The Lawyers Journal

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Part of The Lawyers Journal

Title: The Lawyers Journal
Issue Date: Volume XIX (Issue No. 3) March 31, 1954
Year: 1954
Language: English
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extracted text: APR ~ ~978 I JM_ t.A WYERS JOURNAL MANILA, PHILIPPINES MARCH 31, 1954 NUMBER 3 VICENTE J. FRANCISCO Editor and Publisher LOPE E. ADRIANO RODOLFO J. FRANCISCO Assistant Editors ADELA OCAMPO Business Manager RICARDQ J. FRANCISCO Assistant Business Manager THE LAWYERS JOURNAL is published monthly by Sen. Vicente J. Francisco, former delegate to the Constitutional Convention, practising attorney and President of the Francisco Colleges (formerly Francisco Law Schoo]). SUBSCRIPTION AND AD. VERTISING RATES: Subscription: 1"18:00 for one year; Pl0.00 for 6 months. Advertising: Full page - !'105.00; Half page - f'65.00; EVERY MEMBER OF THE BAR AND BENCH MUST RECOGNIZE THEIR RESPECTIVE RESPONSIBILITY - By Chief J ustice Paras SPEECH DELIVERED BY MR. JUSTICE SABINO PADILLA AT-THE OATH TAKING CEREMONIES OF THE 1953 SUCCESSFUL BAR CANDIDATES . SPEECH OF PRESENTATION - By Atty. Frnncisco Ortigas, Jr. MR. BROWNELL'S OPINION ON U.S. BASES MR. RECTO STATES THE EHILJPPINE CASE SUPREME COURT DECISIONS: Vda. De Roxas vs. Roxas - Justice Paras ... Semira vs. Enriquez -· Justice Paras ::~~~·cav5~s. y;~c:o~:j'u~t~~:f ~~~~i~!a~:;a~ . Dikit vs. Ycasiano - Justice Feria Berg vs. Teus - J ustice Tuason Lerum vs. Cruz - Justice Bautista Angelo Ornedo vs . R3.mos - Justice Tuason Siguion vs. Tecson - Justice Reyes ... Hernandez vs. Peiia - Justice Ozaeta Paranete vs. Tan - J ustice Bautista Angelo . Fabella vs. Tancinco - Justice Reyes ...... . , , • , .•. D$gala vs. Reyes - Justice Feria . . . . ... . Ledesma vs. Morales - Justice Montemayor .. . .. , , .. Semira and Mercado vs. Enriquez -- Justice Padilla ... ....... . Goycna de Quion vs. Philippine National Bank - J ustice Ozaeta . Villa vs. Iba1lez - Justice Tuazon .. ... ...... ...... ... , ... . . ..... . Urban Estates, Inc. vs. Montesa - Justice Tuason ... .... . Manila Herald Publishing Co. vs. Ramos - Justice Tuason ' .. REPUBLIC ACTS MEMORANDUM OF THE CODE COMMISSION - Continuation PUBLIC CORPORATIONS - Continuation LAUGHTER IS LEGAL One-fourth page - P45.00; One-eight page - P35.00; Onesixteenth page P25.00 Entered as second class mail matter at the Post Office. * * BUSINESS OFFICE: 1192 Ta.ft Avenue, Manila. Tel. 5-43-55 109 109 110 112 112 121 126 128 129 131 132. 133 135 136 137 138 138 140 140 142 142 144 145 147 150 151 155 160 EAST PUBLISHING 1192 Taft Avenue Manila Tel. 5.43.55 FRANCISCO LAW BOOKS JN SERIES RECISED LIST OF PRICES AS OF JANUARY 6, 1954 Civil Law in 4 Vols. r:fo.90 per volume . Trial Technique and Practice Court in 5 Vols. Criminal Procedure & Forms in 2 Vols. Criminal Evidence in 3 Vols, Revised Penal Code in 2 Vols. (1954 Edition> . Labor Laws (1594 Edition) Legal Ethics . Legal Thesis-Writing . Legal History . Legal Bibliography Legal f\esearch Negotiable I nstruments Law .. .. Insurance Law Revised Election Code C1953 Edition) Rul<?s of Court Vols. I & II ... Philippine Mining Law Vol. I .. Philippine Petrnleum Act Vol. II . Philippine Law of Waters & Water Rights Code of Commerce (With Annotations) Land Registration Act Statutory Construction .. , Taxation .. Roman Law .................... . Law on TranspOrtation in 2 Vols. Introduction to Law .. Legal Argumentation and Brief Making . . Partnership . Agency . Securities Act J urisprudence ...... . . . . . .. . How To Try Election Cases . Business Law in 2 Vols ..... . Credit Transactions in 2 Vols. Laws on Natural Resources . Pre-Bar Review on Evidence . .... . . Pre-Bar Review on Public Int. Law . . . Pre-Bar Review on Private Int. Law .. Pre-Bar Review on Mercantile Law .. Pre-Bar Review on Political Law . . .. , .... . . . Pre-Bar Review on Civil Procedure (P leadings) Pre-Bar Tieview on Criminal P rocedure .. . ... . Pre-Bar Review on Land Registration & Mert Pr'O'-Bar Review on Adm. Law, & Pub. Officers . STILL IN T HE PRESS Administratin: Law P ublic Officers . Legal Forms . ......... . Evidence in Civil Cases . Civil Procedure ..... Public Corporations Private Corporation r 123.60 154.50 " 30.90 61.80 51.50 35.45 l:0.30 10.30 8.<!5 6.20 6.20 10.30 15.45 8.25 51.50 10.30 8.25 6.20 10.30 15.45 10.30 10.30 8.25 12.40 8.25 12.35 8.75 8.25 5.50 12.35 25.75 30.90 12.60 9.30 10.30 5.45 5.45 8.25 6.45 6.45 6.45 G.45 5.45 p 30.90 25.75 25.75 51.50 51.50 25.75 41.20 NOTE : Prices herein aboue qiwted are snbject to change without notice. Sales tax included. Fo r provincial order of one book, an additional Pl .00 is charyed for mailing and handling expenses. Reduced subscription rate to the LAWYERS JOURNAL Effective January 1, 1954 the Journal can be had at - - - P18.00 for 1 year, instead of P24.00 ; Pl0.00 for 6 months, instead of Pl2.00. The subscription rate for 3 months and the cost per copy remains at P6.00 and P2.00, respectively. Subscribers who made advance remittances under the old rates will have their subscriptio~· extended in accordance with this new schedule Subscribe now to the - - LAWYERS JOURNAL 1192 Taft Avenue, Manila Tel. No. 5-43-55 B 0 0 KS MAGAZINES ANNUALS BROCHURES CATALOGS LABELS ---SOUVENIR PROGRAMS AND ANYTHING THAT IS 1.: PRINTED Capitol PUBLISHING HOUSE, I NC. ..Home of l'ine O ff~ t Printing" A lh mon Uous Publicatioru Sub•idiary Tels: Oial & O ukforll&-J ~or60askfor16S-J - EVERY MEMBER OF THE BAR AND BENCH MUST RECOGNIZE THEIR RESPECTIVE RESPONSIBILITY• By CHIEF JUSTICE RICARDO PARAS 1 have been wondering whether your invitation for me to address this National Convention of Lawyers is, witting'y or U':lwittingly, a mere ruse of getting evf'n with us, the members of the Supreme Court, for subjecting lawyers to the ordeal of interpellations durini:o: oral arguments which, though often giving r.redit to many, emtari·u.ss s~me to the point of showing their Jack of preparation. Th<:! lawyers may want to make it a'Pnear that, by a poor speech he delivers, a J ustice is not after all as good a sd1ofor and jurist as he sl:'ems to be when confronting lawyers. With this apprehension I will avoid rhetorical flights, dogmatic references and pcntifiral asserti\•eness, and thus refuse to take the test, so to speck. The l'xpert consultants and members of this Convention have already dwelt upon many subjects requiring academic and highly technical dt·liberation and treatment, in addition to the brilliant guest speakns that you have previously heard, and I am therefore left in a sitnation where I have merely to limit myself to some -0bse:-vations gained from personal experiences or otherwise warranted by factual considerations. At any rate, a modern version of Chancellor Lyndhurst's definition f)f a good JuJge - a'ld a Jus'"ice i'o!