion of th:! court. Note that discretivn is lodged in the p!'esiding judge, and this discretion should be used in considering th(' circumstances abov-.- mentioned. ~. ID.; ID.; S UDDEN ILLNESS OF COUNSEL; ABSENC E OF MEDICAL CERTIFICATE. - In the .·as(' at ba r. th(• ncci•J:::mt that had prevented appea nrnce of counsel for p!;,1intiff on the dr.y set for trii:.1 w!ls sudd1m illness. There l~Hty hhve bet•n 110 ce1 tificate •Jf illnes;i, but this ci1·('um.;tancc is explained by the •;udden appearance or aggrnvation of 'the illnei;s, rer.dering it inconvc.nient if not difficult. for counsel to secure the reQ.uired t·ertificate A illness. Accidents 01· illness, if sudden and unexpected, can not always be subject to n ce~ tificate; the ci r~umsh.nces ma~' render it imµOs!!ibt·e t(. !'ecurc in time the medical certiiicate i hat is needed, or tlw person making the affidavit may not be evailable at the time to prepnre opportunely the dfi<lavit cxplainins- the excusable neglect. 3. ID.; ID.; WHEN COURT RHOULD NOT BE TOO STRICT IN DEMANDING THAT ILLN ESS 01' ~ COUNSEL BE ATTESTED BY MEDICAL CERTlfo~JCATE. - Where plaintiff had askcri for postpom·ment of trial for the first time beca•1se counsel w:u ill, and inasmuch as his sickness is an accident that l·ould not ha~e been foreseen at the time of the trial, the court should not have been too strict ih demanding that illnt"i<S be attested b:v a medical certificate of a competrnt physician. -I. ID.; RliLES OF PAOCEDURE; TECH NICAL, AND RIGID E~FORCE MENT SHOULD NO'I' BE MADI;;, - Ru\.:s of 1 1rocc•iurc arr used only H• ht!lp .<:ecure substantial justirc. (Rulfl l , Sec. 2) If a technical and r igid enf•Jfeement of thjj rule:J is made, their aim would be defeated. In the case at bar, it ap1 iears that the rules which a rc merely secondary in import'.rnce are made to OV(.JTidc the ends of justice ; the technical n•les had bei.!n misapplie1! to the prejudice of the substa:1tial right of a party. l'edro J\Jugsalin, for the plaintiff-appellant. A ntonio Gonzflles, for the defcndnnt-appetlee. DEC I S I ON Appeal from a decision dismissing plaintiff's complaint and on orrier denying his motion for reconsideration and new triul in Civil Case No. 9742 of the Court of First Im~tance of La1;, '1ma. The appeal was originally take~ to the Court. of Appeals but was o .-.ndoi·scd to this Court for decision because the issuo raised therein is pu1·cly one of law. George McEntce filed the instant action against Perpetu& Manotok to recove1· the possession of a parcel of lan<t situated i11 Bunio Bangba ng, Los Bailos, Lagurrn. In his am~nded complaint dated Februa ry 2G, 1954, plaintiff substantially allegos that he is the registered owner of that parcel of Jund covered by Original Cel'tificatC! of Title NCl. P -5G with an a1·ea of 7 ,273 sq. meters, mon! or iess, which is located in the above-mentioned place ; that he acquired his title over the said land' by means (}( a free paten t grant from the Government in 1952; that he, personally and through his predecessor in interest, had been in actual, continuous and peaceful 1 >ossession over the same since 1926 until somet.ime in the month of November, 1952 whcm the defendant unlawfully entered and occupied the. northern portion of said land of approximately 1,000 sq. meters which is covered within the above-stated certificate of title; thtit the defendant also gathered and took the h:nvest of the improvements which he had introduced therein consisting of fruit-bearing trees and plants, and appropriated them for her own use and benefit- and that by reason or these allege<t illegal acts of defendant, plaintiff also claims to have suf. fered damages in the itmount of 1 >1,000 plus a similar sum for attorney's fees. On March 18, 1954 t he defenda11t answered the complaint setting up, among other things, the defense that plaintiff's free patent title was obtained' from the Bureau of Lands through fraud , .and misrepresentation ; that the plaintiff, either personally or thn1 his p1·edecesso1 · in interest, had never occupied and cultivated the land in question so as to entitle him to a free patent thereto; that he has not posted the conesponding notice of his application l.i.S required ~Y law; that he has not caused the same to be investigated by a land ins)lector, :ind if there ifl any investigation, he gave false testimony and caused the report to contain false findings; that the land in question is embrace1\ and' included in her (defendant's) prior and subsistinl{ Miscellaneous Lease Application No. V-194 of the Hure~u of Lands; and consequently, plaintiff arquired no free patent title or l'igiht over the same. By way of countEl'claim, dcfendant reproduced the above-material allegations as integral parts of said counterclaims, and prays that plaintiff's title be annulled a nd that damages amounting to P3,000 be .'.lward&d to her. Attached to the answer with counterclaim are the original a!ld sup;>lomental petitions to inval:date and annul plaintiff's title which the defendant filed with the Bureau of Lands :\!lei the or<ler of the DirecU:ir of said Bu 1 ·eau causing the investigation of <lefendant's chargcs which consist mostly of t hose dC'fenses embodied in the answer. [ 11 answer to defendant':; counterclaim, plaint iff specifically Cenicd its material allegations, and averred that his titl'e was secured by him through k:;·al proceeJings and afV .:r hn hnd complied with all requirements of the bw for its issuance. He also alleged that his tit!e over th'J land was acquirei:I for more thnr. one year already, hence it can no lon1=,"er be revoked or cancelled. Thereafter, defendant presented a moti'on for leave to fi)f' a supplement~) :!ns\vcr which wa~ granted by the trial court. This supplemcntai answer attaches the on!;?r cf .the D:1 ·ecto1· of Lan<l:<1 finding the charges of defendnnt. adverted to in the orig;nal nnLAWYERS (JOU RNAL Ncvembe1· 30, 1961 swer well f'lundcd. Plaintiff ir. turn submitted 1 1is reply contenciing that the order of the Direclor is not yet final and s!ill subject to a motion for rcconsidC!ratic.n, and the lame is also ar>pealab:e to the Secretary of Agricul!'ure and Natural Resom·i:cs. He further a lleges that said order was issued w ithout jurisdiction and, is, thcrefo1·e null and void. In t he mea11time dcfe11dant pruyetl for the issuance of a prelin1inary injunction to restrain the pla intiff from disturbing ht;r posscs11ion. After a preliminary hearil!g or. May 19, Hl55, the irial court g ranted the injunction. The trial court set the ca,,e for hearing on J uly 1, 1955 but the hearing was postponed as requested by d'efendant who claimPd that sho was goiug to take the bar examinations to be giv~n on August :if that year. The hearing was reset for September 8, 1955 but on this date, plaintiff's counsel, Atty. Bernardo Q. Aldana, failed to appear. Instead he filed an urgent petition for tra11sfor of sai1l hearing on the ground that he is seriously ill and it is physically impossible fol' him to travel on account of sa ici' illneis. This 1 ietitio11 was however, not verified nor was there a medical ce'rtificate attached. On defendant's ob'jection, the trial court denied' the motion for continuance and allowed the defendant to present her evidence ez vart.e. Said counsel, upon learning of this incident, move(\ but failed to have this order reconsidered. Several day$ later t he trial court rendered its decision dismissing plaintiff's complaint for failure to prosecute, i.e., absence of counsel, and making• the injunction previously issued permanent. Upon receipt of the decision, said counsel for plaintiff a~ked for its reconsideration and new trial on the ground that his iailmc• to appcs:- on the day of trial· was due to sicknesis which constitutes an accident or excusable uegligcnce to warrant the roopeninr: c.f the casc. Furthermore, he asserted the inddeasibility of hi:; !'rc:oe parent title which can no longer be cancelled by the Director d Lands, im•oking th(' case of Sumail vs:. Judge of Court of Firs1 Iustan('e of Cotabato, G .. R. No. L-827b'., April 30, 1955. The trial court d~nil.'<l this motion, so plm11tiff prosecuted this appeal to th~ Court of Appeals. Before th>? said appellaU> court, plainti!f-a'pJlf'llanl presented a new motion for new trial based on the s"me grounds p1eviously ;aised in the cou1·t below but this time he attached thcretc. t he fo\lo·wing a s annexes : fa) affidavit of the physician, Dr. Etigenio S. De Leon, who attended to the alleged illness of plaintiff's counsel ; (b) a photostatic copy of the permit from tl1e U nited States Anny for plaintiff's predecessor in interest to occupy the land in question; (c) a copy of the decree tor the iss:us11ce of a free patent by the Director of Lands: a nd (d) a copy of plaintiff's original certif icate of title issued by 1 he Register of Deeds of Laguna. In his brief, plaintiff-appellant contends that the trial eoul't N rcd or committed at least a gra\•e t:buse of discretion in denyin:i his urgent petition for transfer of hearing on September 8, 1!)5,-, and in not giving him an opportumty to present his evidence to support the complaint.. He claims that the failure of his former counsel (the lat.e Atty. Bernardo Q. Aldana) to attend said hnaring on that date on account of illness is an accident which coni;itutcs a valid ground that would entitle him to a favorable continuance of said hearing; and that this fact had been satisfaclorily explained by said coui1sel in his motion for recons:deration and new tria:. Thus, the late Atty. Aldana explained that although he had been skk for about a month he did not present. the urgent petition for transfer earlier because he hoped and believed that he will recover and get well before s:a id date, but unfortunately his ill!less, became more serious and ~m·h illnc:>i;, according to his att('nc\ing physician, would endanger his life, if he traveled by any means of transportation; that mid mot ion was not accompanied by a medical certificate because he was not able to contact his attending physician at the time he prepared it, and at any rate this defect has been cured or supplied by the affidavit of Dr. De Leon attached to the motion for new trial filed in the Cou!'t of Appeals ; that although said petition was not verified, the faet that it is the counsel himself who asks for the continuance due to his own iltness should have been given mel'it by the trial cou1 t and that said court should have taken and believed his word because it was made by the lawyer himself who is deemed to be an officer of the court. And to demonstrate the sedou~11ess of forme1· counsel's illness, thC' present counsei for plaintiff has manifested that. Atty. Aldana's illcess beeamc worse from September to November, 1955 nnd he was operated on the stomach for cancer of the intestines which f.ventual!y c.aused his death on May, 19Gfi. Furthern1ore, plai:itiff contends lhat he has a valid and meritorious C'ausc cf action aga.inst th(' defendant, the land in question' being covered: by a Torrens tit.le which has already become iJ\defcasiblc, and thnt he she-uld: have been respected in his possession. Hencc, he concludes that he wa.'> deprived of his day in court and should have been granted a new tl'ial because there is a great probability that the j udgment will he altei·e:I shouid he be al!c•wed to adduce evidcn<·e in his favor. On the other hand, t.he defend·ant-appel!ee contends that the trial cout't correctly dismissed the complaint for failure to prosecute on the part of the plaintiff, because the absence of plaintiff's counsel during the hearing is not excusable; that t he petition for transfer was presented only during the day of hearing w hen he could have done it earlier because he received notice thereof as early as July 25, Hl55; that said pdit ion was defect ive becauso it was not verified a11d was una·c~ompanied by a medica! certificate. He further maintains that the free patent title issued' in plaintiff's favor is no longer effective bccouse the Director of Lands has al, reaciy recomm<:nded its cancellutlon and the same was later a ffi1 ·med by th~ Secreta1·y of Agriculture and Naturnl Resources . The principal issue to be H:solvcd in this case is whether the denial of plaintiff's motion for continuance constitute an abuse cf C.:iscl'elior. which will entitle p!aiutiff to u grant. of new trial. In the considcrntion of motions for postponem-mt of t rials, as well as in those for new t rial, two circumstances should be tak:-u into account by the oourt, namely, first the merits of the case of the movant and second, the reasonableness of the postponement, t he rules pointing out to accident, surprise or excusable neglect as rea- , sons therefor. So, with respect to the firs:t circumstance the n;les require an affida vit of merits; with respect to the second, an affidavit showing ~he accident, sm·p:·ise or excu~r.Llc neglect. There may he ar. accident, i;urprise r..r excusable neg!P.<:t justifying postponement or reconsidet·ation, but if the movant <toe~ not present a meritor ious daim or defense, denial of his motion for post1>onement may not be considered as an a buse o'f the discretion of the court. Note that disc1·etion is lodged in the presiding judge, and this discretion should be used in consideri11g the circumstances above mentioned. Going no'" to the case at Lar, wr find that there was an accident that had prevented appearanC\3 of couns:el for plaintiff on the day set for trial, and that is, sudden illness. There may have been no c'-!rtificate of illness, but this circumstances is explained' by the sudden appearance or aggravation of the illness, rendering it inconvenient if not difficult, fo1· counsel ro ~ecure the requi1 ·ed ct'rtificut? of ill'l<'SS. Accidents O)' illness, if sudden and unexperted, ca11 not always be subject tO a certificate; the circumstances may render it impcssible to secure in time the medical certificate ihet is neede<l, or the person making· th~ affidavit may not be available at t he time to prepare opp(lrtuncly the affidavit exJJlaining the excusnble nC'gl•!cL In the case al bar, we a ls..1 find that while the defendant had been asking for postponement, because he was waiting a certain 1·esolution of the Lands Depaitmcnt, it does not appear that postponement has been granted at any time upon motion of the plaintiff. This fact is apparent frcm the record on appeal as well as from the decision of the trial judge. Since this was the first time that plaintiff had asked for postponement because counsel was ill, and inasmuch as his sickness is an accident that could not have been foreseen at the time of the trial; the court should not have been too s:trict in demanding that illness be attested b)· a November 30, 1961 LAWYERS \JOURNAL 3.11 medical certificate ot: a comp<?tcnt physician. Going now to the other circumstances, the mer its of the cau;:c of action of the plaintiff, lhe pleadings i;:how that the plaintiff has a certificate of title by reason of the grant of a free patent to l1im; that the land subject of the action is covcrl'd by the patent and the certificatp of t itle; and that the same land is in thP possession of the defendant. Not to allow plaintiff an opport unity to present his side of the case would certainly result in a clear in.iustice to plaintiff. As a matter of fact the decision in itself, which dii:misses the action of the plaintiff, causes him an injustice because by an error of the judge, plaintiff has been dep1·ivecl of the right to possess a certain portion of his titled property. The rourt reasons cut that a certain :·csolution of the Director of La~C.:> has cancell~d the certificat~ of title. That is a melter which shout! have been threshed out at the tl'ial or hea ring of the case. At this stage of the proceedings we must remind judge.; :i.nd counsel that the rules of preccdure are not to be applied in ?' very rigid, technical sense; rules c:>f. procedure are used only to help fCCUl"'C substantial justice. (nule I . Sec. 2) If a technical" and 1 igid l'.!nforcement of the rules is made, thf:ir aim would be defeated. In the case at bar, it appears that the r ules which are merely secondary ir importance are made to cvenide the ends 'Of justice; the technical mies had been misapplied to the prejudice of the substantial' right of a party. F or 1 he foregQing considerations, the decision and the pr01;;cedin£S in the ccurt below are hereby set aside and the case remanded to said court for further preceedings in acc.ordance herewith. No costs. Benaz<m, Padilla, Ba11tista .411.qcl<.>. Concepcion. J .IJ.1 .... Reues, P11re1lcs and n e Leon, JJ., concurre<L II Enriqite lca.~iano. PU1intiff-Appellcc vs. Felisa lCl1simw, Defen<lant-Appclla11t G·R. No. L-16592, Octoba 27, 1961, Concep<"ir;m, 'I. L COUN TERCLAIM; OI:.DER D!Sl\IISSING IT INTERLOCUTORY ; WHEN A PPEALABLE.- The orde1· granting plaintiff's motion to dismiss a counterclaim is inttrlocutory in 1111 turc and, hence, not appealable, until ufter j udgment shall have been rendered on plaintiff's complaint. 2. COMPENSATION; REQUISITES.- When all the requisites mentioned in Article 1279 of the Civil C'ode are present, compensation takes effect by operation of law, and exting'llishes both c!'l'bts to the conc~rrcnt amount, even though the creditors are not aware of the compensation. 3. COUNTERCLAIM; MAY BE SET UP TO REDUCE MONEY CLAIM BY P LAINTIFF.- Counterclaim may be set up, not so much to obtain , a money judgml!nt against plaintiff, as by w.:i.y :>f set-off, to reduce the sum colleclible by the latter, if successful, to the extent of the concunent amount ( M<'ore's Federal P ractice, Vol. I, pp. 695-6913) (See a lso Wisdom vs. Guess Drycleaning Co., 5 Fed. Sup!., 762-767). Ji1i111.e R. Nuevas for the plaintiff-eppellee. Jose W. Diokno for the defendant-appellant. DE C I S ION Appeal from an order o-f t.he Court of First Instance of Manila granting plaintiff's motion to dismii<'I defcncla1~t's fir'lt counterclaim ;ind dh,missinC" the laltt:r. 1'he facts :i.re simple enough. In his complaint, dated July 31, 1959, plaintiff Enrique lcasiano sought to l't!Cover P20,000, plus interest and attorney's fees, from th<? defendant, Felisa Icasiano. Within the reglementai-y pei·iod, or vn NovembC'r 9, 1959, the latter filed 11n 11nswer admitting some allegat ions of the complaint denying othe:- allegations thereof and setting up special defenses'. :>s well us two (2) counhrclaims - one for the sum of Pl 50.00 allcgc:dly borrowed by plaintiff from the dofendant, and another fo1· moral and exemplary danw.i'Cs, attorney's fees and expenses of litigation, allegedly suffered and incurred by the defendant in consequence of this suit, in such sum as the court may find just and reasonable. On November 17, 1959, 1 1laintiff moved (a ) to dismiss tl~e first counterclaim; (b) to strike out paragraph (2) of defendant's answer; ::.nd (c) to set the case fot· hearingi on the merits. Despite defendant's objection thereto, on December 7, 1959, the !ower ~ourt grantca the first prnyer, deni-:!1 the second prayer and set Lhc c&se for hearing on u stated date. Notice of the order to this effect was served on the defendant on December 17, 1959, who, three (3) days later, filed her notice 0-f appeal and appeal bone!.. Plaintiff cvtrnte1·ed with a motion to strike out defendant's appcat "in so far 33 said notice refers to the H etting for hearing of the abevc cntitlcC case on \January 7, 19GO, at 8:30 a.m., for the simple l"(;ason that snid order, in so far as it sets a ctate for the hearin; CJf the above t:ntitled case is intcrloeut('ry and, therefore, not nppealal>le, and for the further reason that the intended appe-al from r.aid setting order is plainly frivolous and interposed only for the purpose of delay". This motion was denied in an order dated Deci.'ml>er 19. 195it, which a llowed defendant's appeal "from the order of D<.-cember 7, 1959, ins~far us it 01·ders the dismissal of defendant's first counterclaim, and !:letting the hearing. of this case on January 7, 1960, at 8:30 a.m."' Upon denial by the lower court uf pla'.atiff's motior. for re,.,.onsidcrati.:m of its last order , defcndtmt fi!c:I h~r record on appeal, which after its amendme11t, wa~ o.pprovcd "there being 110 opposition thereto." Sometimes after the transmittal' of the amended rec.ord on appeal to this Court, or on Febniary 4, Hl60, plnintiff file:t a motkn to dismiss the appeal upon the g·nmnd that defendant's ."\pJ;eal· '•from the order of the trial court dated D*".cember 7, 1959, dismissing her fiJ'St counterc!uim is manifestly and palpably frivolous" 2-nd that her ap!)cal from said order insofar :i.s it set the case for hearing i'l" "ostensibly dila~ry, asidfl from the fact that such setting order is intc1 locutory and, therefore, not immediP.tely appealable". This motion was denied by a · resolution of this Court dated Februa1y 17, 1960. We, likr-w:s:e, denied plaintiff's motion for reconsideration of said resolution. The main issue in this appeal is whether er. not the lower court erred in holding itself without jurisdiction to enteJ"tain defend· 1rnt's f1 r~t counterolaim. Before passing upon the merits of such question, ;t should be noted, however, that t.he order granting pl::i.intiff's motion to dismiss said counterclaim is interlocutOl'y in nature, and, hence, not appealable, until after judgment shall have hren rendered on plaintiff's comptaint (Cuano, et a!. vs. Monteblanco, ct al., L-14871, Apr il 29, 1961; Villasin vs. Seven-Up Bottling Co. of the Philippines, L-13501, April :!8, 1960; Caldera, et al. vs. Balcueha, et al., 84 Phil". 304) . However, plaintiff did not object to defendant's appeal from said order, except insof ar r.ml11 11s ie set the case for h.roring. Jr, other words, it acquiesced to said appeal as reg-ind the dismissal of the aforementioned" counterclaim In fact, plaintiff interposed no objection to defendant's amei:ided record on appeal. Hence, even if the lower court should have disupproved it, for the reason that !<ni(I r.rdcr of dismissal is int.erkcutnl"y in c haract~r, its order approvinqthc amended rcrord on appeal eutailed, at moi:t, ~n error of judgment that does not affect our jurisdidion k C'ntertain the appeal (Gat111uitan v,;. Medina, L-14400, August 5, 1960; Salazar vs. Salazar, L·U823, April 29, 1953). It may not he amiss to add that the a llegation in die motion, filed by plaintiff with this Court to dismiss the appeal, to the effect that the same is frivolous insofar as it ~eeks a review of the order dismissing defendant's first counterclaim, has no merit, not only bEcause a party can not be barrefl upon such gTound: from appealing by wJ"it of error, but, also, because W(! find that the lower court had erred in issuing the order ~omplained of. Indeed, regardless of whethe!' the court ·of first instance may entertain counterclaims for less than PS,000, it must be noted that Page ~82 LAWYERS ITOURNAL Ncvember 39, 1961 Articles 1278, 1279, and 1286 and 1290 of our Civil Code read: "ART. 1278. Compcm,ation shall take place when two persons, in their own right, arc creditors a nd debtors of each vt.her.'' "ART. 1279. In order that compensation ma y ~ proper, it is necessary: ( l ) That each one of the obligors be bound principally, and that he be at the same time a principal creditor of the other; (2) T hat both debts consist in a sum of money, or if the things due arc consumable, they be of the same kind, and also of the same quality if the latter has been stated; (3) That the two debts be <Inc: (i) That they he liquicl:ltcd .:tnd dcmandablc; (6) That over neither of them th•·rt' be any retention or controversy, commenced by third persons and conununicated in due time to the debtor." "ART. 1286. Compensation takes place by operation of 2. ID. ; VF.NUE OF CRIMINAL COMPLAINT WHERE LIBEL JS CIRCULATED JN PROVI NCE OR CITY WHERE NEITHER OFFENDED PARTY NOR OFFENDER RESIDES.- Petitior.er here maintains that even if t he justice of the peace com·ts have jurisdiction to conduct prelimin:uy invl:!stigations, the Hnue was improperly laid in Bohon, because neither the complainant nor the defendant. resided there. Article 360 of the Revised Penal Code as amended by Republie Ad 1289 provides that where the libel is published or circulated in a province or city wherein neither the offended pa~i:y nor the offender resides, the action may be brought therf'i;i; and the complaint herein questioned, a!kges that the libel h!l.d been pubfishctl and circu/a'tetl in B obm1 and other ttmnicipalilies of Samar. Bohon and Sama1·, therefore, constituted propct· venue. DEC J SION On April 20, 1959, Amancio Balite, filed with the justice of the peace court of Bohon, Samar, a criminal complaint for libel law, even though the debts may be payable at different places, against Delfin Mcrcader. After making the preliminary examinbut there shall be an indemnity for expenses of ru.:changc or transportation to the place of payment." "ART. 1290. When ail thf' requisites mentioned in arti,.le 1279 are present, compensation takes effect by operation of law, and ru.:tinguishes both debt:;; to the concurrent amount, even though the Cl'editors and debtoi·s are not aware of. the compensation." Pursuant to these provisions, defendant would have been entitled to deduct from plaintiff's claims of P20,000 - if the latter were established - the sum of Pl5G involved in her first counterclaim, if the al.ego.lion thereof were ti·ue, evc11 if no srtch co1rnterclaim had be~m set up iJ1 he1· answer, for "when all the requisites mentioned in Article 1279 a1·c present, compensation takes effect by operation of law, and extinguishes both debts to the concurrent amount, even though the creditors and debtors are not aware of'" - and, hence, did not plead - "the compensation''. Moreover, it ls dear f1om the reco'rd before us that said eounterdaim was set 1111, not so much to obtain a money judgment against plaintiff, as by way of set-off, to reduce the sum collectible by the latter, if successful to the extent of the ::oncurrent nmC'ur.t (Moore'!! FedNal Practice, Vol. l, pp. 69&-696) (See, also, Wisdom vs. Guess Drycleaning Co., 5 Fed. Sup!., 762-767). WHEREFORE, the order appealed from is hereby reversed, insofar as it dismisses defendant's first counterclaim, and the case, is, accordingly, remanded t<i the lower court for f url.her pr<>c:eedings, not inconsi!>tent with t his decision, with costs ag:.i.iust plaintifi-appellee, Enrique Icasiano. IT SO ORDERED. Bengwn., C. J., Pridil!a, l1•rntistr1 Aliyrlo. f_,rtbnulor, J.IJ.l. Reyes, P4redc8 mul De l-1'011, JJ., concuri°1!d. Bar-rtra tin<l Di::ou, JJ., to::ik no part. Ill Delffo Mercader, Petitioner, v11. Hon. Frrrncillc.J Valila of the J1111tice of the Peace C'ou:rt of Bobon, Samar and Amancio /Jnlitt;, Respondents, G.R. No. L-16118, February 16, 1961, BengZ<Yn, J . 1. LIBEL; VENUE FOR CRIMINAL ACTION A ND Cl\°!L ACTIO N FOR DA!>.IAGES.- The riimina\ and civil act!ol" for damages in cases of written defamations shall be filed simultaneously or separately with the Court of First Instance of tho province or city where any of the accused or any of the offended parties resides at the time of the commission of the offense. Where the libel is pt:iblished, circulated, displayed or PXhibited in a province or city wherein neither lhe offender nor the offended party resides the civil and criminal actions may be brought in the Court of First Instance thereof. (Art. 360, Rev. Penal Code, as amended by Rep. Act 1289). ation, the judge issued the corresponding warrant of a rrest. The accused moved to dismiss for lack of jurisdiction and cause nf action. Upon denial thei:eof, the accused filed in September 1959, this petition for certiorari, based mainly on the alleg-ed want of jurisdiction of the aforesaid inferior court. In ordinary l'ircumstanccs, the petition would have been Cif;· missed, witho1.:t prejudice to its presentation before the local eom-t o! first instance. But at that time then• were pending before this Tribunal some cases involving the jurisdiction, or lack of jurisdi"~ 1 ion, of justic<:f; of the peace over e;·iminal libel, in the light of llepublic Act 1289, ap1>roved .lune 15, 1955.(1) So, we gave due course to this petition. In his answer, the respondent judg(' <!Xrlained that he had taken cognizance of the case for purposes of preliminary investigation. I n fact, he stated, as the accused h~1d failed to attend the hearing, and there was prima facie evidence, he fonvardcd the exvediente to the •_·e>urt of first instance for the · trial on the merits. The controversy is thus reduced to the question whether the infet'ior coul't!: may, after the passage o! Republic Act 1289, ent:::rt11in cnminal eompl<lints for written defamation, not for trial on the merits, but for purposes of preliminary investigation. It is cnntcnded by those who would deny such authority, that Republic A rt. 1289 had the effect of depriving justice of the peace court'! of their power even to conduct preliminary investigations b the m:;i.tter of libel or written defamation. 'fhe question has been decifled in the affirmative in People v. Olarte, L-13027, June 30, 196fl. Tllrough Mr. Justice Concepcion, this Court said: "Can we justly hold that by fixing for said offense' a penalty falling under the original jurisdiction of courts of fir!lt instance, the framel'S of section 2 of Act No. 277 had cYince:t the intent,, either to establish an exception to the proviskn= of Ad No. 194, authori2.ing i:very ju~tice of the peace, to mo.lie pn~limina1·y investigation ~if any crime ali"eia-ed to have het:n committed within his municipality, jurisdiction to hear and determine which is by Jaw x x x vested in the judges of Cou!·ts of First Instance,' or to divest justice of th<! peace Of such authority, as regards the crime of libet?" (') Amt>nding Art. 361} of the Revised Pen:il Code to read :i~ follows: "x x x The criminal ar.d ci~·il action for dan~nges in cnee;:: of written defamations as provided for in this chapter, shall be <ile<I !.;imultaneously or Sf'parate\y with the Court of First Instanc~ of the province or city where any of 1 he ro.ccl!.;;eJ or :my of the "ffcndect pai·ties resides at the time of the commission of the offense: Prnvidecl, however. that whertJ the libel is published, circulated. <lisplayed or f'xhibited in a province or city wherein neither the offender nor the offendc>d party resides the civil and criminal adions may ~ brought in the Court of F irst Instnnct! the!'eof. x x x." November 30. 1961 LA WYERS \JOURNAL Page 33f.s "It is ob\'10us to us that such inference is unwarranted. To · begin with, there is absolutely nothing in Act No, 27ri' to indicate the aforementioned intent. Secondly, r.'.lpea1 or amendments by implication are neither presumed nor favored. On the contrary, every statute should be harmonized with them. Thirdly, the jurisdiction of courts o! first instance to hear anrl determine crimina l· actions within the original jurisdiction thereof !s far from inconsistent with tho authority of justices of the peace to make preliminary investigations in such actions. What is more, this authority has beC\n vested to relieve courts of first instance of the duty to hear cases which are devcir! of' probablo cause, thereby paving the way for the effective exel"cise of the original jurisdiction ol' said courts and expc:!itious disposal by the S!l.me of criminal cases which a1·e prima facie meritorious. x x x." ''Jt is apparent, from a 1 >erusal of the t hree (3) provisions aforementioned, that the !rnmers of Article 360 of the R~vised Penal Code intended "to introduce no substantial ch!lng<> in the existing Jaw, except as regards venue, and that, in all other respech, they meant to preserve and continue the status quo under sections 2 and 11 of Aot No. 2117. ~heh. was, n!i:io the purpose of Congress in passing House Bill No. 2695, whir.h eventually became Republic Act No. 1289." The Bohon .iustice of th~ peace has thus al'led within hie Samuel A. Arcamo, J ustice of the Peace of Malangas, Zamboanga q"el Sul", Ong Peng Kee and Ad£:lia Ong. Petitif•llCr Petru Carpio Vdu. De Camilo, had been by herself and predecessors-in-interest in peaceful, open and adverse post-t:ssion of a parcel of public foreshore !and situated in Mnlangas, Zamboanga de! Sur, containing an a rea of about 400 square meters. A commercial building was erected on the property which was declared under Tax Dec. No. 5286 and assessed at P7,400.00. Rrropondent Ong Peng Kee was a !£:ssee, of one of the apartments of ~aid commercial building since June 1, 1957. On August 1 1957, Arthur Evert Bannister filed an unlawful Uctuincr case against both De Camilo and Ong Peng Kee (Ch-ii Case No. 64) wit!-1 the JP of Malangas. For failure of Bannister and/ or counsel to appear at the trial they were declared in default nnd Pl00.00 was awarded to De Camilo on her counterclaim. The motion for reconsideration presented by Bannister was denied. T~e other petitior:crs, Severino Estrada, F elisa, Susana , Antonio and the minors Isabelo, Rene and Ruben, all surnamed Francisco, the said minors represented by their mother Susana, had also been in possession (in common). peaceful, open and adverse, sinrc 1937, of a parcel of public fore.~hore land about 185 square metei·s which is ~1djoining that lali.d occupied by de Camilo. On this parcel, o commercial building assessed at Pl,000.00 was ne~ted by th~ Francisco's, and had the same declared under Tax Dec. No. ·1911. On Septemher 1, 1957, the two commercial buildings were hurnpowers, and this pelition will have to be dismissed. Petitioner here maint.:i.in3 that (.\'en if \he justice of thc €d <lown. Two weeks thereafter, l"espondents Onq Peng Kee anr! Adelia Ong, conslJ"Ucted a building of their own, vccupying abo11t 120 squa1<' meters. T he buildmg, howevel", was so built that portions of the lands previously xcupied by petitioners (De Ca'lli l~ and the Frimciscos) wcrC' encroached npon. pence cou.rls have jurisdiction to conduct prelimir.ary investigations, the vcm1e was impr?pei·ly laid In Bobon, bt>cause neither th: t·vmplainant nor the defendant resided ther<'. The statute(2) prnvides th:i.t whe1·e the libel is published or ci1 cuJated in a province or city wherein neither the offended party nor t he offender r esides, the action may be brougt.t therein; and the complaint herein questioned, alleges that the libel had ht>t:n published and ci-rculated in Bobon and other municipalities of Sam(lT. Bohon and Samat, therefore, constituted a prope::- venue. Petitioner's last contention that the complaint stated no eau~e flf action, may not be considered now. It. is unimportant in a Cl"I'tiorari proceeding, specially because petitioner has the remedy of diScussin~ the issue before the court of first instance, and then if a fter hearinK he is conYicted, to appeal in due time. Petition dismissed. ~o costs. Padilla, Bautista .4 pqelo1 Lrf>ra•/or, Cuncepcioi,, J.B.l... Reyes, Earrera, Paredes and Diz{)1?, ./J., concurred. IV Petra Carpio V!la. d6 Ca1nllo 6t al., Pf,ltitioner•-wppelle.e•. VB. The Hon. Justice of the Peace Sa?f1,1tel A. Arcp.1no1 Ong reng Kee <rnd Adeli.p. Onf11 Re~p~nc.ients-uppellants, G.R. No. L-15653, Sep· tembe.-r !!9, 1961, Pwedes, J. INTERPJ-iEADER; WH~N JU:-iTICE OF THE PEACF. COURT HAS NO JURISDICTION.- The complaint asking the petitioners to iriterplead, practically took the case out of the jurisdiction of the I.JP court, becaus~ the action would then necessarily "involve the title to or POSS<!Ssion of real property qr aqy interest the1·~in" O\'er which thl' CFJ has original jurisdiction (par. [b], S<'C. 44, Judicia:·y Act, as amended). Then also, ttie subject-matter of the complaint (interpleader) would come under thl! original jurisdiction of the OFI, because it would n<Jt be capable of pecunia r:y estimation (Sec. 44, par. (a], t.Tudiciary Act), there having bcftll no showing that rentals were asked by the petitioners from respondents. DE C r SJON This appeal stemmed from a petition for Certiorari and Manclamus .filed by Petra Carpio Vda. de Camilo and others, agai?lst (2) Quoted in the margin, s1wn1. Under date of December 3, 19C.7, De Camilo filed a Civil Cao;I' No. 78 for Forcible Entry against Ong Peng Kee nnd Adelia Or:gwith the JP of Malangas with respect to the portion belonging to her wherein the building of Ong Peng Kee was erected. On A1:gust 8, 1958, Severino Estrnda and the Fn!.nciscos filerl a similar case (No. 105). Jn answer to the complaints, the defendants (Ong Peng Keo and Adelia Ong), claimed that th(' land whe-re they constructed their building was leased to them by the Municipality of Malangas. Pending trial of the two Ct.SC!J, thfl rcsppn4cnt Ong Peng Ke::: .1r.d A1clia Ong filed a complaint for l11terpieader :-:gninst De Camilo. SeyerinQ Estrada, thti franciscos 1 Arthur Evert Bannister, the Mayor and Treasurer of ?ofalangas (Civ. Case No. 108), alleg-;ng tl)p.t the filing of the three cases of forcible entry (Civ. Cases No.<>. f.41 7a and JOG). indicated that the defendants, (in the Inte?·pleader) had conflicting interests since they a!l claimed to be er.titled to thl" possession of the lot in question and they (Pfng Ke~ and Ad~lia). rould not determine without hazard to themselves who of the defendants wa3 entitled to the 1mssessiM1. lnterpleader plaintiff'! fut·ther a!!cged that they had no interest in thl" property other than as mere lessees. A motion to dismiss .lhe Complaint for Interplcader was presented )ly the defcndan:s ti1erein (now petitioners), con.tending tha.t (1) the JP tia4 no ju1·isd!ction to try and to hear the case: (2) There were pending other actions bei')\tC'En the parties for the same cause; and ( 3) The complaint for Interpleader did not state a cause of action. Peng Kee and Adelia registered their opposition to the motion and on Septembc1· 30, 1957, respondent Justice of the I'£:ace denied the motion to dismiss and O!'<lered the defendants ~here in to interplead (Annex D). The two forcible entry casc-s were disnlissed. The defendants (now petitioners) instituted th<' present proceedings, for ccrtforari ltn<l manda11ms before the Court of First Instance of Zamboanga, claiming that re<;pondent JP in denying tl-c motion to dismiss acted without jurisdir:tion, and for having given <lue course to the complaint for Jnterpleader, the respondent JP gravely abused his discretion, and unlawfully neglected the perPage 234 LAWYERS \JOURNAL Novo~r 3(!, 1961 !ormauce of an act which was specificnlly enjoined by law, and fo1 which there was no plain, speedy and adequate 1 'E.medy in the 01·<:inary course of law. The Answer of respondents which contaiJw1I ~he usual admission and denial, sustained the confrary view. The ("Fl rendered judgment, the dispositive J")Ortion of which reads: :" IN VIEW OF THE FOREGOING, the Court hereby decla·es the \)ustice of t he Peace Court of Malangas to be without jurisdictio11 to t ry the case for interpleader and hereby «et!' asid ~ its Order dated September 30, 1958, denying the motion to dismiss the interpleader case; and consiclering that Civil Cases 78 a nd 105 have long bce!1 pending, the respondent J ustice of the Peac~ of Malnngas is 11ereby ordered to proceed to try th> same, without pronouncemen~ as to costs." The only issue raised in the present appeal is whether or noi the Justice of the Peace Court has jul"isdiction to take cogniza1H'.f'" of the lnterpk ader case. The petitioners claimed the possession of the respective portior. cf the lands belonging to them <m which the l"<!spondents had erect.~ their house after the fire which destroyed petitioner-appellants' buildings. This being the ms~, the contention of petitiOncrs-app-"1 - :ant.s thut the complaint to i11ierpleo.J, lacked cause of action, is Section 1, Ruic 14 of the Rules of Court provides - .. lntetpleader when prc•/•er.- Whene,•er conflicting doims upon the ioame subject-matter a rr nr may be made against a p<:rson, who c!aims no intel"est whatever in the subject-matter, or nn interest which in whole or in p&.rt is not disputed by tho· :mts to C":.Jmpcl them to in~Erplcad ;md litigate their seve~·al cluims among themselves." The petitioners did not have conflicting C'laims a1;pmst the resr}ond(:nls. Their respective claim was separate and distinct from tilt: l>ther. De Camilo ~nly wanted the resp:-rndents to vacate that Jlf'I"· lion of her property which was el"!croachcd upon by them when th~~· l'rect-Jd their building. The same is true with Estrad2. and th" _Fr:li.Dcucns. _.They- claimed possession of two different parcels of land, of different a reas, adjoining each other. Furthermore ii iF r:ot true that respondents Ong Peng· Kef' and Adelia Ong dirt nf't have any interest, in the subject matte;r. Their interest was th" prolongation of their cccupancy or possession of 1}-,e portions e'lnoached upon by them. It is, therefore, evident that the requirements for a complaint of Interpleader <Iv not exist. Even in the supposition that the c('mplaint presented a cause of action for lnterplcader, stilt we hold that the JP had no jurisdiction lt. take ccgniZUTJCE: thereof. The t·omph1.int asking the petitiol'.<lrS to interplead, p1·actically took th!! case on: of the jurisdktiO!l of the JP court, because the action would then necessariiy ' '111volve the title to or possession of real p!'opcrty or any interest there· in" ove1 · which the C 1' ~ 1 has original jurisdiction (par. (b]. sec. 44, Judiciary Act, as amended). Then also, th<' subject-matter of the complaint (interpleader) would come under the original jurisdicticn of the CFI, because it would· not be capable of pecuniary estimation (Sec. 44, par.[a], Judiciary Act), there having been no shCowing that rentals were asked by the petitioners from respondents. IN VIEW OF ALL THE FORE GOING, We find that the decision appealed from is in conformity with the law, and the same should be, as it is hereby affirmed, wi th costs agolinst 1·espondentsappellants Ong Peng Kee and Adelia Ong. Betigz(m, C.J., Padilla, Lubrador, Concc1>cio1i , J.8.L. Reyes , and De Leon, JJ., concurred. llautista AngPfo, Barre1·a rrnd Dizon, JJ., took no pa rt. v Delgado Brothers, lnc., Petitioner vs. Th~ Courl of Appe"ls, et al., Respvndffi. ts, G.R. No. L-15651,, December 29, 1960 , Ba1disU1 Angelo, J. L COMMON CA RRI ER; EXEMPTION FROM RESPONSIBILl· TY ARISING FROM N EGLIGENCE MUST BE SO CLEARLY S.TATED I N A CONTRACT.- It should be noted that the clause in Exhibit 1 determinative of the responsibility for the use of the crane contains t wo pa1·ts, namely: one whe~in the shipping company assumes full responsibility for the uso of the crane, and the other where said company agreed not to hold tl"te Delgado Brothers, Inc. liable in any w ay. While it may be admitted that under the first part the carrier may shift responsibility to petitioner when the da~age caused arises from tho negligence of the crane operator because exemption from responsibility for negligence must be stated in explicit terms, how. ever, it cannot do so under the second pal't where it expressly agreed to exempt petitione1· from liability in an y way it may arise, which is a clear case of assumption of responsibility on the part or the carrier contrary to the conclusion reached by the Court of Appeals. Jn other words, the contract in question as embodied in Exhibit 1 fully satisfiect the doctrine stressed by said court that in order that exemption from liability arising from negligence may be granted, the contract "must be so rlcar as to leave no room, for the oper:ition of the ordinary l"Uies of liability consecrated by experi<mce and sanctioned by the express provisions of law." 2. ID.; BILL OF LADING ; SHIPPER SHALL BE BOUND BY THE CONDITIONS AND TERMS OF BILL OF LADING UPON ACCEPTANCE THEREOF.- 'I N ACCEPTING THIS BILL OF LADI NG the shipper, consignee and owner of the goods agree to be bound by all its stipulations, exceptions, and conditions whether wr itten, printed, or stamped on the front or back thei·eof, any local customs or privileges to the contrary notwithstanding.' This clause says that a shipper or consignee ' who accepts the bill of !acting becomes bound by all stipulations contained therein whether on the front or back thereof. ResPOJ•dent cannot elude its provisions simply because they prejudic~ him and take advantage of those that arc b<oneficial. Secondly, the fact that rcs11ondent shipped his goods on board the ship of petitioner and paid the corresponding freight hereon shows that he impliedly accepted the bill of lading which wa3 issued in connection with th<' shipment in question, and so it may be said that the same is binding upon him as if it has b«:·n actually signed by him or by any person in his beh~li. This is more so where resp(lI1dent is both the ~hipper and ~h<.' cunsignee of the goods in question. ,,. ID.; LAW GOVERN ING LIABILITY JN CASE OF LOS£, DESTRUCTION OR DETERIORATION OF GOODS TRANSPORTED.- Article 1753 . 1f the new Ci,1 il Co<l1.. pr::vides tlw.t the law of the country to which the g0ods a rt: to be tran~ ported ~hr.ll i;overn the "liabiLty of the common carrier in c~.::c. of loss, destruction or deterioration. This means the law of the Phi;ippines, or our new Civil Code. 4. ID.; ID.: LAWS GOVERNING RIGHTS AND OBLIGATIONS O f< ~ COi\!MON CARRIERS; CARRIAGE OF GOODS BY SF.A ACT SU PPLETOHY TO CIV IL CODE.-Article 1766 of t he new Ci"il Code providcs that "In all matter~ not regulate:! by thi:; C<Jde, the rights and obligations of ccmnwn ca n;·~r!I shall ~ governed by the Code of Commerce and by sp<'Cial laws,' and said rights and obligations are governed by Artie!<'~ 173G, 1737, and 1738 of the new Civil Code. Therefore, although Section 4(5) of the Carriage of Goods by Sea Act stat<'s that the carrier shall not be liable in an amount exceeding P500.00 per packag·e or.less the value crf the goods had O c-cn decla red by the shippei- and inserted in the hill of lading, Nov~mber 30, 1961 LA WYERS !JOURNAL Page 33'} snid seclion is merely suppletot·y to the p1 ·ovisions of t•ic Civil Corte. DEC I S I ON Richard A. Klcp1>er broug-ht thi.s action befo1~ the Court of F'irst Iustance of Manila tc recover the sum of 1 '6,729.50 as damages allegedly sustained hy his goods conta ined in a lift \ Hn which fell to the ground while being u11l(ladcd from a "hip owned and operated by t.hc American President Lines, Ltd. to the i>icr. plus the sum of P2,000.00 as sentimental value of the dan1aged goods and at.lorney's fees. It appea1·s that. on Februa ry 17, 1955, Klc.ppe1· shippc~• on board the S. S. President Cleveland at Yokohama, J apan one lift van unde1· bill of lading No. 82, cont:lining personal and househol11 effects. The ship arrived in the port of Manila on Fe).irnary 22, 1955 ant.I while the lift van was beiug u11loadcd hy the gant1·y crnne operated by Delgado B rothers, Jnc., it fell on the pier and its contents weie spilled and scaUe\"ed. A survey was made and t he result was. that Klepper suffei·cd damages totalling PG,729.50 arising out of the breakage, dent ing nnd ~mashir.g of the good.'i. The trial court, on November 5, 195i , rendered decision order· ing the ~hipping comp:rny to pay plaintiff the smn of 1'6,729.!>0, value of th<: goods dama~ed, plus t>500.00 as theii- sentime ntal vnlue, ·with legal interest from the fili1,g of the complaint, a nd the sur.i of ~I ,0(10.UO 3S attorney's fees. The coul"i orderer! that, 9ncc 1h" judgment. is satisfied, co-d<:fcndant. Delgado Brothers, Inc. should pay tho ship1)ing compauy the i;:ame amo~rnt by way of 1eimbursemc11t. Both defendants a 1 >pealed l\l t he Court of A:,pcals which affirmed in tolo the decision of the t rial cou 1t. Dell~ado Brothers, I nc. inter11oscd the pr<.:f>Cllt petition for review. The main is.sue which thi.; Cou rt 11~-eds t<:' d<:h'rminc is wJp•t hcr petitione1 may b;>i held liable fo1· the damag1,; done to the goods of respondent Richard A. Klepper subs idiarily to the liability attached to its co-defenda nt American President Lines, qd. as held by the trial court and affirmed by the Court of Appeals. Petitioner disclaims Uability upon the g round H•at it has beP.n C'x1>ressly :·elieved 1heref1om by its co-dcfc:ic!ant shippin~ Nmpany ui·der a <'Ontnict cntc1·ed ir:to "etween t lu:m relati,·e to t he ~a:it r;. crnne ' belonging to l)etitioner which was used by said sh i1 >PinJ.:" compa'ly ;n t:11loading the goods in que5tit1n. Pc_.titioner 1>lants its case on Exhibit I (Delgado) which reads: "Please furnish us ONE gantry lo be used on hatch #2 <if the S/ S PRES. CLJ~:VELA.N D Reg. from 1300 hri;:. to FINISH hi·s. on 22 Feb1·ua1·y 1955. "We he reby assume full 1·espc1;sibility ant: liability for dnm:we:. ro i..an~oo;.,s , ship ur (llh ~ ovise a 1 ising from u.~e of said C !'ane :rnd we will not hold t he Oc:gado Brothers, Inc. li;•hlc or 1csponsibl1· in ariy way thPreof. "We hereby ::gree to pay the co1Tt'SJJ011ding charges foi· ahovc-i-equestl.'d services." The Com t of Appeals, in holding that 1~titio11er cannot (li ?c·laim liabilit;.· under the term3 of the abovf' contl'act because it Cilnnot elude 1es pCJnsibility for the ncglig1:nce of its ployc.~. ma•le the following comment: "Thi:; aypdlant asserts thal negligence l'f its f"'mplO;.•f!C, the crane o perator, is within the coveni.~e 11£ th·~ foregoi11;,r d o~umcnt. Exhibit I-Delgado call'i for onC' gantry 'to be 11io.ed' (.JJ hatch No. 2 of t he vessel. The American Pi·esident Lin':!s, Ltd., only answered 'for use of said crane.' The phraseology thu.~ (·mployed would 11nt imluce a conclus io11 that the American Presidc11t Lines, Ltd. assumed 1·csponsibility for the n(..gli~•·1 1<:e cf the crane ..>perator who was employed by the othe1· app<·llant, Dclirncb lfrothcrs, Inc. Responsibility was not shift<!:! to the stc:.1mshi1 > company. " Exhibit I-Delgado was prepared in mimeographed form by Delgado Brothers, Inc. At best, the stipulation therein arc obscu1e. Th2t is u count against Dclgad() Brothers, Inc. And again, it must answer for the damages. 0 .B. Ferry Service Co. vs. l\ M.P. Navigation C., 50. O.G . No. 5, pp. 2 109, 2113. "A familiar legal precept is that which states that. a person is liable for the negligence c-f his employees. That is a duty owing hy him to others. '[(J exculpate him frcm lia bility for s uch ll(;giigence. the cont1·:.wt must say so in express term';. The contract conferr ing such exemption 'must be so clear as to leave no 1oom for the operation of the ordinary rules of Jiabilit~, consecrnted by exjJt.rien~e and sanctioned by t.he. cxJH·css provisions of law.' The Manil\t Hailroad Co. vs. Let Campana Trnsatlantica and the Atlantic, Gulf & Pacific Co., 38 Ph:l., 1-175, 886. The ti•nc honored rule .;;till is Rcniinti"tia 1w11 11me1•11mitfr. Strictly construed and giving every reasonab:e intcndment ag-ainst the 1mrty claimi11it e xemption, we ,hold that Exhibit I-Delgado affol'ds no p1·otcction for Delgado Bi·others, Inc.'' We cannot agree with t he find"ing that the ph1·aiwology employed in Exhibit I would not ""induce a conclu-sion t hat the American Pr~sident... Lines Ltd. assumed iesponsibiiity for t he negligence cf the crane operntoi· who was employed by the other appellant, Delgado Brothe1 ·s, Inc." and that fo1· that t·eason the latte1· s hould he blamed fqr the consec1uence o( t he negligent act of :t5 opc1 ulo1·. because in ou1· opinion rhe phra<>eology thus employed coiovcys p1ecisely that conc!usion. It ,;hould be 1.oted that U:~ clause determinative of lhe responsibility for the use of the c ra!le ..;<Jnt;;ins tw:i pai·l:>, namely: on<: wherein the shipping compan~· assumes rull responsibility for the use or the crane, a nd the othl'r wh.:rc said company agi·ced n<it la J wld the Delg{ld'.) Brothers, Jnr. liable 111 llny way. While it nay be admitted that under the f ir:-;I 1 1art the carrier may shift 1 ·el\pOnsibili1y to 1>ctitiu11er \•, hen 1h~ Jamage c.:aused arises frnm the neglige11ce of the crane operator because exem1Jtio11 from res po,1sibility for ncglib"C'nce must be stnted 111 (:Xplicit terms, however it. cannot do so under t he second part whrre it cxp1·essly agreed to exempt petitioner from liability i11 W!J/ wuy it may arise, which is a clear case of assumption of responsibility on the part of the carrier con~rnry to the conclnio.;on 1eached by the Court of Appeals. In other words, the con£1:act in que~tinn as embodied in Exhibit l fully satisfies the dO<'.trine stressed by said court that in order that exemption from liability al"ising from negligence may be grnnted, the contract. " must bC so. clea1· as to !cave no room fc1· the operation of the 01 ·dinary rule's 0f liability co11secn~teJ by expe1·ic·nce a:vl sanctioned by th<· cx1m.·ss 1 irovisions of law. ~ The case of The Manila Railroad Co. v. l..;a Campaiiia Tras~tlantica ct al., 38 Phil., 8i 5, i11vok.?d i11 l hc nppc:1lcd cl'ecision, is" uot, thel'eforc, in poinl. In t he 1 11tte1" case, the evidf'nce adr1uced is not clear as to t he exemption of t'esponsibiiity. Here the ~Con tnlry appea rs. He11ce, t he doctTinc therein laid down is not contrnlling. With n •gnrd to the enors assig"oe,J 1'elative 10 the disrei~ard mude by the Cou1·t of Appeals of clause 17 of the bill of l.adi:ijt which limits ~t.c amount of li1~bility of the carrie1·, as w<-li as -the non-application of t he Carriage of Goods by Sea Act, particularly Section ·I (3) thereof, we don't de-cm uccessary IC' discuss ~hem ht:re. 1'he same have already been disposed of in the appeal taken by the shipping company from t he same decision, docketed as G.R. No. L-l ii671 (pl'Omulgated November 29, 1960), wherein we hck~ the following: "\Ve a rc inclinl'tl to ag 1 ee t" this tontenl iun. Firstly, w~ can!mt bur take note of the following: clause Jninte<l in r",I ink ti.at ap1iears on the vel'V face of the bill of lading : ' I N ACCEPTING THIS BILL 01~ LADING the !;hipper, consi!,rr.·e n;' d f"IWl'<:r of the goods a.l:("~·ee to !>r !>o\rnd by all its 'itipulatfons, exceptions, and conditions whethe1· written, p1·inted, or st.ampt'(i on tt:e f1 011t or bat k t hei·cof, any l{leal customs 0 1· privileJ!'eS lo the contrary notwithstan,!ing. This clause is very 1evealint!. J: says that a shippe1· or ecnsignee who acCe11ts the bill of fadi P~ Le::,,1111i.'t bl'und by all stipulations co111.ai11ed thctein wheth<'r on Page "336 LAWYERS \JOURNAL November 30,_ 1961 tht: frolit or hack thereof. Hespondcnt cannot elude its proviswns sinqi ~y because they prejudice him und t.akc advantage of those that arc beneficial. Secondly, the fact that respondent shipped his goods on boa1·d the s hip of petitioner and Jlaid the c~l'\'N;pondmg freight then:.on s hnws that he imp~iedly aC<!CpLcd the bill of Jading which was issued in connection wit.h the shipment in question, and so it may be sni,l tlmt the same is binding upon him as if it has been actually signed by him 01· by anY person in his behalf. This is more so where respondent i:; both the shi1iper :rnd the co11signee of the goods in question These circumstances take this case out of our ruling in the Mira.sol case (invoked by t he Court of Appeals) and place it within our doct.rine in the case of Mendoza v. Phi!iJJ1>ine A ir Lill<!S JnC"., L-3678, prnmulgated on 1'~ebrua1·y 2!J. l!l5i, x x x. .. With rega1·d to the contention th:H the Carri:1g:e of Goods by Sea Aet should also control this case tht' same i<: d !l'.) rn·1· •r:rmt. Articll' 17!'.i;; ( New Civil CP,!<') prov~<l<!s th~t th<' ·luw <,f th•J count1·y to which the g·oods arc to be t ra 11s11orte.-I shall govern 1h(' liability .:if the Cf'lllm011 ca1rier in cas(' of loss, <k~· nuction ror cleterioraticn. This means the law of thf'! P hi!ipµi11cs., or onr new Civil Code. Undl!t' Article ViHG, ' In all mal.ters 1Wt J'('gulated by this Code, thc r ights a nd obligations of commo~ carriers shall be r,ovcrned by the Code of Commerce and h\' s pecial laws.' and he1·e we have provisions that govern ·3a~<I ~ight.Q and obligations (A rticles 1736, 1737, :rnd 1738). Therdore, although Section 4(5) of t he Caniagc of Goods by Sea Act st.ates that the carrier shall not be liable in :rn amoun~ ·exceeding $500.00 per package unless lhe value of the good~ had been <leclared by the ship1ler a nd inserted in the bill o( larling,' said sectio11 .is men~l~, suppletory to the: pro\·isif'no;; .Jf the Civil Code. In this respect, we agree to the opinion of the Court of Appeals. ' -,Vhercfore, the decision appealed from is modified in the Sf>nSc that petitioner Delgado Brothers. l ne. shouid not be made lia:blc for the dru::age ca.u.£eJ to the ~cods in question, wi(l'.out 1u·o11ou:1cc· , G'engzt•11, C.J., Padilla. L"linulor, J.IJJ ,, P.r!JeS, !Jrn'1·eru, Gu~iern::: Da.ri,-i,/ our/ Pore./es. JJ., concurrcrl. V I p,1:: Furl'i<. f'etiti01u:r. 1·s. !rcneo M im111/a, Nesv1nulent, G.ll. .'"lo. £:12u.>:i, .~forch ·1, 1959, Rcyls, J .8.L., J. 1. P UBLIC S ERVICE- COMMISSION; APPROV.\L OF CONVJ:YANCE OR ENCUM BRANCE OF PROPER'l'JF.~ OF OPC".RATOR OF PUBLIC SERVICE. -- The p1·ov1~ions of S~ction 20 of the Public Sci-vier. Act IComn~onwcalth Act 14G) proh iJ,it lhc ~ale, alienation, lease, or cncumbrn.nce of t.hc property, ·1 franchise, certific~te, privileges or ri1rht;:., or any part thcrr-<·f . . of th.;: owner or operatni· of the public scn·ice without approval or autho1·ii;ation of the Public Service Commission. 2. TD.: ID.; PURPOSE OF T H E LAW. - The hw w:.is (lesi~11cd primarily for t he protcctior, of the public interest : and until t.he ripp1·oval of the .P ublic Service Commi~sion is obt:.im•d, tho; veh icl·~ i,,, in contemplation ('f law, .!'till under the service of the owner or ope1·ator starHling in the rccoids of the Commission, to which the public has right to 1·ely upon. ::!. :'.l!OHAL IJAMAG1' ~S ; CANNOT BE RECOGt'\lZED JN DAMAGE ACT ION BASED ON A BREACH OF CONTRACT OF TRA ~SPORTA'T'ION .-lt has been held in Cachero n. MMil:I Yellow Taxic11b Co., Inc., G.R. No. L-8721, May 23, 1957; Necesilo, et a l vs. Paras, G.R. No. L-10605-10606, June 30, 1958, that mora l damag-es ai·e not 1·(·coverable in damage nc~ ions predicated on a h1·each of the contract of transporb~ion, ,in view of A rtieles 2219 and 2220 of the new Civil Code. 4. ID.; REQUISITE TO JUSTIFY AN AWAJW. - In ca"'<'·' of brc:1eh of contwct, including one of transportation, prvof of bad faith 01' fraud (doius). i.e., wanton or deliberately inj ui·icus conduct, is esser~tial to just.if y an award of morat damiiges. 5. ID.; l3 l~EACH OF CONTRACT NOT I NCLUDED I N TJH: TERJ\I "ANALOGOUS CASES" USED IN ARTICLE 2219', CI VIL CODE. - A breach of contract can not be considered in the descriptive term ''analogous cases" used in A1·t. 2219; not only because A r t. 2220 !<peeirically provides fo1· the danrng•es that are caused by· the c~ntractual breach, but bccau~c the definition of <1uasi-delict in A!·t. 2176 c.f the Code cx!H·cssly excludes the cases where there is a ''preexisting cont rnctu;il relation l>etwecn the pa ~·l~es." G. JD.; MERE CARELESSN ESS OF CARRIER'S DRIVER DOES NOT PER S E CONSTIT UT E AN INFERENCE OF RA D l~A I T!-1 0 1·' CA l~RI ER.-Th•! mei·e carelessness of t he caniBr's d1·iv<'t' does not pet se constitltte 01· .iustif~, an inference of malice or bad faith on the part of the carrier. 7. ID.; AWARD O F MORAL DAl\I AGES FOR BREACH 0 1~ CONTRACT W ITHOl' T P HOOF' OF BAD FAlTH WOUI D BF: A VIOLATION OF LAW. - To award moral damagC:i for breach of contrn<'1, withvut proof of bad fait h or rr,aJi~C' would be to violate th,• cka1· pr"Jvlsions of the law, and constitute unwarrant<!d juUicial legislation. S. ID.: PRESUMPTION OF LIA BILITY OF CARRIER; lllJHDEN OF PROOF. - The action Cor breach of contract imposes on the defendant cal'l'ier a pr<!sumption of liability upon mne proof of mjury to the p9.Ss<!nger; the latter i.; relieved from tht- duty to esta blish t he fault of the ea: ricr, or r;! his employees, and thC' burde~ is pince<! on the carl'ier to prove tht1t it was due to an unforeseen event or to force 11mj(•w·e (C:1ngco vs. Manila Rai lroad Co., 38 Phil. 768, 777) . DE C I S ION Defendant-petitioner Paz F'ores bring's tr.is petition for review of the decisivn of the Court of Appeals (C. A. Case No. 1437-R) awnrclinJ.( t(I the pla ir.tiff-rcspu1dent l '.eneo Miranda the S U!Tl3' nf t>:i,000.00 by way of :i.rtual dam;,c:es and counsel fees, anct 1'10,000.00 as mornl damages, with costs. Respondet1l was one of the passengers on a jeepney d1 ·iven by ~uge11io Luga. While the vehicle wus desrentling the Sla. M">'!I bl'idgc at a n excessive rate of speed, the driver Jost control thereof, <..ausing it to swerve and to hit t he bridg-e wn!I. The accident ocr~ir· red on the morning of i\la;·eh 22, 1953. F'lve of the passengers w.:>J"e injt1red, including t he respondent who suffe red a fracture of the 11p·' }.-N high humo..uz. Ile was taken tc the N'ationa! Orthopedic Hos!'lital for treatment and later wn~ subjected to a sel'i<!S of operations: the first on ~lay 23, 1953, when wire loops werl.'! wound a romul I.he broken bones and screwed into place ; a second, effe~tcd to insci·t a ;nelal splint, anrl a t hird OW! tn 1·em<we such SJJ\int.. At the time of the trial, it appears that responctent had not yet recovered the use of his 1 ·ight arm. T:1c drivi!r was cha rg<'d with sc,-ious physical :njuries thr':!ugh reckless imprudence, and U'pon interposing a pica of guilty was ~entenced accordingly. The contention that the C\'idence did not s ufficie11t.ly Psbblish t.he identity of t.he vehicl<! as t ha1 b<'longi11g to t.he !)~tition<>1· was rejected by the appellate court which foun'.l, among cthrr 1hings, that it carriE'd plat(' Ne. TPU-!Hi3, series of l!Jfi2, QuP.:!.cn City, 1·egistered in the name n[ Paz F,1rcs, (appellant herein} am! that the vehicle even had t he name of "Doiia Paz" painted below its windshield. No evidence tiJ the confr;.ry was introduced by the petitioner, who relied on :i.n attack upon the nedibilit y of the lw<' A point to be fllrther rcnnrked is . pctitio•1cr's contentio:1 nrnt V!l l\brch 2 1, 1953, 01· one day IY.!fore the accident happenl'd, she allegedly sold the passenge1· jeep that was involved therein policemen who went to th(), scene of the ir.cidont. to a certain Cai·men Sackcrman. Novcmbe!' :10, l!lGl LAWYERS \JOURNAL 'Page 337 The initial problC'm raised by the petitioner in this a)l!ll'al may be forreulated thus - " Is the appr•wai of lhc Public Servir,r Commii:sion nc·:!cssary for th(' .5alc of a pnblic scrv:'tr vehicle cY.:r:. without conveying therewith t.hc autbrity to operate the sam'!!~" Assuminl::t' the d11bio1i.s stil<> to be a fa:.:t, the Cour t of Appeals si.nswcre<l the query in the affinnativ~. Thi'.' rnling should be upheld. Section 20 of the Public ~crvicc Act (Commonwealth Act No. 146) prov:dzs: ' Sec 20. Subject to cstablishf::d i:mitatic.ns and e."<ceptions and saving provision:; to the "ontrary, it shall be unlawful for any public service or for the owner. lessee or operato1 thereof, without the 1 u·evious approval and authority of the Commission previously ha•j _ x x (g) To i:cil, ali~nat'!!. mortgage, encumber er lease it~ pro1 i1::rty, franchises, certificates, privileges, or rights, or any part thereof; or merge or coMolidate it.:; 1>roperty, franchises, privileµ-es Cir rights, or any pnrt thereof, with tho~c of any other public se1·vict.. Thi: approval herein requin•rt shall be given, after 11otiC'e to th<! public and af!Rr hearing, if it be shown that there are jus~ and reasonabl.~ grou:1ds for making the mMtg-.i~c or encumbrance ·for liabilities of more than one year mat urity, or the sale, alienation le&.s:e mcri;cr, or con::;olidation to be approved, and that th; same are not detrimental to the pubilc interest and in cnsC' of S.'tle, the date on wllich the sa•ne is to be cons~mmated s!mll be fixed in the order or approval; Proville<l, however, Th11t nothing herein contained sh::i\J be cons~ ruC'd ICI prevent th~ transaction from being negotiated or completed before ita ap. pro\•al or to preY!'nt t he sale, alienation, or lease by any pnblic service of any of its property in the ordinary course of its business.·• Interpreting the effects of this pa1ticula r provision of law, we h~va held in tht• recent cast!S of Montoya vs. lgnaciC1, SO Off. Gaz. No. I. p. 108; Timbol vs. Osias, ct a: al, G.R. Nc. L·7547, April :SO, 1955, and Mediiia vs. Crest:ncia, G. R. No. L-8193, 52 Off. Gaz. No. 10, 4606, that a transfer contemplated by the law, if made without the 1C'quisit<J approval of the Public Service Cc.mmission, is not effective and binding in so far as the re!!ponsibilit}' <'f th1~ !?1" 8ntcC under the franchise in 1 ·dation to thr public is COil· u·rned. Petitioner assails, however, tht• a pplicability of thC'sc 1 ut:ngs to the instant case, contE;nding that in those caseJ, tl:e operator did not convey, by lease 0r by sale, the vehicle independently of his rigihts under the franchise. This !inc of reasoning docs w :it find suppor t iu th'! Jnw. The pL"cvi!iions sf the statute are clear and p1 ohibit the sale, alienation, lease or encumbrance of the property. franchise, certific.ate, privileges or rights, or any part ther~f of the owner or operator of the public service without approval of the Public Sci vice Commission. The law was designed J · rlma ~ily fo1· the protection of the puhEc interest, an:] until th1' approval of the Public Se1vice Commission is obtained, the vehiclu is, in contemplation of law, still under the se1vice of the owner or operator standing in the records of Commission, to which th,... public has a right to rely u11on. The proviso contained· in th3 afo1equotcd law, to the e fe('I ~h at 11otlung lherei•1 shall be constrn~<l .. to prevent t!ie trnnsactlon from being negotiated or completed before its ..ipproval" menu~ oniy that the sale without the rcquir1.d approval is still 11a!id and binding between the parties (M onto~·a ''s. Ignacio, supr.i). The phrase " 111 the ordinary course of its business" found in thC' other provisu "01· to prevent iht• ~ale, alienation, 0 1 :ease by any public service of any of its pl"Opel'ty'', :-:..:; conectly observed by the lower court, could not have been intended to include the sale o~ the vehicle itself, but at most may refer only to such prope1-ty that may be conceivably disposed of by the carrier in the ordimu·y course of its business, like junked equipment or share parts. The case of Indalccio de Torres vs. Vicente Ona (63 Ph;I 594, 597) is enlightening; and there, il was held: "Under the law, the Public Service Commission has not only gcrieral supervision and regulation of, but also full jurisdiction and contrOI over all public utilities including the p l"Operty, equi pment and facilities used, and the p1 ·C1perty rights :inJ franchises enjoyed by t'very individual and company en gaged in the performance of a public service in the sense this phra~c is used in the Puhlic Eer11icc Act or Ace No. 3108 ( ,:e~ 1308) . By virtue of the p_rovisions of said Act, motor veh.icles 141'.?rl in the perforniancc of I! scrvict', as the , ·runsportalion of freight Crom one point t.-0 nnoth(>r, have to this date been c~n sidercd - and they cannot but be so considerc:d - public "'"rvice 11ropeJ·ty; and by 1casons of its own nature, a TH truck, which means that the operator thereof places it at th, dii:posat of anybody who is willing to pay a rental for its use, when lie c!csires to transfel' or carry his effects, merchandise or any other cargo Il'Om On\! placE' to another , is necessarily a pub!ic service property." (Empha:<:is supplied) Of course, this Court hus held in the case of Bachrach Moto;Co. vs. Zamboanga T ransportation Co., 52 Phil. 244. that the:e may be 1. 11u.nc vro t11111· autriol"izatinn which has the effect of having the approval retroact to the date of the transfer, but such oul.cume cannot prejudice rights intervening in the meantime. It :lppcars that no llUC'h approval was giv<>n by the Commission b~ fore the accident occurred. The Pl0,000.00 actual damages awarded by the Court of F irst Instance of Manila were reduced by the Court or Appeals to on!~· PZ,000.00, on th ground that a 1eview of the recorci!> fai~..!d to ~i::; close a sufficient basis for the trial court's appraisal, since the :rnly ev1 Jencc presented or. this pdnt Mni<ist;:>d of rcspondC'nt's hn:c statement that his expenses and loss uf income amounted to P.!O, 000.00. On tt:e other hand, " i~ cannot be denied," the lower COllrt said, "that appcllcc (respondent) did inc.ur expenses." It is w,...11 to note further that respondent wa:; a painter by p rofession ar.-l a professor of F ine Arts, so that the amount (If P--2,000'.00 awarded caunot be said to be excessive (see Art. 2224 and 2225, Civii CoCc .1! til'~ P hili ppi11cs) . The attonwy's foes in the siim l')f P3,000.(}0 •~:so awarded to the re.ipendeni arc assailed on the g!'ound that th<:Com t of Firf'I ln~tance did not pr~vide for the :c.am~. nnd since no appeal was interposed by ;:aid respondent it was allc.gct.!!~, enor fo1· thC' Court of Appeals to awa1d them nwtu propr fo. Po:;titioner fails to note that attorney's fees are included in the concept cf actual damages under the Civil CodC' and may be awarded whenC.\"er the court dC'ems it just and E'QuitahlE' (Art. 2208, Civil Code of 1hc Philip!>ines) . We sec no 1·ea!>rm to alter these awards. Anent the moral dama.g~s ordered to be paid to t.he responcten!, the same mu& t be <fo;carded. We have repeatedly ruled (C:lr.hero vs. Manila Yellow Taxicab Co. Inc., G.R. No. L-8721, May 23, 1957, Ncccsito, et al vs. Pa1·as, G.R. No. 10605-10606, J u.ne 30, 1958, that moral damages arc not !·ce0HrabJ·p in damage azfrn1s 1•redic'.ltcd on a hreach of the <'ontmd 0f transportation, in view of Articles 2219 and 2220 of the new Civil Code, which provid~ a<; follows: Art. 2219. Moral damages m~y be recovered in the following and analogous casl!s: (1) A cl'iminal offense re.1u:ting in physical injuri ... s : (2) Quasi-delicts caming physical injuries; " Art. 2220. Willful injuiy to properly may be a legal ground for awarding moral damages if th<: court should find that under the circumtancC's, suC'h damug;;s arc j ustly due. The same n1lc a ppli<!S to bn::al•hes of contract where :he defcnda:it. acted fr'lt;tiu!ently or in bad faith." By contr~sting the provisions of tht·S<: two :irticlcs it 1mRh'o..!iately becomes apparent that: (a) In cases of breach of contrad (including one of transporiation) proof of bad faith or fraud (dolus) . r e., w-.nton or deliberate])· injurious canduct, LS essential to justify an award of mo,.;.; damages: and Page 338 LAWYERS \JOU RNA L November 30. 1961 (b) That a breaoh of cont1·nct can not be considered included i11 the descriptive term, "analag:>ull cases'! u~ed in .j\rt. 2219, not only because Art. 2220 specifically provides for the damages that arP. causgq by contractqal breach, llltt because the definition of qiwsi d!l/1ci in Art. 2Jl76 of Code c.'l:pres&lY exclµdes the cases whe1c ··hmc !!'.' :\ "JJrc-exislmg co'1trnckal 1elation between the parties." "Art. ~176. Whoever by act or omission causes damages tu anQthl.'r, there being fault '"'r ne~ligcncc, is obliged to pay for the \'.l.amagc done. ~uch fault or negligence, i! there is no pre-existing contractual rei:J.tion Qclween the pa11ies, is cal)(',\ a qµasi-c!e~ict and is gove"rnecf by the provisions of this Chapter." T he ll)!Ception to the basic rule of uamages now under cons1J·e1 ation is a mishap resulting- in the dr.nlh of a pas:;tnger, in which case A1ticle 1i64 makes the common carrier ex)>ressly subject to t h'! rule of Art. 2~0G, that entitles the sriouse, descendants and ascer - dants o! the deceased passeur,er to "demand moral dan~ages for mental anguish by reason Qf the dcnth r;{ the deceased" (N:ecesito vs. P aras, G. R. No. L-IOG05, Resolution on Motion to reconsider,' SeptC'mh.:1 11, I96t<). But the e..c:ceptic11al rule cf Art. 1764 mak~s it all the more evidenr tha.L where the injurC'd passenge1· does not die, moral damages are not recoverable unless it is proved that t~e c~rrie:- was guilty of malice 01· bad faith. W e think jt is clear that the men .. c.:irolessncss of the carri<'r's <lrivC'r does not per ,,t roristitute or justify an ipferenrc of malice or bnd faith on th ~ part of the UJ.rl'iur; and in the case at ba1· there is no other evidence of such malice to support t he award of moral damages· by th~ Court of Appeals. To award moral damages for breach of co11• tract, therefore, without proof of bad foith or malice on the pr.it d the 1le!cndant, as required by A1·t. 2220, would be to vioh1tc the clear provi!'lions (If the law, and constitute unwananted judicial legislation. The cArt of Appeals has invoked our rulings in Castro vs. Aero Taxicah Co. R. G. No. 4815, December 14, 1948 and Layd!l vs. Court of Appeals, G. R. No. L-4487, January 29, 1952; but these doctrines were predicated upon our former law of dam:lges, before judicial discretion in fixing them bee3m(:: limited by the ('xpress provisions 0of the new Civil Code (pi·eviously quotec!L Hence, the aforesaid rulings are now 111appti('ablc. Upon tht· other hand, the advantageous position of a pai ty suing a carrier for breach of the contract of tl"anspoi·tation explains, to some extent, the limitations imposeci by the new Code on the amoun~ 9f the recovery. The action for breach of contract im~ poses on the defendant carrier a rresumption o"f liability upon Tit#ll'fl proof of inj 4ry to the passen~et·; the latter is reiieved from 1 he dyty to cst.abli.;iti the fault of the carrie1·, or of his employees, <ind tP,e burden is placed on the carrier to prove that it was due to an unfor.>een event or to force majeure (Cangco vs. Manila Railn)ad C,o., 38 Phil. 768 1 777). i\foreovel", thl' canicr unlike in suits for qursi-delict, may ~10t escape liability by proving that it has exe!"cised due diligence in the selection and supervision of its em11!oyces (Art. 1759, new Civil Code; Cangco vs. Manila Railroad Co .. supra; Prado V'l. M~nila Electric Co., 51 Phil. 900). The difference in co,nditions, defense3 anri proof, as well as the codal concept of quai;i-delicl as essentially ea:tra-contractual 11cg!i1,,"C11cf, compel us to differentiate L~tween acuons ex con1 .1·<'c:· t11. atid actions qwl!li ex delirto, and prevent us ln'm viewing the nction (or breach fJf contract as simultaneously embodying an action on tort. Neither can this action be takE'n ns one to enfoJ":."c <m emp!oye1's liability under Art. 1o:i of the Revised· Penal Co·!e, since the respopsibility is not alleged to be subsid'iary, nor is then~ on record any averment or proof that the d1·iver of appellant was i!'.~olvcnt. Jn fact, h~ is not e\·en ma<lf' ~ party to the suit. It is alSo suggested that a c:nl'ier's violation of its engagement to safely transport the passenger involves a breaoh of the pa>1sengcr's confirlencc, and thf'refoi·e should be regarded as a breach of eont1·act in bad fait11, justifying recovery of moral den1agcs under Art. 2220. This theo1·y is untenable, for under it the carttier would alwnys be deemed in had faith, in every case its C1blignt..ion t<> the passenger is infringed, and it woul'd he never accountable for simple negligence; while under the law (Art. 1756), the presumption is that common carrien acted negligently (and not maliciously), and art 1762 :1peaks of negligeno~ of tr.e rvmmon carrier. "Art. 17fi6. In case of deatl1 of 01· injuries to passen~'!rs, common can-ie1 !.< are nresumcd to have been at fault or to hav-:: acted negligently, unlcst" ·they J>ron~ that they observed e.xtrn.ordinarily diligcncc as prE:f:cribed in ai·ticles 1733 anJ 1755." "Art. 1762. Th(' contributory negligence <,f the passcng~r cloes 11ot b;ar recovery of damage::; for his death or injuries, if the proximate cauSf! thcrr.of is the negligence o! the common carl'ier, but the amount of dr.mages shall be eguitably re<l\\Cf!I/,'' The distinction between fraud, bad faith or malice (in t he sense of deliberate or wa11ton wrongdoing) and negligence (as mere carelessness) is too fundamental in our Jaw to be ignored (Art. 11701172): then· c<insequenccs being clearly differentiated by ~he Cu<!-:-. "Art. 2201. In contracts and quasi-contracts, ti"je damages for which the obligor who a : ted in good faith is liable shall be those that are the .natural and proQable consequences of the br1>nch of the obligation, ancl which the parties have foreseen or could hnve rCflSOnabiy foreseen at the time the obligation w~s co111:t:tutec!. In case of frnud, bad faith, malice ot· written attitude, the obligor i;hall be respoT\sible for all damages which may bcreason&bly attributed to the non-performcnce of the obligation." It is to be presumed, in th1J absence of statutory provision to the contn11·y, that this diffei·cncc was in the mind of the lawmaker~ when in A rt. 2220 they limited recovety of moral qamages to l•1cachcs of contrnct in ha~ faith. I ~ is tnrn that negligence m.ay be occas:onally so gross as to amount to malice; but that fact must be shown in evidence, and a carrier's bad faith is not to he lightly infe1Tcd from a mc.-e fimling that the contract was breached th!·ough negligence of the carrier's employees. In view of the foregoing considerations, the decision of the Coui·t of A1>pcals is modified by eliminating the award of P5.000.00 by way of moral damag<!s (Court of Appeals &solution of May 5, 1957). Jn all other respects, the judgment is affirmed. No costs ip tP,is instance. So Ordered. Paraa, C.J., JJeny;:rm., Pculilla, Montenwyor, A, Reyes, Bcmtist1i A n9efo, r.abra<lor, Concepcion, a1ul E ndrncia, JJ., concurred. VII Bartolom.e San Die!Jo, Petitioner, vs. Eligio Sa.yson., Respondent, G.R. No. L-16258, A ugiut 31, 1961 , U tbraclor, J. L CIVIL CODE; ART. 1724 OF T H E NEW CIVIL CODE AN D ART. 1593, OLD CODE COMPARED. - Article 1724 of the new Civil Code is a modified form of Article 1593 of the Spanish Ci\'il Code. It. will be noted that under Article 1593 of the old Civil Code recovery ·for additional costs in a construction contract can be had it authorization to make such additions can be proved, while article 1724 of the new Civil Code requires that instead of merely proving authorization, such a uthorization by the proprietor must be made in writing. 2. JD. ; AUTHORIZATION FOR RECOVERY OF ADDITIONAL COSTS BY REASONS OF CHANGES I N P LAN IN CONSTRUOTION CONTRACT BE IN WRITING; P.URPOSE OF THE AMENDMENT.- The evident purpose of the amendment is to p1·evcnt litigation for additional costs incurred by reason of additions or changl!s in the original plans. That the requirement for a written authorization is not .merely to prohibit ad· mission of oral testimony against the objection of the adverse party, can be inferred from the fact that the provision is not included among those specified in t he Stat\ltf! o! F rauds, Article November 30, \~61 LAW\'ElQS 'JOURNAL Page 3;3Q 1403 of the Civil Code. As it does not appear to have been intended as an extension of the Statute of Frauds, it must have been adopted as a substantive provision or a condition precedent to reeovery. The new provision was evidently adopted to prevent mjsun,:lcrstandings and litigations bt:twcen contractors and owners. Clearly it was the intention of the legislature in making the amendment to require authorization in writing before costs of ad"ditional labor in a contract for the construction of a bu\iding may be demanded. DECISION This is a petition for certiorari to review a decision of the Court of Appeals affirming a judgment of the Court Of First Instance of Manila which sentenced petitioner Bartolome San Diego to pay respondent Eligio Sayson the sum of P5,541.75 with legal interest thereon from Sept<'mber 10, 1956, plus P500 as attorney's fees and costs. Jn the action brought by respondent Eligio Sayson in the Cou'rt of First Instance of Manila, he alleg~d that in November, 1954, he and San Diego entered into an agreement. whereby Sayson would furnish labor for the construction of a building at 1200 Arlegui, Farnecio, Quiapo, Manila, in accordance with the plans approved by the city engineer, at the price of PHi,000; t hat in the course of the construct ion t he plans a pproved by the city engineer were modified and changes were made not called for in the approved plans, for which plaintiff had to perform and/ or furnish labor valued at P6,840:31; and that San Diego has refused to pny this addilional sum. Jn a spe•cial defense, San Diego alleged that even granting that additiona l work had been performed, he may not held liable for the same in view of the provisions Of Article 1724 of the Civil Code. At the trial the Court of First Instance of Manila found the following extra or additional work pel"fonncd by Sayson: ··x x x he testified that the width of the building was increased from 13.80 meters in the plan as approved to 14.30 meters; the party wall of hollow blocks as appearing in the plan was changed to· reinforced concrete; that although the mezzanine was ordered eliminated in the plan and therefore not included in the contract, defendant had it constructed; that aft.c~ the stairs were constructed, it was ordered removed (Exhibit A-1-a); that the partitions were enlarged (Exhibit A-1-b); that the partitions on the second floor was raised, the transom was removed and the partition elevated to the ceiling (Exh. A-1-c); that all the partit ions which were single in the plan were ordered made into double wall ; the wooden flooring in Section 22 in th~ plan wa;; changed lo reinforc~I concrete (Exhibit A-3-u): that the eaves facing Farnecio SLreet although crossed out by the City Engineer were ordered made (Exh. A-1-d); that the walls had "costura'' only under the plan but were ordered plastered and ceilings were ordered although not included in the plan (Exh. A-1-e). These changes which were ordered by rte· fondant and h is engineer are summarized on page 8 of Exhibit B as follows: For additional work performl!d P6,840.31." (Record 0:1 A 1 )peal, pp. 18, 19-20.) Judgment for Sayson having been rendered for this amount the case was appealed to the Court of Appeals. In said cou.rt petitioner herein again raised as his defense the provision of Article 1724 of the Civil Code, but this court held: ''We do not see any plausible reason why <lefendant shoul<l not compensate plaintiff for the alterations done by the latter at the instance of the foimer who was benefited thereby. Bid for such alterntions were not included i.n the amount of 1'15,000. which amount was computed and submitted in the light of the approved plans. And since those alterations undoubtedly entailed expenses, time and efforts on the part of the contractor, then he should be in justice and equity to him paid for by defendant as owner of the building where they were done. It is true that there was no written agreement for such alterations but the absence thereof should not be allowed to make the contractor poorer and the owner of the building richer. Defendant in trying to justify his refusal to pay plaintiff for the latter's claim cites the following article of the Civil Code." "Art. 1724. The contractor who undertakes to build a structure or any other work for a stipulated price, in conformity with plans and sp·ecifications agreed upon with the landowners can neither withdraw from the contract no1· demand increase in t he price on account of the higher cost of labor or materials, save when there has been a change in the plans and specifications, provided: (I) Such change has been authorized by the pro{>riCtor in writing; and (2) The additional price to be paid lo the contractor has been determined in writing by both parties. "Obviously, the a forcquoted provision of law is not applicable on the claim of defendant." The decision was affirmed. Hence the case was brought here 01, an appeal by certioral'i. Article 1724 of the Civil Civil Code is a modified form of Article 1593 of the Spanish Civil Code, which provides as follows: "No ar(jhitect or contractor who, for a lump sum, undertakes the construction of a building, or any other work to be done in accordance with a plan agr(!(!d upon with the owner of the ground, may demand an increase of the price, even if the cost of the materials or labor has increased; but he may do so when any change increasing the work is made in the plans, provided the owner has given his consent thereto." I n his commentaries on this Article, Manresa said : •'El articulo 1.793 <let Co<ligo frances es mas provisor quc al quc comentamos, pues exigo para que el aumento de precio pueda 1>edirsc, que 105 cambios o ampliaciones dcl plan se hayan autorizado por escrito y que se haya convcnido et precio con el proprietario." (X Manresa, Fifth ed., p. 926.) Obviously influenced by the above criticism of the article, the Code Commission recommended and the legislature approved tbe pro-' vision as it now stands. It will be noted that whereas under the <Id art icle recovery for additional costs in a construction contrar.i: can be had if authorization to make such additionl'I can be proved, the amendml!'nt evidently requires that instead of merely provinf"." authorization, such author ization by the proprietor must be m:id1 • in writing. The evident purpose of the amendment is to prevent litigation for additional costs incurred by reason· (;f additions (lr r hanges in the original plans. Is this additional requirement of a written authorization to be considered ai; a mere extension of the Statule of Frauds, or is it a substantive provision. That the re'!Uirement for a writl<'n authorization is not me:-ely to prohibit admission of oral testimony ag-.i.inst the objection of the adverse party, can Ix> inferred from. the fact thnt the provision is not includ('j among those specified in the Statute of Frauds, Article H 03 of the Civil Code. As it does not appear to have been intended :ui un , extension of the Statute of Frnuds, it must have been adopted as a substantive provision or a condition precedent to recovery. Our duty in this respect is not to dispute the wisdom of the provision; we should only limit ourselves to inquiring into the legislative intent, and once this is determined to make said intent effective. The new provision was evidently adopted to prevent misunderstandings and litigations between contractors and owners. Clearly it was the intention of the legislature in making the amendment to require authorization in writing before costs of· additional labor in a contract for the construction of a building may be demanded. We find that the provision is applicable to the circumstances surrounding the case at bar, and we' are in duty bound to enforce the same. The trial court should have denied the demand for Page 340 LAWYERS O"OURNAL November 30, 1961 additional costs as directed by the provisions of Article 1724 of the Civil Code. WHEREFORE, the writ is hereby granted, the decision of the Court of Appeals reversed, and the action of respondent dismissed. Without eosts. Beng.:001, C.J., Padilla, J.13.l. Reyes, Pa1·cdes, Dizon 1.,11ul De LCQI!, JJ., concurrctl. Barrera, Natividad u11d C001cepcion, JJ., took no part. VIII la Mallorca Bu.s Co., et al., Petitioners-appellees, vs. Nica1101· R-0.mos, et al., Respondents; Fuentes a.nd Plomantes, Respondents<1vpellants0 G.R. No. L-15476, September 19, 1961 . Natividad, J. l. DEPARTMENT OF LABOR; REORGANIZATlON PLAN NO. 20-A; JUDICIAL POWER CONFERRED TO REGIONAL OFFICES ORIGINAL AND EXCLUSIVE IJURISDICTION OVER MONEY CLAIMS OF LABORERS IS NULL AND VOID.- The p1·ovisions of Reorganization Plan No. 20;-A, nndertaken under the provisions of Republic Act No. 997, as a mended, insofar as they confer judicial power upon the R.:!gi!lnal Offices thereby created and give said offices origin3l and exclusive jurisdiction over money claims of laborers other th1l!l those falling unde~· the Workmen's Compensatfon Law, . '"trc null and void and of no effect. Corominas, el a\'. vs. L"hor Stundar•I Commission, G.R. NO. L-14837, and companion ~a~e,;, June 30, 1961; Miller vs: J\lardo, G.R. No. L-15138, and. companion ca~es, July 31, 1961; Caltex (Phil.) Inr.. ''S. Villanue·ca. f't al., August 21, 1961. 2. WORKMEN'S COMPENSATION LAW; APPLICABILITY TO. CLAIM FOR COMPENSATJ0::-1 FOR DISABILITY DUE TO T UBERCULOSIS. - The claim fo1· disability due to tuberculosis, a!legedly to have been caused and aggravated by the 11ature of plaintiff'~ employment in the petitioners' servic~, falls squarely under Section 2 of the Workmen's Compensat ion Law (Act No. 3423, as amc:nded hy Act No. 3812, Commor,"ealth Act i>Jo. 210 and Re))Ublic Act Nos. 772 and' 889). 3. WORKMEN'S . COMPENSATION COMMISSION ; \JURISDICTION WHICH IS NOT REPEALED BY REP. ACT 992; REGIONAL OFFICES; JURISDICTION OVER CLAIMS F01~ COMPENSATION FALLING UNDER WORKMEN'S COMPENSATION LAW.- As the juris.diction vested by Act No. 3428, as amended, on the Workmen's Compensation Commission to hear and decide claims for compensation coming under its pre.visions has not heen ri:vok::d, f'ither expressly or by necessa ry implication, by Republic Act No. 992, as amended, or by any olher subsequent staitite, :rnd t he regional offices created under Rcl·r~nization Plan No. 20-A in the Depa1·tment o~ Labor partake of the nature of referees which the Workmen'~ . Compensation Corrmission had the right to appoint and clot!'!e with juri.!'diction to hear and decide such cl:iims (Sec. 48, .Act No. 3428, as amended), the provisions of said wganizat1011 plan, insobr a!'I they confer or: said regional offices j1:nsdiction 1.v11r daims for compen.-sation falling under the Worl:m~n's Compensation Law, is perfeetly legal, and their d;xi· . sions on such claims are valid' and binding. . DECI S IO N Thi!> action fo1· prohibition with preliminary injunction, initiated in the Court of First Instance of Manila to enjoin the respondents from enforcing a decision of the Regional Office No. 3 ('.f the Department of Labor which ordned the petitioners to IJ:t~ to respondent NicP.nor Ramos t.he sum vf Pl,862.00 as compe!1sation for disability due to tuberculosis, plus Pl9.00 as fees, is n'lw before this Court on the appeal interposed by the respondents from the judgment therein entered by t hat Court grantii1g the w1·it therein prayed for, on the ground that said regional offire was wilhout jurisdiction to hear and determine the claim therein involyed. It appear:. that respondent Nicanor Ramos was a driver of the petitioners La Mallorca and Pampan.ga Bw; Co., Jn::. Sometime prior to November 19, 1968, said respondent filed against the \:it· ter with the Regional Office No. 3 o! the Department of Labor a complaint asking for payment of compensation for disability due lo tuberculosis allegedly contracted by him as a resuJt of his employment in said concerns. The petitioners resisted the action. After hearing, the Regional Office No. 3 of the Department of Labor, on November 19, 1958, i·endered a decision ordering the petitioners to pay to said respondeht the sum of Pl,862.00 as disability compensation, and to said office the amount of Pl9.00 as fees. Notified of this decision the petitioners, on cranunry 23, 1959, filed in thf' Court of F irst lnswnce of Manib the instant action, whe1·ein they asked that the enforcement of said decision of the Reg ional Office No. 3 be restrained, alleging that it is null and vcid ab inili-0 as said region:il office lia<l no j uriscl'iction to hear :ind rleci<lt. t'1c claim which was the subjl:'Ct·matter t hereof. ResrionclP.nis fil::d ~n answer to the petition. When the case was called for hearing on February 13, 1959, the parties submitted the same for judgment on the pleadings. The trial court took the cnse under advisement, and on March 12, 1959, rendered judgment on the pleadings, vacating and 'setting aside the decision of the Regional Office No. 3 of the Department of Labor complained of, on the gt·ound that said regional offic.e was without jurisdiction to hear and decide the claim therein involved, and granting the writ of prohibition applied for. l''rom this judgment, t he responJrnb appealed to this Court. They contend in this instance that the trial court committed error in granting, on the ground invoked, the writ of prohibition applied for by the petitioners. It is claimed that the decision of the Regional Office No. 3 of the Department of Labor complained of is legal and binding, for the Reorganization Plan No. 20-A, undertaken pw·suant to Republic Act No. 997, as amended, gives said regional office j urisdiction to hear claims for compensation under, the Workmen's Compensation Act . The issues raised has ah·eady been the subject of previous pronouncements made by this Court. In three recent decisions u11 the ~ubject, thi~ Court held that thc provisions of Reorganization Plan No. 20-A, undet·tak.:!n under the provisions of Republic J\ct No. 097, as amendocl, insofar as the>y confor judicial power l!{10n the Regional Offices thereby created and give said officEs origi!'la\ <111J exclusive jurisdiction over money claim!! of laborers otht>r than those falling under the Workmen's Compens~tion Law, art> null and void and of no effect. Corominas, et at. vs. Labor Standard Commission, C.R. No. L-14837, and companion cases, J une 30, 1961; Miller vs. Mardo, G.R. No. L-15138, :ind c-::mpanion C.'\.~.s. July 31, 1961; Caltex (Phil.) Inc. vs. Villanueva, E:t al., Augu"'t 21, 1961. In the Corominas case, 81t;prn, this Court said: "The provision of Reorganization Plan No. 20-A, particularly Section 23, which grants t n the regional· offices origina l and exclusive j urisdiction over money claims of laborers, is null nnd void, said grant having been made without authority by Republic Act No. 097." In that of Mill!!r vs. Mardo, snwa, this Court held : "On the basis of the foregoing conskteratbu, wc hold ~,nd declare that Reorganization Plan No. 20-A, in!>ofar as it c1ir.fers judicial power to the Regional Offices ove1· cases other th:m those falling under the Workmen's Compensation Law, i!' invalid and of no effect." And in the C2.ltex case su pra,, this Court said: "From t he foregoing provision of la'" and Jules, it may be gathered that a r egional office of the Department of Lal:c·r has original j urisdiction to hear and detenr.ine claims for ccmpenrntion under the Workmen's Compeni ation Act. If :l elaim is controverted it shall' be hear d 11nd d'ecided t>nly by a r'?!lNove"!l:tfr 30, 1961 LAWYERS \JOVR>NA.L Page 341 ularly a ppointed hearing officer or any othei- employee duly IX designated by the Regional Actministrator to act !ls hear.ing Porfirio Di<1z aml Jiw.nito Elechieon, Pet1"timtCTS, vs. Hon. officer. But when the claim is uneontrovcrtcd and there i1; n l) /;'ymidio Nietes: and Daniel E1•a719elista, Dc/nulan ts, G. ll . . \lo. necessity of requiring the clnimant to present further evidence, f,-J(J5!:1, Dec.. 31, 1960, Reyes, J.B.L., J. th~ Regional Administrator may <'ntcr an award or deny the I . RECEIVER; CASES WHEN APPOINTMENT BE MADE claim." BY THE COURT.-lt has been repeatedly ruled that. where As we a nalyze the facts of the present case, appellants' C f'n- the cffecl of the appointment of a re<>.eiver is to take real estate tention is not without merits. The claim involved in this a.ctior. out of the possession of the defendants before the final adis for compensation for disability due to tubercu!usis, alleged t fl have been caused and' aggravated by the nature of plaintiff's t~m ployment in the petitioners' service. It is then a claim which falls squarely under Section 2 of the Workmen's Com1 >ensat.ion Law 2 . j uclication of t he rights or the p~rti£s, t.he appointment should be made only in ext.rem(! cases and on a clear showing of nf'Cessily therefore in order to save t.he plaintiff from g-rnve and irremediable loss of d:image. ID. ; Rf<~A SON FOR THE RULE. - The power to appoint a receiver is a delicate one; that said power shQuld be ex~!"Cise<l with extreme caution and cnly when the circumstances so drmand, either because the1·e is imminent danger that. th~, property sought to be placed in the hands of a re~E:-iver be bst 01· because they run t he risk of being impair(>(), endeavoring to avoid that the injury thereby caused be g-reater than the one sought to be averted. For this reason, before the remedy is granted, the consequences or effects thereof should be considered or, at least, cs\imalfd in orrler to avoid causin~ irreparabb injustice or (njury to othe1·s who are entitled to as much consideration as t hose seeking it. (Act No. 3428, as amendc:! by Act No. 3812, Commonwealth Act No. 210 and Republic Act No.>. 772 and 88fll, which provides : "See. 2. Gro1m<i.s f or compensation.-- When an employe::: suffe:-i; personal injury from any ucci<!r-nt a rising out of and in the course of his employ1'nent, ;:,i· contracts tuberculosis or other ilincs directly cauS{'d by surh cmvloyment, or eithe1· aggravated by or the result of the nature of such employment., his employer shall pay compensat ion in the :;urns a_nd to th« person hereinafter specified. The right to compensation as pr<'vided in this Act shall n!>t be def<;ated or impaired on the g round that the death, injury or <liseasr- was due to the rv:g~ ligence of a fellow servant or employee, without prejudice l.!> th" r ight of the employers to p1·oceed ngninst the neglig\·nt )>arty." And as t.hc i11risdict1on w~stcd l..y Alt No. 3428, as am:ndecl, ;.in the \vorkmen'~ Compemation ('0mmission to hear and de::ide ci:l:ms ror compensation coming under its provisions has :loL been revoke1 t, either expressly or by neeessa1-y implication, by Rt.public Act Ne. fl92, as amended, or by any other suhscf}uent statute, and the 1'.:!gional offices created under Reorganize.hon Plan No. 20-A in t.he Department of Labor partakl' of the nature of referees which the Workmen's Compens'ati<>n Commission h!Hl the right to appoint ~nd clothe with jurisdiction to hea1· and decide such claims (Sec. 48. Act No. 3428, as amended), the provisions of said reorganizatio!l plan, insofar as they confer on said regional offices j urisdiction rver claims for compensation falling UI1der the Wc.rkmen's Cornp1:nsation Law, is perfectly legal, a11d their decisions on <:uch claims are valid and binding. Th-J petit.ionc>r cannot cla;m, to bolst...•r their stand, t hat the Regional" Office No. 3 that renderc-d said decision had no authority to enforce said decision directly. Tim records do not disclose tha~ said r;egional office had made any attempt to do so. Immediately ?.ftcr the petitioners were notified of the decision, they brought this action. Under the circumstance~. it cannot be assumed t.hnt the Commissioner who is p!'cr;umeJ to know the law, wouH make nny such attempt. Hat.her, it must b e assumed that in "l'forcin~ said ciccision said Commissioner and the parties will ff'Jll<>w tile procedure prescribeC' in Section 51 of the Workm"n"s Compensation Law, Act No. 3428, n" amended. The trial court, therefore, committed error in issuing th<' wl'ii of prohibition restraining enforcement of the decision of the Regional Office No. 3 in question. For ~he foregoing, we find that the judgment appealed fi·nm is contrary to law. Hence, the same is reversed, and another is hereby "nrered dismissing the petition by which This action wa~ initiatl'd, with the costs in both instances taxed again ~t th ~ p(titioners-ar pellees. IT IS SO ORDERED. Bengi<m, C.J., l'adilla , Ltr.li'Yttdcr, J.8.L. Reyes, Bar-rera, Pare<lee, Dizon and De L um, JJ., concun-ed. Concevcion, ./., took no p:nt DECIS I ON This is a petition fo1· c<'rtiorati with a prayer for a writ <1f preliminary inju1 1ct.ion to annul the order of the Court of F ir st Instance cf Iioilo in its Civil Case No. 5313 appointing a l'C'Cl'iver of the property in litigation and of th(' producls t herrof. Civil Case No. 5313 is an action filed by Daniel Evanb~lista on October 7, 1959 against Porfirio Diaz and J uanito Elechicon foi· the recovery of the posscs3ion of 1! portion of 12 hectares ou1 of Lot No. 4651 of the Dumangas, Ilo:Jo, Ca<lastre. The amenrlel! ccmplain~ alleges that plaintiff is the owner of the aforesaid lot, the same having been adjudicated to i1im in the project of partition in Special P roceedings No. 815 of the same Court, which partition the probate court has already npprvvM and un<h:!r which ~he adjudicutee3 han~ a lready received their respective shares; that defendants a re in the possession of the pr'lperty in question unrler "'' unlawf ul claim of ownership ; that defendants have het:ded none of t he demands made by plaintiff for them to va~at.a the premises; that said property is first-class ricl'land, with a net yearly produce of 200 bultos of rice equivalent to 1'3,000; that the produce of saicl l:\nd for the crop year 1959-60 is about to be harvested; and that the appointment of a receiver is ne<:essary, and the most convenient and peaceable means to preserve, administer, and disposl!' of the J;J"Operty in question and its 1959-60 harvest. In answer, defendants aver tha.t U·.ey arc not claimin~ the land in question as owr.er~ bui. as lessees thereof for a perio<l of five years, in accordance wit.h a contract. of lease signed by thl'ffi with t he administratrix "If said propt:rty, Rosario Evangelista (pla;ntiff's daughter), on Ma1·ch 30, 1959; that said land rert.nin~ to Group I of the project of partition in Special P rocecJini::o No. 8 15 and for that reason, the°Court diet not have jurisdidion to appoint n receiver over the same in this ca~; and that the a llegations of the complaint do not wan·ant the appointment of a 1·eceivcr. The opposition to the motion for receivership notwithstanding, tl:e lower col,rl, on Novcm~cr 14, HJ5il, lssue1! an ordel' placing the propel'ty in Jit igalion and its produce under receivership. This order reads : "It appearing that t.h2 verified c:-implair:t a nd from Annexes 'A', 'A'-1, "A'-2, and 'B' that the plaintiff-petitioner for the appointment of Re<:eiver has an intc-rest in the propertv described in the complaint ns owner th_ereof, the same bt>in~ a part of his share in the partit ion of the intestate estate of his father (Speeia! Proceedings No. 815 of the Court (Jf First Instance of llnilo) and, therefoi·e, Nititlt!d 10 the products of the said p1 ·operty; a11d it being alleged that I.he said products Page 342 LA WYERS O"OURNAL November 30, 1961 au~ in imminent danger of being lost or removed unless a Receiver is appointed to take charge of and preserve the same, GERUNDIO DIASNES, of Dumangas, lloilo, is hereby aP1>ointed as RECEIVER of the property in litigation as well as the products thereof, and upon putting up a bond of SIX THOUSAND PESOS (PG,000.00), approved by this Court, the sa id RECEIVER may qualify and assume his duties as such." Defendants moved for the reoonsideration of the above Ol'der , claiming that the kt in question is in rnstodia lcgis in S1>ecial Proceedings No. 8tfi and can not, therefore, be the subject o!' a receiver~hip in this cas:e; that while it is tru(' that said lot had be<>1• assii.rncd to plaintiff in the pl"o.ject of partition in said praeeedings, the probate court, in approving m id partition, withlwld th<' ordei· or distribution and the closing of the estate " pending the sub:nission by the administration and the heirs of the written conformity of the creditors, namely, th<' RFC and the PNB to such <list ribution and e,·entual assumplion by the heirs of the liabilitiC's of the estate" ; and final!)', that it does not aP1lear fr.:im the com - pla int th:lt plaintiff has such interest in th~ p1 ·oper:y in liti :ation and its produce, and that such property is in dange1· of being lost, removed, or materially injur~, as to justify the appointment of a !'eceiver. This motion having been denied, defendants fil~ the .present petition for certiorari reiterating substantially their arguments in their motion for reconsideration in the court below, and urging that the order appointing a 1-eceiver was issued in grave al-iuse of discretion and in excess of jurisdiction by the court a quo. Upon JlC'titioners' filing of a bond in the amount of ;-z,000.00, we !ssuol! ~ writ of preliminary injunction to restrain the lower court f1·on• en forcing the order complained of. We see no sufficient cause or 1ea:>on in thfl instant case \(I justify placing the land in question in receivership. While it d'()('S appear from the pleadings in the cou1·l below that title or owne1·ship over said land is with plaintiff by virtue of :.he order of pr.rtition in Special Proceedings No. SIS adjudicating ;:aid prope!-ty ·to him, it li~ewise appears, howercr, that petitioners are in the m'.lte>:ial possession ther(oof, hot under any claim of title or ownership, but pursuant to a lease contract signect with them by plaintiff'<; daughter, Rvsario Evangelista, the fonncr administrator er aq~nt of plaintiff ovel" said property. In fact, plaintiff admitted in his answer to the present petition that h<' did " let his daughtf"r "'!'Ianage the said property" (par. 1 of Affirmative and Special Defenses, Answer , p. 2) . Until, therefore, the lease aJn'(!ement sign<.'rl b t>tween Rosario Evangelista, a!; agent of plaintiff, :u1d defendant~ is judicially declared Yoid for want of authority of the agent to c..xecute the ,;ame, defendants are entitlerl to continue in the posS"."S!>ion of the premises in que.~tirm, unle!!s powerful re'.ls:ons exi3t for the lower court t.o deprive them of such possession and appoint a re<:eiver. o'·er said property. These pow~rful reasons are wanting in this case. Indeed, there ifl even no showing here that the property in question and its pending harvest are in danger of hein.1t lost, or that defondants are committing acts of waste thereon or that def1md2nts are insolvent and cannot 1 ·epair any damagri they cause to plaintiff's rights. In fruth, the complaint alk ges no intr-rest on the part of the plaintiff in the .crops subjected to receiv'.'!'ship. 1)11011 the other hand, defendants occupied and planted the land in questio11 in good faith ~l!; less(es, and it is only j ust and equitable that they be allowed to cuntinue in their possession and harvest the fruits of their labor (subject to their obligation to pay their lessor his due share in the harvest) until the respl'ICtive rights <-•f the parties in this case lo the po!s·~i:sion of the land in question a !'e fin:i.llr resolved and adju<licatecl. This Court has repeated\~~ ruled that where the effect of the appointment of a receiver is to take rral estate out of the possei:sion r,f the d-efendants before the final adjudication of the rights of the parties, the appoint· ment should be made only in extreme cases and on a clear showing of ncce~i~y therefoi-e in order to save the plaintiU from grave and irreme<!iable loss of d'amage (Mendoza v. Arellano, 36 Phil. 59; De la Cruz v. Guinto, G.R. No. L-1315, Sept. 2D, 1947; Calo and San J ose v. Roldan, 76 Phil'. 455; Municipality of Camiling v. De Aquino, G.R. No. L-11476, Feb. 28, 1958; Delos Reyes v. Bayona, G.R. No. L-13832, March 29, 1960) . Moreover, the trial court seems to have overlooked that as has cften been held, "the power to appoint a receiver is a delicate- one: that said power should be exercised with extreme caution and only when the ci1·cumstances so demand, either because there is imminent danger that the pro1 >ert y SC'ugl1t to Oc placed in the hands of a receiver be lost or because they nm the r isk of being impaired, endeavoring to avoid that the injury thereby caused be greater than tl,e one sought to be averted. For this reason, l:efore tho 1 ·emcdy' is g r:i.ntert, the consequences or effects thereof shouJd be considered or, at least, estimated in ot·der to avoid causing irreparable injustice or injury to others who are entitled to as much consideration as those seeking it", (Velasco & Co. v. Gochico & Co., 28 Phil. 39; Claudio, et al. vs. Zandueta, 64 Phil. 812; Calo v. Roldan, 76 Phil. 454) . WHEREF'ORE, the orders of November 14, 1959 and December 10, 1959 are set aside, a11d the writ of preliminary injunction issued by this Ccurt on February 3, 1960 is made pennanent. Costs againts respondent Daniel' Evangelista. Bengzon, Padillo., Bautista Angelo, Concepcion, llarrern, (;utie1..,·ez Du vid, Paredes, aml Dizon, JJ., concurred. x Concordia Cagalaw•rn, Plaintijf-oppellant, i•s. Custom8 Canti>en. el n/., Dcfe71dwnttJ-a7>pellee8, G N. No /,-/f;Ofll , October .':/, 191;1, P,ircde1J, :.J. 1 COURT OF INDUSTRIAL RELATIONS; JURISDICTION; WHEN IT HAS NO J URISDIC"fION OVER MONF:Y CLAIMS.- Under th<! law and jurisprudence the Court d Ind:1strial Relations' j urisdiction extends only le. cases in•1oh·ing (a) labor dispute3 affecting an industry which is incfo- · pcnsable to thf' n:itional· interest nmt is so certified by the Prei:ident to the Court (Sec. 10, Rep . . <\ct No. 87C); (b) controversy .'.lbout the minimum wage, under the Minimum W-:>.!"'e Law, Rep. Act No. 602; (c) hours of employment, under the Eight-Hour Labor Law, Comm. Act No. 444 and (d) unfai!· labor practice (Se<.'. 5 [a), Rep. Act No. 875). And such c.lisputes, to fall under the jurisdiction of the CIR, must ar i"W while the employer-employee rel'ationship betw(>en the parties nxists or the employee seeks reinstatement. When such relation· ship is over and the employee doc!' not seek reinstatement, R!l claims become money claims that fall un<lei- the jurisdiction of the regular courts (Sy H uan vs. ,Judge Bautista, et al., G.R. No. L-16115, Aug. 29, 1961; and cases cited t herein). 2. ID.; ID.; WHE N IT HAS NO POWER TO GRANT REM?<-;DY UNDER ITS POWER OF l\IEDIAT ION AND CONCILIA T ION.- In th'-' absencf"! of unfair lRbor practice. the CIR ha'! no power to grant reme..ly under its genera! p(lwers cf ma<!i~ tion and conciliatir:n, such as 1 ·einstatemcnt or back wages. 3. ID. ; ID.; NO JURISDICT ION ON VIOLATION OF SEPARATION PAY LAW ; OHDINARY COURT, JURISDICTION Of<~.- A violation of the law on separation pay (Rep. Act No. \OU2, as amended by Rep. Act No. 1787), involvt>s, at most. :i breach of an obligation of the employer to his employ&> or vice versa, to be prose;::uted like an ordina!·y contract or ohligati(ln - a breach of a pl'ivatc l'h~ht which may be redres..-e•l oy a r<'cr,111·se to the ordinary <'our!. DEC I S I ON · On December 2-i, 1957, Concordia Cagalawan, filed a claim againsl the Manager, Customs Canteen (Ral"fl<>lla Pastorat). befor<' the Reg<onal Office No. S, Department of Labor, Davao City for November 30, 1961 LAWYERS ~JOURNAL Page ::!'3 8<>par.ition Pay, Ove11:ime Pay and underpayment (Case No. LSV · 23). iThe henring officer held that the claim fer overtime pay nr:d undcrpay:ncnt did not lie and C:ismiSS4:d the same for lack of merit , btit ordered llw pr:.yment of separation pay in the sum of Pl04.00, ii she would not be rcinst:"\ted:, and recommended the filing of an <lCtion 'fc.r a violation of se.:=tion ll(h) and 4(c) of the Wom~n :-ind Child L:i.hor Law. No appeal was taken from this ruling to the Labor St:md:u·d Commission. On January 16, 1958, tho same Concordia Cagalawan filed a complaint against the Customs Canteen, Francisco Yu and Ramona Pastoral, before the CFI of Davao (Civil Case No. 2554). She alleged in her complaint that on February 20, 1957, defendants contracted her to work on the Customs Canteen, a s a waitress; that she was receiving a monthly salary of P30.00, mud. below the minimum required by the Minimum Wage Law (Rep. Act No. 602); that she had rendered overtimo work for which she was not paid compensation (Com. Act No. 444); that in June, 1957, she complained with the Pol'ice Department of Davao ' City regarding a quarrel she had with one of the boys in the canteen. which act displeased the manager, defendant Yu who, without cause, compelled her to leave her employment; that she was not formally and actually notified by defendants at least one. month in advance that her services was to be tenninated, "in gross violation of Republic Act No. 1052, as amended and as such, she is entitled to reinstatement, including back salaries until she is returnee to her w;,rk"; and that due to the refusal of defendants to pay 11~r c;aim, despite demands, she was compelled to hire a lawyer to !Jrn' tect her intei-est for P200.00 and that she suffered moral damage!' in the sum of Pl,000.00. Plaintiff prayed that defendants be or · 1lered: (1) to pay her the amount corresponding tr. her overtilT'.:> pay and and the differential pay between her actual salary and the minimum provided for by Act No. 602; (2) to pay "her one month separation pay or in the alternative, back salaries and WllgP:> until her reinstatement"; and (3) to pay her the sum of P200.00 and ~1,000.00 for attorney's fees and moral damages, respectivc>fy. Defendants mov,ed to dismiss the complaint r.n the grour.-Js that (1) the value of the subject matter sought to he recovered is less than the minimum requirement: and (2) even assuming th" value is more than P-2,000.00, the Cou rt has no jurisdiction over the action (amended petitio11 to dismiss). It is contended that the subject matter of tht> complaint being mc>ney claim, such as 5eparation pay, overtime pay and unde!"payment , the regular courts or justice have no original jurisdiction and that the> Regional Office No. 8 of Davao City should try and determi:lc such claims, as such office alone has the original and exclusive jurisdiction on all money cases. The court dismissed the case, without costs, holding that "th(• c\a.im of the plaintiff here does not fall under the original ju~is dietion of the Court Of First Instance because the claim is Jess than P2,000.00" and suggesting that what the plaintiff should hav-: C:one "was to elevate the case to the Lnbor Standard Commission and after the final decision in accordance with the Rules a nd Rc~· ulations I, an appeal can be interposed to the Coilrt of First l n~tance". The appeal taken from said j udgml'nt by the illaint.iff to the Court of Appeals, was elevated up to Us, as the same involves th-: question of ju riMiction. We recently held: - "x x x . So that it was not the intention of Congress, in enacting Rep. Act No. 997, to authorize the transfer of p<1wcrs and jurisdiction :;ranted to conrts of justice from thc>se, to the officials to be appointed or offices to l>e created by th'! Reorganization Plan. x x x. The Legislature cculd not have intended to grant such powers to the Reorganization Commis1ion, an executive body, as the Legislatore may not and cannot delegate its powers to legislate or ereate eourts of justice 10 any other agency of the Governmc:ont. x x x tht. provision "' R.iorganization Pfiln No. !?0-A, J)al'ticulorly S ec. 25, '11Jh ch grants t.o th.: rcnional offices ori9innl and e.i:clusiv~ jurisdfr· tion over money claims· of laborers, is null and void, said gr::nit having been made witho1it authority by Rep. Act No. 997" (Corominas, Jr., et al. vs. Labor St,unda.rd Commission, ct Ill.., L-14837 ; MCli, vs. Calupitan, et al., L-15483, Wong vs. Carlim, ct. a ?., L-1;1940; Bnlrodgan Co. et al., vs. Fuentes, ct al. L· 5105, Junt: 30, 1961.) (8ee also Pitt,go v;:;. Lee Bee Trading Go., et al., G.R. No. L-15693, Ouly 3, Hl61). A£ the p1ovision of Reorgarnzatiol1 Plan No. 20-A whil'h grants to the regional offices (in this cas~ Regionat Office No. 8, Deparlmcnt of Labor, Davao City), original nnd c>xclu:>ive jurisdiction over money claims of laborers, is null and void, what court, should entertain the present claim? Under the law and jurisprudence the Court of Industrial Relations' j urisdiction extends only to cases involving (a) labor disJ'utes affecting an industry which is indis1iensable to the natirmal interest and is so certified by the Presid('nt to the Court (Sec. 10, Rep. Act Ne>. 875) ; (h) controvnsy .'lbout the minimum wage, ur.der the Minimum Wage Law, Rep. Act No. 602; (c) hours of employment, under the Eight~Hour Labor Law, Comm. Act No. '144 ~ind (d) unfair labor prac~ice (See 5[a], Rep. Act No. 875). And such disputes, to fall under the jurisdiciion of the CIR, must arise whi:c the employer-employee r!!lationship between the parties exi;:;ts or the employee seeks reim:tatement. When such relationShip is over and the employee does not. seek reinstatement, :\II claims become money claims that fall under the jurisdiction of the regular courts (Sy Hunn vs. Judge Flautista, et al., G.R. No. L-1611; nnd (ases cited therein). In the {'ase at bar, acbnittedly there is no labor dispute: 110 unfair labor practice is denounced by any of the pa11:ies; the c:a11se Of the dismissal of the petitioner was the displeasure caused upon the 1-es9'.;ndent manager, by the act of the pt'titioner for having h-ought a quarrel between her and another employ~•:, to the attention of police authorities; and when the claim was filed, there WM no Jonget· any employ«r-employee relationship hetwe{'n the partic>!\. While it may he true that the complaint, aUeged that s~e was no~ notified by dc!E:.ndants, at least one month in advance, that her senices were to be terminated ''in gros;:; violation of Republic Act No. 1052, as ameuded, and as such she is entitled to reinstatement, in · eluding back salaries until he is returned to her work" and that, in hei· prayc.- she asked for the gr::rntini; of such relief, it ill cqunll~ true that it is not within the authority of the Court of ln<hlstrial Re!ations, to reinstate her and pay her back wage.;;, in the event that she had a right to a &eparation pay, there being no allegation nor proof that defendant had committed unfair labor practice. ln the rocent case of National Labor Union vs. lnsular-Yebana Tobacco Corporation, L-15363, July 31, 1961, it was ruled that in the absence of unfair labor practice, the CIR has no 110wer to grant remedy under its general power of m.fldiation and conciliation, such a-. rcinstai.emE>nt or back wage:;;. MoreOV(>r, a violation of the Jaw en sepuation pay (Rep. Act No. 1052, as amended by Rep. Art No. 1787), involves, at most, a breach of an obligation of the employer to his employee or vice versa, to be p rosecuted like an ordinary contract or obligation - a breech of a privat.e right which may ~ redressed by a recourse to the ordinary comts. Hence, t \.ircase at bar is cognizable by an ordinary court, the Court of Fin•t Instance of Davao, in this particular cnse, it appearing that t.he amount involved hel'cin is within the jurisdiction of said court. a:> per fin<!ings of the Co'.lrt vf Appeals. IN VIEW HEREOF, the crder ap;')ealed from, dismissing th .. case for lack of jurisdiction, i!'l reversed, and the same is remanded to the lower court for further proceedings, without pronouncement a~ to costs. Bi!ng:on, C.J., Pndif/n. , Bmiti11ta .411gelo, Labrador, c~mccpcion, J.RL. Reyes, Dizwi wnd De Leon, JJ., e.>'11C1irt:t.d. Barrera,, ·'· took no part. Page 344 LA WYERS I.JOURNAL November 30, "19151 Xi Em'.IU.110 i!t. J>l#"cz, l-'i.titione-r-<1ppella11t, ti•. Th~ Cit11 Ma.-;;o-r o/ v<U1<£1i<U11an, ct ac, Ho11pondent-aµpellees, (j.R. No. L-1C71JG, Octobo,. 41, J9GJ, De Leon, J. L. SECRETARY OP HEALTH; SUPERVISION AND CON· TROL OF GOVERNMENT HOSPITALS; AND REGULATIONS TO GOVERN HOSPITAL FINANCING.- Section 7 of the Hospital Financing Law (Republic Act No. 1939) vests upon the Socretarf of Health the supervision and control ovcr .nJI the gc.venunent hospitals established and c.perated un~'.e!' the Act and t>mpowers him to prJmulgate rules and reguhtt.ions to implement its provisions. Pursuant to this sectim1, the said Secretary has pl'Omuigatcd rules and regulations, (Circular No. 262 of the Dcpsrtment of Health, c!ated ~uly 24, l~liB) ..o govern h.ospit!\l tinan::rn~. 2. ID.; FUNDS FOR THF. CONSTRUCTION OF PROVINCI&.I HOSPITAL; MANDAMUS; DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES.- Circular No. 262. De· partmer.t of Health, ds.ted July 24, 1958 dearly specifies tJ-,, proper course and the particular official of the Departnwrt of Health who, with the Auditor General, may pursue the saiC cour;;e whrmcvor any province, ci!y and/or municipality fail~ to pr-o\•ide an<l. 1"emit their respC'Ctive contributions· unde1· t1H' Hospital Financing Law. There is no mention whatsoever that t!ic chief of a provincial hospital may bring any actic.n aga?n.'lt the province, city and/ or municipality concerned in ordc1· ·Urnt the lat.let may be made to give their contriOutions. Unr l'e1· the citcumr.tances of the p:·esent case, the most that the ~ere· in pt>titicncr could do is to report to his superior official t~r failure of respondents to set aside the amount \hat the City o! Cabanatuan is obliged to give for the support of the provind:.il hospital of which he is the chief. The reco1·d does not sP.ow that petitioner had taken this step !:>cfore coming to court. .. HELD: There b-:!ing an appropriate administrative re· med¥ - plain, speedy and adequate - that cl•uld have firi;:t been availed of by petitioner, his action for mandamus is, therefore, premature. Special civil actions have been held nut entertain.able if superior administ i·ative officers could grant rdic{ (Peralta vs. Salcedo, G.R. No. L-10771, A1iril 30, 19Vi l. In other words, no n~eours~ to the cuurts can be had until :111 ndminist.rative remedies have been exhausted. DE C I S I ON This is an appeal from a decision of the Court of l<~irst In· i<tance of Nuova Ecija, dismissi:lg a petition for mandamus seeking to C()mpel the respondents to appropriate the sum of P24,983.12 from the gcnt-ral fund of Cabanatuan City to be paid to the Nue. va Ecija Provincial Hospital. In his petition, the Chief of the NU(•Va Ecija Provincial Ho!lpital, who claims to be. the officer bound by law to administer and prote.::t the interests of said' hospital alleged that under section 2(a) of Republic Act No. 1939, otherwise known as the Hospital Fin:mcing Law, which took effect on June 22, 1957, the City of Ct1· b:matuan is under obligati!m tn appropriate by ordinance at Jea:;:c! 7 "/o of its annual general income as <'ontribution for the SUJlfl.irl of the hospital; that, accordingly, for the fiscal y.:ur 1957-58, th,. :1mount of P34,983.12 i\hould huve been appropriated by the city ·council for that purpose because the city then had an annual ~11ernl inco,;..e of P555,700.00, but 0nly Pl0,000.00 ot s~id amount wa~ ~ct asid.i, leaving a deficiency of P24,~83.l2. It is this last mf'll· tioneJ ~mount that is the obje::C of th·~ action for mandamus a "!ainst the City Mayor, the Municip:i.;· BoaJ'(l and the City Treasure1· of l'abanatuan. After the filing of the answer by the respou<lents, the cri~e \1as 5ubmitted for judirmcnt on the pleadings Wht-reupon, th" IC'wcr cou1·t rendered judgment dismissing the petition on the i:rounil that the petitioner is not the real party in interest. Insisting that he has the riirht to brini;: the action for mandamus, the petitioner has appealed directly to thi; Court. The appeal cannot prosper. Section 7 of the Hospital Financini;: Law vests upon the SC'Cretary of Heslth the supervision and control over 1:11 the government hospitals established and operated unde.r th~ Act and ernpowers him to promulgate rules and regulations to implement its provisions. Pursuant to this section, the said Secretary has prnmulgated rules and regulations (Circular No. 262 of the Department of Health, dated J uly 24, 1958) to govern hospital· financing. It is provided under section 3(c) thereof that: "(c) In case of failure on the part of th~ province, cit.y and/or muncipality concerned to p?"ovide for ~nd remit their 1e!>pectivl· obligat:ons, as provid<·d for in se :.tions 2(a) and 2 (2) of the Act, the Secretary of Finance, upon reeommeTidatton of the Secretary of Hc:alth and the Auditor General, Jhall order the withholrling of the amount needed from their re~ pectivc shares in the Internal Revenue al!'otmer..ts." The above-quoted rule clearly specifies the proper course end the particular official of the Department of Health who, with thr. An· ditor General, may pul'sue the said co•.1rse whenever any province, city and'/or municipality fails to provide and remit their respeo:tive cont1·ibutions under the Hospital Financing Law. There is no mention whatsoever that the ·chief of a provincial hospital may bring any action against the province, city and/or municipality concerned in order that the lattc>r may be made to give their contributions. , Under the cir<:umstan<"es of the present case, the most that thP hei·Cin petitioner could do is to report to hi! superior official !.ht• fuilurc of respondents to wt aside the amount that the City fl( Cubanatu~n i!: obliged to give for the support ..,r the provinri:ll hospita l of which he is the chief. The record does not show th11.t pC'titione1· has taken this $tC!> before coming to court. The!'e Lcing an approp1·iate administrutive tC'medy - plnin, speedy ';lnd P.dequate - that could have first been availed of by petitioner, hir. action for mandamus is, therefore, premature. Speciat civil acfi,~nf\ have been held not entel'lainable if superior aclministl'ative offil'nr. could grant 1elief (Peralta vs. Salcedo, C.R. No. L-10771, Ap?·il 30, 1!)57). In other words, no recourse to the courts can be had imlil a:J 11.dministrative r emedies have been exhausted (Peralta vs. Salcedo. G.R. No. L-10771, snpra.: Panti vs. The Provincial Board of Catanduanes, G.R. No. L-14047, Jnnuary 30, 1960; Booe vs. Osmciin, Jr., G.R. No. L-14810, May 31, 1061; De la Tcirre V !'. Trinidad, G.R. No. L-14907, May 31, 19GO). In view of the foregoing, the decision Of the \·ower C(lUrt clis· missing the petition for mnndumus is hneby affirmed, without p1·011ouncemcnt as to costs. PUA.lifki, Bmttislf• A nyelo, Lcibrador, Concepcio~, ,J.B.L. R ... yu, Pnredes ancl Dizon, JJ .. concuned. /Jrtrre1'1l, J., took no pat-t. XII Hou ri uf Uq11i1/Jitors, Peti.tioner-Appellant, vs. f:xel111iel F/ol'o, et al., Ovvo1Jilo1s-.Appell,.t.~. C.R . . "Vo. f,.J.5155, n,,c. 29, 1960, Rew•s, I Bl, J 1. B6ND ; IT STANDS A~ GUARANTY FOR A PRINCIPAL OULJGP. TJON.- A bond merely iotands a~ s uaranty for 3 principal obligation which may f'xist indf!pende.ntly or s-tlid bond, the latter being mereJy a11 ac<·css~ry contract. 2. NOVATION; HEQUISITES. - N<Jvation is never presumed, it i:t(:i1~g ref!uircd that the intent to novate hf' eJ:prcssed cle:\1 ·ly a11d unequivocally, oi· that arms uf the new agreement be in· compatiblC' with the old contract. .'.!. ID.; EXTEN~iON OF PERIOD OF PAYMENT OR PEI!· PORJ\!ANCE NOT NOVATION.- A mere "xtension o' the term (pe1 iod) for payment ot· pcrfo1·ma11ce is not novation. 1 1. INSOLVENCY; PROCEEDINGS TO S~T ASIDE f<'RAU P· U LENT TRANSFERS BE BROUGHT BY ASSIGNEE.--U11der sectiun 36, No. 8, of the Insolvency Act, all proceeding~ to set aside fraud'u.lent trar.sfers should ·be brought and p:-r, secuted b~- the assigi1e.e, who cnn ]('~n\ly !'('J,l'esC'nt 2.lt the crMi~Novc:mber 30, 1961 LA WYERS a-OURNAL Page 345 ors of the insoh•ent (Maceda, et al. v. Hernandez, et al. , 70 Phil. 26IJ. 5. ID. ; ID.; REASON OF TH_E LAW.-To allow a sini:le cre~~to1 to bring such u proceeding would invite a multiplicity of suits. since the resolution of his caS"f' would not bind the other c:·~ d1tors, who may refile the same claim in<lepcndently, with diveri:r rroofs, anc~ possibly give rise to contradictory ruling;: of the courts DE C I S IO N From an order of the Court of First Instance ci Manila, •ht~d August JO, 1955, denying its petition to exclude rc_rtain piece£ of stet! matting from the assets of the insolvent M. P. Malabanan, the Bosrd of Liquidators appealed to the; Co>Jrt .lf Apµee.ls. Th:latter certified the case to this Court on the ground that only questions c.f law are involved. The Boc1·d of Liquidators (hereinaflc1 1eferred to as th" Board) is an agency of the Government created u11der Executi\'e Order No. 372 (November 24. 1950), and, pursuant to Ex~utive Order No. 377 (December 1, 1950), took over the functions of oiefund Surplui, P roperty LiquiJatini; C••mmitt<>c. On J une 14, 1952, Melecio Malabanan Pn!ered into a n agn ·<'ment with ihc Board for the sa lvage of surplus propertie!'- sunk in territorial waters off the provinces of Mindoro, La Union, and BatangH£ (Exhibit "A"). By its terms, Malabanan was to commence opcrat.ions within 30 days from l:Xecution .>f said contract. which was to be effective for a period of not more t~an six (6) months. On June IO, 1953, Malabanan requested for an extension 'of one (1) year for the salvage in wnters c>f Mindorn and Batengas; and the Board extended the contract up to November 30, 1953. On No•en\be1 18, 1953, Malaba1~an requested a second extension of c:one (1) moro.J year for the waters of Occirlentut Mindoro. and thf' Board extended the contract up to August 3 1, 1S54. Malabann1: subm1tteJ u recovt>ry report dated Uuly 26, 1954, wherein it is stated that he had recovered a total of 13,107 pieces of steel mattings, as follc.ws: 1-Dttember, 1953-April 30, 1954 2- May 1, 1954...iune 30, 1954 2,555 10,552 13,107 (pieces) Four months previcusly, Malabanan had entered into an agreement with. Exequiel Floro, dated March 31, 1954 (Exhibit 1, Floro), in which among other t hings, it was agreed that Floro would arlvance to Malabanan certain sums of money, not to exceed P25,000.00. repayment thereof being secured by quantities of steel mattings which Malabanan would consign to Florn; that said advances were to be paid within a rertain period, and UJ)On default at 1he expira· tion thereof, Floro was authorized to sell whatever steel mattings were in his possession under said contract, in an amount sufficient to satisfy the advances. Puri'lunnt thc1·eto. Fioro claims to have made total advances in , tho sum of P24,224.50. It appears that as Malabanan was not able to repay F loro's adva nces, the latter, by a document dated August 4, 1954, sold l l ,C!47 pieces of steel matting:> to Eulalk, Legaspi for the sum of P24,303.4Q. Seventeen days later, on August 2 1, 1954, Malabanan filed in the Court of First Instance of Manila a petition for voluntary insolvency, attaching thereto a Schedule of Accounts, in which the Board was Ji!lted as one of the creditors for Pl0,874.46, and Exequiel Fforo for P24,220.50, the origin of the obligations being described as "Manila Royalty" and "Salvagingo Operations", respectively. Also attached was an inventory of P rnperties, listing certain items of personal property allegedly aggregating P33,707.00 in value. In this list were included ll,167 pieces of steel mattings with an alleged estimated value of P33,501.00. Soon efter, the Board, claiming to hf' the owner of the li«tcd steel matting, filed a petition to exclude them from the inventory; and to !Tiake the insolvent account fat· a further 1,940 pieces of steel ntatting, the difference between the nun;ber stated in the insolvc.nt's recovery report of July 26, 1954 and that stated in the inventory. Exi:quiel Floro opposed the Board's J)elition and cl:\!m~d that the i<tecl matting listed lmd becomt: the property of Eulalie Legaspi by v:11ue of a deed of sale in !'.is favo1·, executed by F ic\'O pursuant to the latter's contract with Malabanan on March 3 l, ]!)54. The court below, arter reception of evidence as to the genuineness and due execution of the deed of sa\'e to Legaspi, as welJ as of the < 'ontract between Malabanan and Floro denied the Board's petition declaring that Malabanan had acquir~d ownership over the. sO eei mattings under his contract with t he Board; that E xequiel F loro was proper!y authorized to dispose of the steel mattings under F'lorn·s contract with Malabanan; an'd that the sale to Eulalio Leg"aspi was valid and not concrary to the lnsolvency Law. In this appeal, the Boarcl contends that Malabanan did not acquire ownership over the steel mat tings due to his failure to com· ply with t he terms of the .:ontmct, allegedly constituting condibons J•recedent for the tl'ansfer of title, namely ; payment of the pr ice ; audit and check as to the nature, qu:1ntity and value of properties salvaged; weighing of the :;alv.'lgtd prOJlt'\rtics to be cond11cted jointlv by 1 ·<..prri:eutativcs of the R<> ard and of Malab:..nm1; di:terminalion of the site for storage; audit and verification of the recovery 1·epo1'ts by gcff<:rnment auditors; and li!ing of performance bond. We are of the opinion, and so hold, that the contract .(Exhibit "A") between Malabanan and the Board had the effect of vesting Malabatian with t itle to, bl' ownership of, the steel mattings in question as soon as they were brought up from the bottcim o! the i<ea. This is shown by pertinent provisions 6t th~ contract ~s follows: "10. For and in consideratioH of the assignment by tl1e BOARD OF LIQUIDATORS to the CONTRACTOR (Mala'Jnnan) of all right, title and interest in and to all surplus prop<:'rtic'l salvaged by the CON'TRACTOR under this contract, the CONTRACTOR i;hall pay to the Government NI NETY PESOS (P90.00) per long to11 (2,240 lbs.) of su1·plus properties recove1·erl. " 11. Pa}:ment of the ag n:.ed price shall be made monthly durin:,: fr:,. first ten ( IO) days of every mor.th on the bar.is of re.-overy r-eports of sunken surplus properties salvaged rlnrlhe prcce1 ling month, d:.ily ve1ifietl and audited by the authorized representative of the BOARD OF LIQUIDATORS." That Mals.00.nan was 1't'!quir<:d undCI' the contract to pos~ a hond of Pl'),000.00 to guarantee comp.liance with the terms .nnd conditions of the contract; that the operations for sak agu wer~ e11tircly at M.-iiabanan'!I expense nnd r isk; that gold, silver, CO!l!">l!I', coins, cu.rrency, jewelry, precious stones, etc. v.-e1·e excepted from the contract, and were instead required to be turned over to the Boant for Jisposition; that the expenses for storage, inclw~ing guard service, were for Malabanan's aecount.--all these circumstances indicated that ownei·ship of the g<iods passed to Malabanan as soon as they were recovered or i:alvaged (i.e., as soon as the salvor had gained effective possession of the goods) , and not only afh~r payment of the stipulate~ price. While there can be reservation of title in the seller until full payment of t he price (Article 1478, N.C.C,). or until fulfillment of a Mndition (A1·ticle 1505! N.C.C.); and while execution of a public instrument amounts to delivery only when from the dee<! the contruy does not a ppear or cannot clearly be inferred (Articll' 1498, supra.) thet·£: is nothing in the said c;.nt'act which may be <fcemed a reservation of title, or from which it may clearly be infe!'l'ed thet <leii\'ery was not intended. The coni.•ntion that there was 110 dclivet·y is iucorrl.'Ct. While lhere was no physical tradition, there was one by agreement (tradition lon[la monu} in conformits with A rticl<' 1499 of the Ci\·il Code. "Article 1499 - The delivery of movable property may likewise be made by the m<'re consent or ,agreement of the contracting parties, if the thing sold cannot be transferred to the possession of the vendec at the time of !hr sa1e. x x x" As obsern:d earlier, there i:; nothing in tbe terms of the publi.;. instrument in question from which P.n intent to withhold delivPry 01· transfer of tit.le muy be inferred. Page a46 LA WYERS !JOURNAL NCJvember 30, 1961 The Board 11liw ccntonds that a g no renewal of the bond re<1uired was filed for the extension of the contract, it ceased to have any force :rnd effect; and, as the steel mattings were recovl'rNI during the extended period of the contract, Mnlabanan did not acquire any rights thereto. The pert inent portion or the contract 111·ovides: "J2, • J f'intly with the ex<'cution of this contract, the CONTHACTOR SHALL file :i. bcmd in the amount of TEN THOUSAND <PI0,000.00) PES08 to b''uarantee his faithful com pliance with the terms and conditions herein ; Provided, t hat this contract shall not be considered to have beC'n executed notwithsW.nding the signing hereof by the parties until said bond shall havt'.' been properly filed." Malabanan filed a bond dated J une 10, l!l52, effective for onC' ( l) year, or up to J une 10, 1953. The principal contract, executed 011 'June 14, 1952, was first extended to November 30, 1953, and finally, to August 3 1, 1954. A i can be seen, there was no longer ;11;y bond from June ti, 1953 tC! August 3 1, 1954. The iaps.:: of the bond did i1ot extinguish the contract between Malabanan snd the Board. The requirement that a bond be po<;terl was already complied with wl1PT~ Mah1bl\nan filed the bond date,~ June JO, 1952. A bond merely stands as guaranty for a principal obligation which may exist inde~ndently of said bond, the !atter being merely an accessory contract (Valencia v. RFC & C.A., L-10749, April 25, 1958). Significantly, its purpose, as per the terms of the contract, was "to guarantee his (Malabanan's) ftiithful compliance with the terms and conditions herein"; and, for • violaUon of the contract, the lioard m:1y decl:i.re "the bond for~ feite•J" (Jlar. 13). Being for its ben~fil, the Board could leg·ally Naive th~ bond requirement (Valencia v. RFC, et al., supn1) , :rnd it did so when, the bond already having expired, it extenchl the contract not only once, but twice. I n none of the resolutions C'Xtending the contract (Annexes "C" & •'E", pp. 108-112; Record on Appeal) was there a requirement that the bond be renewed, in the face of the first indor"Eement by the Executive Officer ·of the Board (Annex . " F", pp. 112-113, Record on Appeal) recommending that Malabanan's request for a second extension be ~ranted 'provided the bond he originally posted should continue." There is no merit to t he suggestion that there being a novation, A rticle 1299 of the Civil Code should govern. Novation is never presumed, it being requil'ed that the intent to Hovatc he expressed clearly and uneq11h•oca:ly, or that the lei ms of the rcw agreement be incompatible with the old contract (Article 1:!!12, N.C.C.; Martinez v. Cavives, 25 Phil. 581; Tiu Siuce v. H ab:i.na, 4i) Phil'. 707; Pablo v. Sapun8an, 71 Phil. 145; Young v. Vill:i, L-5331, May 13, 1953). Here there was neither express novation nor incompatibility from which it could be implied. Moi·eover, a mere extension of the term (period) for payment or perform:m:e is not nGvation (Inchausti v. Yulo, 34 Phil. 978; Zapanta v. De Rotaeche, 21 Phil. 154; Pablo v. Sapungan, supra); and, while the extension covered only some of the areas originally agreed upon, this change did not alter the essence Of the contract (cf. Romas v. Gibbon, 67 Phil. 371; Bank of P.I. v. Herridge, 47 Phil. 57). It is next contended that the ;;ale by Flol'O to Legaspi on August 4, 1954 (within 30 days priOJ' to petition for insolvency) wns void as a fraudulent transfer under Section 70 of the Inso!n.1~c)' Law. The court below hP-ld that the sale to I .eguspi was valid and not violative of Section 70; but there having been no p1·oceedings to determine whether the sale was fraudulent, we think it was premature for the court ht-low to <!ecide the !Joint, espetially because under section 36, No. 8, of the Insolvency Act, alt proceed in~s to set aside fraudulent t ransfers should be brought and prosecuted by the assignee, who can legally represent all the creditors of the insolvent (Maceda, et al, v. Hernandez, et al., 70 Phil. 261). To allow a single creditor to bring such a proceeding would invite a multiplicity of suits, since the resolution of his case would not bind the other creditors, who may refile the same c\:1im independently, with diverse proofs, and possibly give rise to contradictory rulings by the courts. The order appealed from is hereby affirmed in so far as it Jeclares the disputed goocls to be the property of the insolvent ; but without prejudice t.o the right of the assignee in insolvency to take whatever action may be proper to attack the alleged fraudulent transfer of the stee-1 matting lo Eu!alio Legaspi, and to make the proper parties account for t he difference between the r:umber of pieces of steel matting stated in the insolvent's recovery report, Annex " B" (13,107), and that stat~ in his inventory (11,167) . Costs against appellant. Para~, C.J., Bengzon, Bautista Angelo, Lab1·ador, llarrero, Gntierrez Davfrl, Paredes, wn<l Dizon, JJ., c0?1curred. Padilla, J., took no part. Xlll LaQ &frrn Sit alias Lorenzo Ting, Petit1·oner-a,ppellant, t>s. Rt1p1tblic of the Philippines, Oppositoi--appef/ee, G.R. N o. D-1554$, September 29, 1961, Reyes, J.8 .L., J. NATURALIZATION; EVASION IN PAYMENT OF TAXES AS GROUND FOR DENIAL OF APPLICATION.- In the case al bar, it appears that in the ,·e1·ified income tax 1-eturns filed by petitioner and that of his wife for t he years fro1 n 1951 to 1957, the contents of which he ·ratified under oath while on the witnes3 stand', the spouses appear to have claim exemption for a f ourth child by the name of Ting Kock King, supposedly born on 10 Oct'obe1· 1948. or the inconsistency between the sworn statements, petitiom'1· profcrred no explanation whut.c;oever, although <'Ounscl for a ppellant insinuates in the brief that Ting Kock King could be an adopted child of the spouses ; but the insinuation is totally devoid of p1·oof, which the applicant was duty bound to submit to the Courl. He/cl: Tha contradictory statements under oath can only leact to the conclusion either that petitioner tried to evade lawful taxes due from him or that he has concealed the t ruth in his application. E ither alterna tive would be sufficient to disqualify him for admission to Philippine citizenship. DEC I S IO N A1 >peal from a decree of the Court of First Instance of Rizal, denying the application of petitioner-appellant Lao Lian Su aliaa Lorenzo Ting for achnission to Philippine citizenship, because of applicant's failure to observe irreproachable conduct in his relations with constituted a uthoi·ities dut·ing the entire period o{ his residence in the Philippines. We s~ no merit in the ap1>eal. In his sworn petition for naturn!ization as well a s in his testimony, petitioner stated that he t>as only tht-e(. children with his wife Chua Kim T ia, namely: B~-;ic Ting, born 11/ 25/39 E steban Ting, born 4/ 11/ 46 Betty T ing, born ~/16/51. Ye:t in the v~rificd income tax retu rns filed in his name and tha'' of his wife for the years from 1951 tr:. H.157, the ('Ontent~ of wt1ich he rntifird under oath while on the witness 8hmd, the spouses apvea!· 10 have claim exemption for a fourth child by the nam') nf Ting Koc!t King, su11posedly' bGn 1 on 10 October 194.8. Of the incc.nsist'!ncy between the sworn statements, petitioner proferred no explanation whatsoever, although counsel for appellant insinuate;; in the brief that Ting Kock Ki ng could be a n adopted child of thcr.pouse:,i; but the insinuation is totally devoid of proof, which the applicant was duty bound to stibmit to the Court. As the rc..-:u"d now s:a1Hls, I.he <'ontradictory st:ltements under oath can only lea,~ to the conclusion either that the petitil'.'ncr tried to evade Ja,• t-!111 taxes due fr<>m him or that he has conce:aled the t r.ith in his .<lO· plic::ition. E ither alternative would be sufficient to disqualify him for :idrnission to l'hilippine citizenship. For all the fo1 ·egoing consiJcrations, the. deeisit'.'n ap;>enled fr()nt is affirmed, with costs against the appC'llant. IJcnyzon, C.J., Pmlilln, Labrrulor, Cflncepcion, Paredes anrl De ! ~eon, JJ., co11c1wred. Hauti8ta Angelo, J., took no part. November 30, 1961 LA WYERS O'OURNAL Page 347 1961 BAR EXAMINATION QUESTIONS (Conclusion) REMEDIAL LAW I. {a) Distinguish; (1) "admission" from "declaration against interest", (2) action from special proceeding, (3) Factum probrius from fa~tum probandnm., (4) preventive mjunction from mandatory injunction, and (5 ) aim:ndcct pleading- from a supplemental JJieading. ( b) In civil cases, when may a pleading in the CFI be amcnde<l as a matter of cou1·sc and when may it I.le amended only by leave o_f court? 11. FACTS: After the plaintiff rested his case in an crdinary civil action in the Court of First Instance, th\.: defendant filed a · motion to dismiss for insufficiency 'of evidence, reserving the r:gi'lt to present his evidence in case hi:,; mot ion is denied. QUESTIONS: {l) Suppose the court finds that th:i plaintiff's evidence is sufficient to prove a pl"fnu.i f acic cas~, and consequently denies the motion, may the court forthwith render judirment in faVL ' I' of the p!aintiff or should the c.ou1 t allow the defendant to present his evidence first? Reason out your answer. (2) Suppose the Court of First Instance grants the defend::.n!'s motion, but on appeal to the Court of Appeals. th·• lalter finds that the lower court erred, should the Cou1t of Appeals proceed lo render judgment in favor of the plaintiff, or should it remand the case to the lower court for rereption of the defendant's evidence and furthe1· p1·~eedings? III. (a) When and under what circumstances: (l) may a defendant file a third party complaint? (2) may a person be permitted to intervene in a civil action? (3) may a person file an action for interpleadet? (b) Over what <;.ases does the Juvenile and Domestic Rclat·ons Court h:i.ve exclusive orib'inal jurisdiction? IV. (a) A group of 40 laborers had been in the employ of a corporation for many years until they resigned in December, 1959. At the time of their separation from the service, they were each entitled to re-ceive from the corpo!'ation the i;um of PU,000.00 rep1·eaenting their overtime pay arising from the Eight--Hour Labor Law, as well as their gratuity arising from a collective bargaining ai'reement, which the corporation refused to pay despite repeated demands therefor. Henoo, they filed a petition with the Cou!'t of Industrial Relations against the corporation for the collection of the above.slated sum. But the defendant's counS(!I f led a 1110tion to dismiss, oontending that. it is the Court of First Instance which had jurisdiction over the subject matter. Decide the moti•m. RcaMn briefly. (b) Point out four (4) instances when a w;tness may be inte1·rogated by leading questions on direct examination. V. (a) In the special pr~ceding on the intestate of San Jcsc, & parcel of land is adjudicated pro-indiviso to heira Juan and Pedro, and Juan wants to compel immediate partition thereof. As Juan's lawyer, what would yo11 do. Reason briefly. (b) In a certain civil case, Armando, an official of the BI R, was utilized as the sole witne:s.s for the plaintiff, and the defendant's counsel wa.nted to adduce evidence to prove the bad moral character of Annan® for truth, honesty and integrity, in order to discredit his testimony. Hence, defendant's counsel called on Toribio to testify that on two dif!P-rent occasions, Armando sclicitcd bribes from Toribio in connection with the latter's tax case pending with the BIR. But the plaintiff's counsel objected to Toribio's testimony. Rule on the objection. Reason briefly. V I. (a) Ptirit out three (3) ways of impeaching a judicial reco -,!. (b) What are the rt:(!uisites in .1rder that an admission of a partner may be admissible in evidence lllf(l.inst his co--partncr? '\'!!. (a) In c:riminai actions, when may a mere sult\m()nS be issued instead of warranl of arrest? (b) Lite thrt.-e (3) instftnces w,here fin~! judgment in civil cases may be executed, as of r;ght, before the expiration of the time to appt'ul. VIII. (a) State fully the ruks on venue in infer ior courts regarding civil actions. (b) FACTS: Lazaro was an insurance agent assigned to Da· vao, with the obligation to turn over tr. his principa\'s office in !\lanila ail the pr..mliums collected by him. As such agent, Lazaro was able to collect. premiums in Davuo in the total sum of Pl0,000, but he misa1Ji;rop1·iated the entire amount in Davao. QUESTION: Whe1~· is the 11en11e of the criminal action that may be possibly :nstituted ag.:inst Lazaro for his a:Jove-descrlbed acts? Ri>'.lrnn briefly. IX. FACTS: Victor was H:e Director, :ind Lucas the Assistant Director, of the Bureau of Fort:stry. Victor met accident, Jost his dght arm and left leg, and was hospitalized for six months, during which period, Lucas assumed the position of Director of Forestry. On the seventh (7) month, Victor wanted to resume his office as Director but. Luo.as refused to relinquish tho position, c:aiminr: that Victor ha<l been perrrurnently incapacitated to dis· charged the duties of the office. QUESTIONS: (a) What judicial 1 emcdy may Victor avail vf in order lo estab~ish h is right to the office of Director of F orestry? (b) Does Victor have to bring thit matt<"r to the Office of thf' Secretary of Agriculture, and if not satisfied therein, then to the Office of the President, for administrative remedy before he gors to Court? Why? (<') Within what period of lime may Victor possibly bring an activr. aginst Lucas for the recovery of whak\"E'r damages he maY i1a\·1t suffered by rP-nson of th!'! above-described acts of Lucas' X. (a) &at<- or expluin two 1liffcrcnt general rules of " Res [,;. fer Alios Acta". (b) When is a case considered n.; presenting a moot question? (c) Mey the attorney o{ the plaintiff or of the appellant, as t11e ca~e may t:.e, be order<"! tv pay 1hc costs of the suit, :in1\ if so, when! --oOo----LEGAL ETHICS AND PRACTICAL EXERCISES (\Varning: Use letter X, never your own name, as signature of attorney or notary public on any pleading or form cal'.ed for · in thP.s'' quest.ion~. \ (a) What is the power of the Court of Appeals or a Court uf First In& tancc upon the cxiE=tence of any of the grounds for suspcusion or disbarment aga.inst a lawyer? (b) State the effect, and the subsequent prooe.?ding to m; taken, when 1<uch power is exercised. IJ. Disc:.iss the liability of an Attorney-at Law to his client for mist:lkes or errors on matters of law, and for negligence in filing necessary pleading·s and briefs, or in taking the ~teps necessary to perfect an app1:al within t he tune fixe1i by statute or the Rules of Crourl. III. (a) Upon what grounds does a lawyer !ind justi!icatioo in :·l::presenting an accused who has confessed his gui!t to him, or whom he knows to be guilty from the facts disclosed to him. Explain ~our answer. (b) A lawyer was convicted of the crime of bigamy. Su~ scqucntly the President of the Philippines pardoned him uncon· ditionally'. May this lawyer still be disban'.ed "for having been convicted of a crime involving moral turpitude"? Give reasons. (C&ntimrcd 11ext pl'!gc) Pag~ :MS LAWYERS ll'OURNAL November 30, 1961 COURT OF APPEALS DIGEST OF' DECISIONS CERTIORARI; EXECUTION OF JUDGMENT; EXAMIN1\TION OF JUDGMENT DEBTOR; CONTEMPT; EXCESS OJ~ JURISDICTION.- A judgment debtot· can only he required to apJJear and answer concerning his property and income before the Court of First Instance of the province in which he resides or is found, so that an order issued by any other Coutt of First InA ancc dedaring such judgment debtor in contempt and ordering his ttrrP;;t for iailu1e to ::ippcar for such examinatiim is nu!I and void ns issurd in excess of jurisdiction. Chiong Bu Ho11g, vs. Bien1•c11ido Ta11. rt fli., C.4. C.R. Nfl. 27345-R, Jm•e 23, 1900, .-hgclc.~ . J. CEnTIORARI; CONTEMPT ; LACK OF JUP..ISOICT JON OF COURT ISSUING ORDER; EFFECT; WAIVER.-The power to punish for contempt should be used ~paringly, with caution, deliberation, llnd with due regard to the provisions of the law and" the consiit.utional right!I of tho! in,!ividual. Disobedience of, or resi~t ance to, a void mandate, order, judgment, or decree, or one issued by a court without jurisdiction of the subject-matter aiid pa:-ties!ihi::!nt, is net contempt, and where Hw court has no jurisdictior. to make the ord£:r, no waiver can cut Qff the rights of the party to attack its validity. (U.S. Fedcial Trude Commission vs. Fair-foot Prr.ducts Co., 94 F'. 3d, 844; 17 C.J.S. p. 19, note 34.) l!Jid. CRIMINAL LAW: MITIGATING CIRCUMSTANCB: PLBA OF GUILTY WHEN NOT MIT IGA'rING.- A judicial pica of ~uih~· after thr pl"osecution had introduced its evidence is no longer a mitirr.tting circumstance (Pe:ople vs. de la Pena, 66 Phil. 459). Resid~s. a plea of guilty as a mitigating circumstance is not ap1 :\icable to a prosecution under special laws (Article 10, Revised Prnal CodC'; People vs. Ramos, 44 0. G. 3288; U. S. Barba 29 Phil. 206, U S. \'!<. Santiago, 35 Phil. 20; People vs. Maicpiez CA-47 O.G. 4226). , People vs. C1istodio T ecson, CA-G.R. N o. 18256R, June 30, 1960, f'iccio, J. CRll\llNAL PROCEDURE; PL EA OF GU I LTY.~ Upon a judicial plea oi guilty (Sec. 3 Rule 114, Rules of Court), intcrp"sec: by the accused generally upon a1·raignll'ent (before trial on the merit<;), the com1, when sa:isfied that same h•;.d been i11teqll,~:ed freely and voluntarily by the defendant who was well aware of its natul"e ,.ind consequences, may pronounce said accused "guilty" and forthwith convict him without requi1·ing the prosecution to introduce its evidence. And it makes no difference that such plea was made after the introd11ction cf prosecution's evidence. The effect is the same. Ibid. ACTIONS; ACTION FOR PARTITION: PRESCRIPTION. - Generally, an action foi- partition among co-heirs and co-owners doe,; not prescribe. This rule, however, applies only to "actions where19Vl BAH ... (Contim1ed from pa.r,e 3411) IV. A files an action to recover a parcel of land from B b:lsed t:pon a notarial deed of sale and A attaches a copy of the de~d of sale to his complaint. B claims that he did not sell his property to A, and that the signature 1mrporting to be his on the ,l.,eJ i<i li fu1·gery. As lawye1· for B, p1 ·cpare an answer, supri!ying other details. \'. (a) Define and distinguish attorney's contingent fee and champertous fee. (b) In the absence of a written contract between attorney <md dirnt, what factors are lo be considered in determining 1 hc :.tmount of attcrney's fees? Vi. (a) In the event that severnl lawyers representing a party in a case should act differently on any matte1 · relating to the l'tigation, which of these may propel"ly claim the right to bind the client? in the !"iiriits of all parties to their respective shares of the inhcrit:rnce is taken for g ranted but not to an action wherein the plaintiff's l'ight to participate in the inheritance is denied.~ (Baqrnyo vs. Camumot, 40 Phil. 857, 8'?0). Jnlio Dolar et al., vs. Eliseo Dei:rumco.t, d (ll., CA-G.R. No. 24528-R, J11ly 18 , 1%0 , Ampa"o, J. JUDGMENT; ENFORCEMENT; PRESCRIPTIVE PERIOD.A valid· judgment may be enforced either by motion within five years after entry or by action after the lapse of said period but bdoi-e it ;s barred by any statute of limitations, and a vidid <XECUtion issued nnct levy made within the five-year period after entry of judgment may be enforced by the sale of thC property levied upon, 1 >rovided the sale is made within ten years a fler rmi.ry of :,;:uC'h iudg-ment. 1\ie8lol"ci R igo1· Vda. de Q1tiambao, et aL, vs. !lfonila Motor Comµcrn.y, Inc., et ti!., C.'1.-G.R. No. 17031-R, .July 23 , 1960, Nt1livi<lml, J . OHLIGATIONS AND CONTRACTS; VESTED RIGHT, J\IEANING OF.- Vested' right has hc~n defined as accrued, fixet!, si:ttkd, :.:bto:ute, having ihe character or giving the .. jghts c.f nbsohitc nvncrship, not contingent, not subject to be defeated Ly a condition pret·ede11l. Primarily, ;'vested" is to be interpreted as 1ne11ni:lg frre (rom a ll c011ting<>rcy. In this sense, it is nea?"ly €quivalent to ';possessed." However , the word is often used in a different sense from its techniC'al 01· strictly legal meaning; thus, ''vested" has been construed tCJ mean not subject to be divested or indefeasible ; transmissible. I t has alsc been constrned to mea11 payab;e. 67 C.J., pp. 239-240. The Unit<:(/ States of A1neri.cn v.<· f',)(i1v \"t"f/el de Dfos, et 11!, CA -G.R. :Vo. 21474-R, J,tfy 25, 1900, CRIMINAL PROCEDURE; ORAL MOTION TO QUASH; EFFICACY· SECTION 3 RU LE 113 RULES OF COUHT.- Seetion 3 of R~le 113 of th~ Rules of CCiurt states that a motion to ' qu'l>'h sh:t:i bC" in writing, s1i~11ed ~~, the defo11dant or his a1k -rney", and .. shall specify distmctly the ground of objection" rc!ied upon. However, an oral motion to quash presented in open court, at an opportune time, that is, before arraignment, ~nd ba~cd on the ground that more than one offense was charged m th1: information, should be considered as effectively placed before the coul't for its consideration and decision as if it had been in writing·. Tc deny the motion for being void and inefficacious because it was not reduced to writing, is to place inordinate importance on the sha<low rnthcr than on the substance of the law, am! to sfress technicality while denying justice. Hair-splitting technicalities shculd be 0 frowned upon and avoided if they do not square with the ends of justice. People vs. fl!u1111el Ballena , CA-G.R. Nv. 20810-R. .July 25, 1960, Castro, J. (b) What duties, if any, does an attorney owe to a client, after the termination of the relationship of attorney and client? VI I. Drnf~ a motion for leave to i11krvene in n civil case. Snpply necessary tletails. V III. (a) Draw an infornlation fo1· filing in the Court of First Instance, charging an accused for estafa. Supply the necessary cietails. (b) Prepu re a motion to quash !:nid information on any of the grounds provided by law. IX. What inhibitions, if any, are imposed upon members of the R:ir who ~,.e likew ise members of Congress in the practice of the law profession and why? X. Pn•prt!·e the following: (a) Jurat; (b) aeknowledgemer.t in a deed of sale consisting of more than two pages and coverin~ three pai·cels of land ; (c) attestation clause in a last will and tcst:,ment ; (d) arfi<la\·it of Go:i<l l~aith in a Chii.ttel Mn1·tgage. No\·embc!r 30, 1961 LAWYEHS \JOURNAL Pngc 34'.) RULES OF THE ELECTORAL TR!Bl!NAL OF THE HOUSE OF REPRESENTATIVES RULE I THE l\tBETINGS SE CTION 1. Upon the designation of the Just:ces of t he ~upn·mc Court and the Members of the H ous~ of Repri..sm1tal.ives who are to compose the Electoral T1;buna\ in pursuance of section 11, Article IV of the Constitution of the Philippines, the Electoral Tribunal' shall meet for its organizatic.n and the adoption of such r<!solutions as it may deem proper. Upon the expiration of the term of the Member:.. of the House uf Representatives, who arc members of the Tribunal, and, before the designation of the new members who arc to succeed them, n.> members of the Electoral Tribunal, the O'ustices of the Supreme Court who are members of lhe Elcdornl Tribunal, sh.all co·astitiJl:: themseives ss a Division, to act on interlocutory matters that :na:v be submitt<!d lo the Tribunal, subject to the approval of the Tr!· r.unal upon its organization. SEC. 2. The Electoral Tribunal shall meet on such days and rime as it may designate Ol" at the call of the Chairman or of a majority of its Members. The presence of a majority ·,v;tl. at least one Justice shall be necessary to constitut..! a quor.lm. Jn t.he absence of the Chairman, the next senior Justice !>hell presirlf', and in the absence cf both, the Justice present wil~ take the .::hair, , in bot'• < f which cases the acting Uhairm~n shall a lsv exercise I !le powers and duties of the Chairman. Sli.:C. 3. Thf' Electoral Tribunal :rnd its divisions and cor,1. mittees sh:?.11 meet in the Session Hall of the S11p1·.~me Court !Jr at such ether plact! in the City of Manila as may be designated. When in th<'ir judgment the int('rest!J of justice require, they ma)' also hold sessions outside of l\Ianila. F or the reception of evidence or ths hearing of oral argumf'nts, a nd when deemed convenient they may meet in the Session Hall of the Supreme Court or 11t such other place as ·may be designated. Rt;LE 11 THE CHAIRMAN SECTION l. The powers a nd duties of the Ct.airman of the F.lcctoral Tribunal shall be a" follows: (a) To issue calls for the S('ssions of the Tribunal ; (b) To preside over the sessions of the 'fr1bunal ; (c) To preserve order and deco1um during the session arc!. for that purpose take such steps as may be convt!nient or as tl-e Tribunal may direct; (<f') To decide all questicms of ordn, irnbjttr to appeal by r.ny member to the Tribunal; (e) To enforce the order:>, resolutions, and ciecisions of t he Tribunal; and (f) With the rcpproval of the Electoral Trib!mal and in :'.ccordanee ·with the provisions of the Civil Service Law, to appoint f)r remove any employee of the Electoral Tribunal RULE III CONTROL OF OWN FUNCTIONS SECTION 1. The Electoral Tribunal shall have the exclu sive control, direction, an<l supervision of ail matters perlainin{; l:J its own ir.tcrnal operation. RULE JV 'fHE C L-ERK OF COURT, 8TENOGRAPHERS AND OTH F.P. EMPLOYEES SECTION 1. In addition to the Clerk of Court, Df'pu• ,y Cierks of Court and Stenrigrapht!rs, the Electoral Tribunal sh:lll h:1ve such other employees as may bC' authorized by law. SEC. 2. The Clerk of CoJrt of the E ie-ctora1 T6bunal :;h:-11 keep office at such p~ace as m:\y b:" ar.signcd to him by the T r!bunal, end shall have the followinc- duties: (a) To execute the ord".!rs. resolulions, dec;a,ions and p10cesses issued by the Elcctorn\ T ribunal; (b} To n-eeivl' and file all pleadings, and other pa~rs properly presented, endorsing on l'ach such paper tha date whe•i ;t was filed, and to atlend all uf the Session<;, of the T ribunal and enter its proceedings for tach day in a mlnutP book to be kept Ly him: (c} To ktep :\ judicial do=ket wh1.1rl'in shall bo entere<l in <'hronological order election contests a nd the proceedine-s hnd thereon ; \d) To issue under his signature and the seal of the E lt-<'· torol T ribunal the notices, onler~, resolutions :lnd dQ=isions: \V!ii--h a re to be given due course; (ll) To safely kl'ep alt rtcords, papen, filo3, exhibits, ar.o public property committed to his c.-har1:e, induding the library of the Tribunal, and the seals belonging to his .;)!fice: lf) To keep a11 account c,f th~ funds act aside for the expe11s~s of the Elector!\ I Tribunal when so directed; (g) To perform such duties as arc prescribed by law fr.r Clerks of Superior Court; (h) To keep a judgment book containing a copy of each judgment rendered by the Tribunal in the order of its date, and a book of entries of judgments containing at length in ehronolo· gical order entries of all final j udgments or orders of the CC1urt: (i) 'f o ke>1 ;p an execution book in which is recorded at leng'l.1:: in chronological order each c.xecution, and the officer's relurn theref)n, by virtue of which real property has been sold; (j) To keep such othe1· bor,ks and 1ierform such othet· duties as the Tribuual mar direct. SEC. 3. It shall be the duty of the stenographer who has attended a !:ession to deliver immediately at the c\o;;e o:' such session, all the notes he has taken, to the Clerk of Court who s:hall slc.mp the datt of receipt t he1eon, and when such notes are t ranscribed the transt:ript shall likewise be delivered to the ·cle"J"k1 dulY :nitia l:.d on each page thereof. Jt shall be the duty of the Clerk nf C.:our~ to demand that the stenographer comply with said ,rut.y. SEC. 4. Subject to t he supei-vis:ion of the Chai1man, the Clerk of Court shall be the chief of tha personnel ".l{ the Electoral fl'ibunal nmt shall be 1 ·esponsible for the faithful und proper perfot·mnnce of their official duties. RULE V THE SEAL SE CTION J. The seal of the Electoral Tribunal shall bft circular in shape and shall contain in the upper part the words " E;ect,,iaJ Tr il:ounal of the House of Representative!!," in the center, 1he coat of arrr.s of the Republic of the Philippines, anrl at 1he base, the word "Philippi.nes." RULE VI ELECTION CONTESTS SE CTION 1. Election contests shall be filed with the offic~ of the Cl~rk of Court nf t he Eiectoral T ribunal, or mailed at th~ post office as registered matter addressed to the Clerk of Cour ;.. of the E lectornl Tribunal, together with twelve legible copies thereof, within fifteen days following the proclamation of the result of the election by the provincial board of canvassers by any can•lidate votc..J foi· in said' election and who has presented a certificate of candidacy. It shnll be the duty of the Clerk of Court to serve notice and a copy of the contest "upon each respondent within five days arter the filing thereof. S E C. 2. All contests and counter contests shall be sworn tc by th'.'! parties filinc- them or their attorne.Ys. Page 350 LA WYE RS IJOURNA L Nov('mber 3(). 1901 RULE Vil ANSWERS ANO COUNTEH CONTESTS SECTI0.1\ 1. Within ten days after sc1v1ce of notice of the filing of the contest, the respondent shall file his answer thereto specifying th~ nature of his ddrnse, and se1·vc copy thereof up')n ~!tc c.::int•·stant. lf 1~·l answer is fil~l to the protest or to th.i counter-protest, within the time limits respectively fixed, a ~en l't"Bl deni:li !=hall be deemed to have been entered. A cvunter conthe Electoral· Tribunal. SEC. 2. The list of vole1·i, tho documents used in the 1>kct1a:n, ballots, ballot boxei and their keys, shall be kept and h eld ;:ecurc in the "vault" of the Electornl" Tribunal, or in such othe:piacc as may be desigiiated, in the care and custody of the Cle .. k of Court of lhc Electoral Tribunal and under thl" authority ry{ the Chairman. The rcvisic.n of the ballots by the committee on rEvision shall be made in the office of the Elect~ral Tribunal or test, 1f any, must be filed within the same period. No demun·ers at such other place as may be dE-signated by the Ghairman of the ::;hall be n~h:rlained'. Electoral Tribunal. RULE VIII REPLIES SECTION 1. Within five days after the receipt of copy of the rinswe1". the contc;;tant may file a reply. A count.n-,.ontest, if a11y, must be :mswered within ten days after the receipt of copy thereof by the contestant. RULE IX PLEADINGS SECTION 1. All other pleadings or the cor.testant Ol" tl1 e C"Ontest<'!e sht:ll be filed with the Office or the Cl~rk of Court of 1he Electoral Tribunal, togcth<'r with t.welvC' Jegibl~ copies tJ;m·cof. Any petition based on focts which ought lo be p roved shall Lti sworn to. RULE X AMENDMENTS SEC'fION 1. After th'!! perio..--1 for receiving the evidenrr: has commC'n<'ed, no amendment to the allegatio:u; affecting th•: merits of the controversy sha\j· be a1Jc,ved except when, for 'lO!"lle special reasons and because of the exigencies of the public int1•rest, the filing of such aml•ndment is perrr.itted by the Elect· eial Tribunal. Any amendment in matters ot form may be crub111ittcd at any stage of the pr;xeed'in_g-s. RULE XI FILING FEES AND BONDS SECTION 1. No contest shall be 1egistered wit.hout the payment of filing fee . in the amount of 1'50 for each contest. ShC. 2. Jn a contest or a counter-contest nryt requiring hal·!ot l'cVL>ion, the contestant or the counh:r-contestant, as the ca~e !"!lay 1*., !!hnll make a cash depc.sit in the amount .Jf P200; if a -:-cvision Of the ballots must be made, the cash deposit shall b<> in the sum of P500. The amcunt shall be depasited with the disbursing officer of the Electoral Tribunal·, unless ofoerwise specific:1lly provided, within ten <lays, after the filing of a contest or :t counter-conte8t and shall be applied to the payment of all expenses incidental to such conte!'.t or counter-contest. When the circumstances so demand, additional cash deposits may be roquired. Failure to make the cash <leposit herein provided, within lhe prescribed time limit, shall result in the automatic dismissal < f the contest or couf!ter-contest, as the case mar be, unle.s<; the T 1·ibunal shall otherwise resolve. 'RULE XII PHODUCTION ANO EXAMINATION OF ELECTION DOCUMENTS AND REVISION Ofo' BALLOTS SECTION 1. Where allegations in a contest or counter-contcs,:t so warrant, or whene,·er in the opinion of th~ Elc.-ctoral T,-;. hunal, the interest of justice so demands, it shall immed'iutely nrder the list of voters, ballot boxes and their keys, ballots 11.nrl t.lher documents used in the election to be bro:1ght before tt>e Electoral Tribunal and revised, and, for such pm·pose, it may ::..ppoint a corrilllittee on revi!!ion of ballot!<, C('lmposed of a ci>ai~·t m:i.n and two members, the appointment of wh!ch one member "and his substitute shall be propo~ed by the contr stant, and the other mem!Jcr and his sobstitu:<> shall be p1"01>0se<! h; thl' contestee, :ind fix th" cumpcnsation vf e'lch which shall r:ot excl!d fiftc>en ("Pl5) pesos fo1· every election precinct which they may ccmpictely revise ·and J"e1 >01t upon The revision of the ballot~ should be c.omp\eled within three months from the date of the ordfitr, unles~ othe1"Wi!!e dire: ted hy SEC. 3. The committee on revision shall make a statemi'r.t of th<! condition i:1 which the ball"ot boxes and their contents were found upon the opening of the same; and shall classify the b:-.1lots so examined and set fol"th clearly any objection that m:.y have been offHed to each ballot in !h1.: repc.rt ti"• be submitted by th~m. Disputed ballots shall be numbered consecutively with eel< rL•d 1lcn..:il, for IJUrJ''lSes (,f ide1oiific:ition, in the pff'sencr :u1 d under the direction of the official designated by the E lectoral Tribunal. After t-xamination, the ballots and other electirm l~Ocumcnts shall be returned to theit· respective boxes under lock. but <:isputed ballots shall be placed in a separate envclo1 >e duly :;1;aled and signed by the member of the committee which sha\"I then be returned to the box. For purposes of making said report which shall be submitted in 12 legible copies, only the preecrib:xl form D!·epared by the Tr ibunnl shall he followed. During the revision of baUots, no person other than the mel'.'lbcrs of the committee on revision of ballots and the Clerk of Court of the Electoral Tribunal or the lattei:'s nuthorized repre~entatives, and the pa1·ties, t.hcir attorneys or dui'y authorizeJ r~ prcsentativcs shall have access to the place where said revision is taking place. RULE XIII SUBPOENAS SECTlON 1. Subpoenas bha\l be il<sued by the Clerk of Court of the Electoral T ribunal to C'lmpel the attendance of witnes...c:es , who should testify before the Tribunal and may be l nforced by him 01· any of his assistants, or through the sheriff oi the province where <;uch witness reside. SEC. 2. A witness who after beinc- duly subpoenaed shall fail to appear or testify withc.ut good cause, may be tried and punished for contempt in accordance with the provision of the Rulf-:J tJf Court ir. Ille Phili11pines. RULE XIV EVIDENCE SEC'fIOr\ 1. All Cvidence :;hall be 1 ·eceived by the Electoral Tribunal sitting in bane or by a division or commit.tee thereof or by Commissioners authorized by the Tribunal. Any Division of the T1·ibuna! can designate any member thereof to act as a c.orrunittcl! of one to rea:ive evidence. Oral evidence may be received in th"' fo!"m of a deposition. The original copy of the deposition, together with twelve legible copies thereof shall be forwarded by registered mail to the Clerk of Court of the Electoral Tribunal by the off"icial who took the deposition. Unless otherwise pl'ovided, the presentation of evidence shall be terminated within ninety days from- th"' date Of the commenc001ent t hereof. RULE XV VOTING SECTION l. In pas.<;ing on all 4uestions submitted to Ha: Electo1·al T ribunal, all the M<."mbers prrsent, including the Chairman, shall vote. For the adoption of resolutions of whatever nature, the concurrence of five Members shall b<' n<>eessary. SEC. 2. During the hearings held for the i"f'cepton of e":i - Jencc, the pn•fo'iding office1 · of the Eledoral Tdburial, whether sit-ting in bane, in division, or in committee, shall decide all questions raised in connection with the examination of witn\18.!:E's and the :t-imission of evidence, and his 1 ·ulings sha1! ~ deemed as made by the Electoral Tribunal. If a Member should ask lhat a que;;tion (C'on.t111ued 11e~t JlU[!e) November 30, • 1961 LA WYERS LJOURNAL Page 351 PROFILES OF MEMBERS OF THE BENCH AND BAR J,dge CONRADO M. VASQUEZ Graduating valedictorian (C1mt ltuulc) of Uw Colleg•! <:f Law, University of the Philippines, in 1937, there was little doubt that, l'.JOMr 01 iatc1·, J udge Conrado M. Vasquez would be app.~intcd in the judiciary. F or it is in t he judicial department that our people cxpc~t and ;r·~ scholar.,;hip. It is ;ilsu lH!Cb.USC of th~ reputal\On of the Philippine judiciary for scholarship that Filipinos, to the wonder of the wo~·ld, have accepted judicial pronouncements as guiding princip:es in their way of life. The po~ition of the Philippin~ judiciary in woild law i:: unique. It is here where the way of life under the civil law of Rome and Spain merged with the Anglo Saxon law of England and America. The conflicts between civil law and Anglo Saxon law were many, often critical, hence the early demand for scholarship among the HULES OF THE ELECTORAD . (Co11tin1ted front. :mge ,151) bl: previously decided in consullation, the presiding officer shall <1ct ouly alter the matter has b~n voted upon. RULE XVI DECISIONS SECTION 1. In deciding contests, the Eledoral Tribunaj shall foliow th+, pi vt:edur~ )>rescribcJ for the Supreme Court in o;;ections 11 and 12, Article VIII of the Constitution of the Philippines, and allow any member of the Tribunal, after a matter has been de· liberatecf upon and vote taken, a period not to exceed ten <lay.:; from the date the decision is ;;igne<l by the majority within which b Jlresent a di~senting opiniCln, if su desires. His failure to do so within the period ab~vc stated, wii! authorize the Tribunal to promulgate the said decision, without prejudice to any membe;· filing any dissenting opinion subsequent to the prumdgation. SEC. 2. The de<!iaions of the Ele<!toral Tribunal shall become final ten d~ys after promulgation. The rromuli;.i.tion ;;hall be made on a <late previously fixed, of which notice shall be served in advanc.c upon the parties or their attorneys, personally O!" l1y 1·~gistered mai! or by telegram. No motion shall be Pntertained for the reop<'ning of a case except for the recon&ideration <Jf a <le<!ision under the evidence alre:i.dy of record. No party 'Tlay file m"1·c "t.hai~ one motion for reconsidc1 ·&tion, COP.V of which shall O c servod upO!L and received by the adverse party within ten days judges. Philippine judicial dezisions on this conflict are therefore studie:! .1.nt! v:tcn cited by tho:> wol'\d's b&r. The cantr of Judge Cvnra<lo M. ,Vasquez read-; like a highw:ly to the judiciary. He was born in Bifian, Laguna, 48 years agv, rnn of Castoi· Vasquez and Vicenta Moravil!a, both or Bifian. He .,-raduatcU v.:i.ledi<:tor ian of t he Bifian Elementary :-::c:~ool, 19?€ ; \·alc<lictoria11 of the U.P. Hig-h School in 1931; A.A. (C1un lr1.11d1 J Cnileg:c of Liberal Arts, U.P., in 1933; and \.'(iledictoria11 (C11111 laudc) of the U.P. College of Law in lfl37. He was admitted to the Philippine Bar the same year. He engaged in private law practice in 1937 to 1939, and ! 94'.~ : 0 1945. Jn 1939, he was appointed att(lrncy in the Dep:ll'tmcnt of Justif.!C. F rnm her<:-, he rose u11 to thC' judiciary. He was chief, legal research division, Department or J ustice, in I94G; chief, law ltivision, Department of Justice, in 1948, aml technical assiEtant to tbc·Secrefary of Justi<:e, in j951. In 1954 Judge Conrado M. Vasquez was appointed judge of the Court ~f F irst Instance of .Batangas. Jn 1960, he was cl10-se•1 •'·Provinc1e.l J udbe of the Yca1" hy the J cstice and Court Repo;-L r.; Association cf the Philippines. In l!)f:l , \J udge Vasquez wa;.; appointed lo the Cou1·t of l."i•·st Jnstnnce of Manila, Brnnch V, r.ilong with wven ether jndg•cH . He is a professo1· r.f law :n the F.E.U. Institute of Law. HI' nlso served as profrss<•r in other law cl)lkges such as the Naticual University C(lllege of Law, the Philippine Law School, and the U.E. College of Law. The opin:ons he prepare.cl in the Deprntmcnt of Ju!<tice, and the decisions he rendered in the courts of Batan~as and Manila i·•· fleet the judicial quality of a brilliant mind. He does not have any specialty in iaw, and brings to every case before him a wai·m nnd ;;~·mpathetic personality and a brilliant intellect. At age 48, Judge Vasquez is one of the youngest judges in 1 he judiciary. The path that was drawn for him in Bi flan, a!ld through the University of the Philippines and Department of Justice, keeps extending towards higher and higher responsibilities. dtt.r promulgation, who shali answer it within fh•e days aftPr lhe receipt thereof. SEC. 3. As soon as a decision becomes final, not :c~ thereof d!all be sent to the Secretary of the House of Representatives, the President of the Phliippines, and the Auditor General. The 01·i~~inals of the decisions of the Electoral Tribunal i;hall be kept ii. bound form in the files of the Tribunal. Decision::; shail l.c µd>t:sheJ in the Official Gazette and printed like the decisiurn; of the Supreme Court. RULE XVII SUPPLEMENTARY RULES SECTION I. In so far as they may be applicable and arc1 not mco11sii;tent with these rules and with the orders, resolutions and decisions of the Electoral Tribunal, the fol:owing shall l'C in force as supplementary r ules of its proceeding'S namely: (a) The Rules of Court in the Philippines; and (b) The decisions of the Supreme Court and the Rul<:.•!J of the Courts of Justice. RULt; XVIII EFFECTIVITY SECTION I. These Rules shall take effect upon its approvai und, notwithstanding the periodic dissolution (lf the Electoral Tribunal, shall be operative until amended or sµbstitutcd by a newly coHstituted E lectoral T ribunal. Adopted, Febl"uary 14, 1958. 3!i2 LA WYERS I.JOURNAL November 30, 19Gl Lawyers Directory ALMACEN, VICENTE HAUL l,AW OFFICES ::.uiie S116 J\i:rnna\l;iH U1di:., 418 Nuevn St., :\Ianiln Hesirknce: '!'els. 7-~~-r.S. ~-32.,1 1 Office: Tel. 4-75-81 Locn! - 16 ANTONIO. HOMAN Il. lt-4~0 /fornnn Santos llldll'. ?Jam Goiti hlnuila Off. T~b. 3-~1-~0 :l-61-t.O n ..... Tel. 2-46-;JG AHANAS, JOSI'.: H-an 1 !Jank of thQ Phil lslnnd llldi:. Pln:.<a r.,er1•nntcs, J\lauib ~-6~-55 3-87-49 ARTURO A. ALAt'RIZ & ASSOC IATES ,\ltui·n.,ys ,171 1,;ounsdlurs ut L;•w Sune 106-4\18 He:;::iu" llhlw:. E~eoltn , MHniln Francisco Law l\-2VI .Snnt;inillo IJldi;:. 1';sc•Jltn, Manila 'l'el.3-33-H llEltNALDO, l!ll:AflDf• Asst. Attonu:ys: L""""''dU S. IJnlnn J("'""" N. n.,1·11nldo Suite 303 Cu UnjienJl' Uhl11:. ~V~ Dasm;.,·iii=, Manih• Hesidence: Aunn·u lll'"'L con"·' IWENDJA, Stn. Cru~. 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V !CJ,;NTE J. lt-~01 Sanu•nillu lluildin)l" E"'·olta, lllnniln Tel. 3-33-61 GAil.Cl \ . IlJE.'<VEN\00 L. 210 C11t.·o Bid:.':. Esco!ta. Manila GONZALES. HAFAEL tf>!' !>1a. "l"~t·esil<I, Sampaloc \faniln l'el. 6-~0-9 ·1 1:uT11rni0::z. VALENTIN' I.:. Hn:s •. \0~-41 1 IJoo·ja , Bl lie r..11 l(izal A\u., Tel. a-71 -~< 1:UZMAN. tlU~llNj'.;0 l~. Suil,.. 312 1...-1, HIJg. J\!anil" Tel. 3-4:•-&I ~~~·~\'~· J ~~~~~~G2 , DK Gulf.~lAN. l'J\Uld,;Nt;l0" 01'.:, H-t\'ol LC)ii:i W.lth;. JIH Uasm:u·1irn•. J\lauilu Tel. N,,. a . .!1-··~ · W 1 \Nl•;Z. IJENEPIC'J"O 'l" H n. 420 ll"lJUbli · S•ll>Cl" Hiz"I A•""""· ~Jani!.. 1·,,i. No. •-~a-~ 1 JOJ:l.MN "l'Et"ll!CO L AW O!•'l'IC~;s f\•sudat~.,;: Cusitnil'o S. l'e JUUl.':C L. J. ManceniJo Suite ~01·20~ Hun Cht!!l!l llldi.: .• Gll T . l'iupin Curnei· Oni.:vin. M"•oila T el. 2-H7 -~·L Jab"/[,:. <le !ru Sautus TY. OLJVEH Bf\NAYO GESMUNDP, V ~~D AS'J"C Jl. G~;:o,!llUNDU. BAYANI !IL\ HlN C & 110!:.El. I•. l!AlllOS-c/o Con1ctl,..rntinn <>i ("itiz•""• Lahut• lln(<rn (CCLVI Hm. :Wl F, . .,., f'1·•·•s ll!<I·'·· 70~ lti zol Av~ .. Td. 3-8~-71. l·t9·37. l!o·an"h 0(l!i~"I A•c .. San p,.i,],, City (e/o o( Coco n ut \,'oo•l;cL< (Sa n Pa!ilo City •~haplC1) - CCLU) LOHENZO J. LIWAG l. 1 \W OFFICE :;uilc 30~ l'i·ce l'•·e•s Bltli.::. 708 Wznl A•·cnuc. M"nila ~JENl)IOl.A. !>11\ll •'!AL G. S-20:< QLobp<> Huii.ling 7"8 !li<J,,li.::o. Plnz" Mfrantla ' " " " i I a Tel. 3-i3-R8 MOlt1\LES. ErlNESTO T. 424 Sin~""" Bodltlin-t Pb~a Mot"Ol1J:'1. Manila Tel< ~-~2-% & 4·2~-65 n,,,.. 1921 n,.k<>tn. Mnlnte. QLIV EHOS LA IV OFFICE Trotirn6 ·1'. Olivero~ t 1" Gcronin"' 5' .. Samp1doc. !>lnnilu '!'el 6-11-1~ M.'\H!O Hf\;IQS ]("''""' Saulos Bl.Jg. \]oiti. J\!a11ila ~~-\!!%. 3-'10-~U JUEL, TIWUOHO 'I". He•. I:! \ '""."'"'c1· Cubno. Q.•H•>e• City Tel. 7-·11·2:\ Office Tel. Oi-:'•0-80 ·r A YSON l\OSA1110 Off•ce: )(no. 217 C.1·ectl Ea~ te ;· n ltotd J~eh:.i;uc. M"nila Tel J-30-70 lk s ideri•·c: ~1:1 ll•>OSC,.cll Avenue S:on F1·n10ei~ro <lei !>lm•1C Q•Ud'I (')t;• ']"el ·;-~;,-:~2 HOXAS. fltJUEN L. 2U"? C~lvo Blthi. Esco.>lt"· )lat1;in Tel. a.r,c-o~ SAN .JUAN. ,\l•ntCA & B£Nr.DICTO LAW OJ•!"ICJ-:S j~(I l'a,J,.,. [o".,.,,·a. J•:,m;h. J\l~nih> T•·k: G-70-i~ & r,.ju-";;; SANTOS .. 1os1,; T. 01,: LOS :;ANTO">. r"IHIA("O T. f>E I.OS SAN"l"l> ~ .. 101:(:1-'. T. lH: J.O:; ;!no\ l'lt><w E~lA Bid.:. N o. ltf \~~Ii .. • p~:~4~1i'~\" i I" SYQl l l \ I Al\ UJTICJ·; J-:l'<IOQlH: I'. S\(jU IA Audi·e• [,. fb lt"z'll" l:on..:"l" 0. Vilhn .. ev!l. Ji•. J"~~ I F~rrei\ J• ltnos. ~~~ & ~2(; Snnlanilln JJl~i.r. Escolta. M"niln Tck 3·7'-52 & •-IS-70 E!>IEIWNC IANA g. PAC HECO·TIGLAO 2Hl-ll San Anton. Man ila V ALMONTE LEON AJlDO P. Offkc: Fi·anci•co La·.v Offi~e• !t.-201 Samauillo lluilding Escoltn. ~bnila n.,,..: 2:J80-C Pcnnsi:Ivnnia Malate. 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