· that matter - is not, that he mur:;t be a. great scholar and jurist, but is merely the following: " F'irst, he must be honest. Second, he must posSC'!l:i a reasonable amount of industrr. Third. he must have coura.cte. F'ourth, he m\:st be a g<'ntlemnn. And th1m, if he has S")me knc·wledgt> cf law. it will help.'' I can perhaps inv:>ke this definition ~o cover up any shortcomings. But one gc.-od quality ?f a Judge is industry, a.nd b. an attempt at c'.'<emplification. I have chosC'n to gather and present facts regat·ding ~ur bar and judiciary with a view. at least to provoking some thou~~tbegin with I may inform you that. as of the year 1~52, therP. nre in our country 12,823 lawyers. including the unknown deM. In U.is connection ourS is always a feeling of pride and satisfaction wher.e\·er groups of new lawyers are !'worn in before the Suprem,; Co:.irt, in great contrast to our disappointment whenever attorneys plead before us in defrnse of themselves against disbarment proee!?dings. Incidentally, since the liberation s.lone we have received 160 complaints for malpractice and at least five lawyers have been reprimandctl, l'Uspended or disbarred. The increasing number of bwyers should not cause a.ny alarm. Those who have already an established lucrdive practice need not worry about competition, and those who are new and merely forging a.head in the field .still have plenty of room because, with our popu!ahon of l:trenty millions, there are about 1.559 for every lawyer, even assuming that all the lawyers listed in the Uoll of Attorneys are practicing, which is very far from the truth. On the other hand, as of 1940 .ilone, there were in the United States (with a poµulat:on of 131,822,000> 180,000 lawyers, or 732 for every lawyer. As ~ matter ?f fact, m~y of our recorded attorneys have d~ed or are not engagerl in the. active practice of law, being emplo}·ed in one capacity or another rn or out the Government Service. Accordir.g to statistics released by the Bureau of the Census, there are more physicians than law prac~itioners and that there are only about 1,500 lawyers u:tually engaged m the legal profession. Moreover, a great majority of Jaw ~tudents are aiming merely to utilize the law course or membership ~~i:i~;. bar as a means for cultural upliftment and general practical The bench is not entirely free from blemish because also since liberation 371 administrative cases have been filled ag1inst ju:tices of the peace. The grounds are many and varied, ranging from the minor and petty act of arrogance to the serious crimes of bribny and t:.tortion. During the same period there have been filed in the Sup1·eme Court 30 administrative cases against judges of first instance. Now, to give you an idee.. of the dockC'ts of our courts of first instance throughout the Philippines, without mention'ng the number of finished cases, I may state that at the end of the year 1948, there • SPttCh deliver~ by Chld Ju1tlce R!cardo P arn or the Supremo Court at tho National Convel'ltlon of Lawyei1. De.:eDlber 30, 1953. - 0 UNlVE1t;1 ·r y OP Tll F l'lll Ll :·n .. LUlRAl\Y SPEECH DELIVERED B~IMM f~liTICE SABINO PADILLA AT THE OATH TAKING CEREMONIES OF THE 1953 SUCCESSFUL BAR CANDIDATES ON 18 JANUARY 1954 Members of the Bar: To the Chairman and Members of the Board of Examiners goes tl:e Court's appreciation for the splendid work done. To the new Members of the Bar go the congratulations of the Court. The taking of oath "n this solemn occasion has made you officers of the C1Jurt. It is a milestone in your life. It is portentous. It mny mean success or failure. It lies in yqur hands to make it a success. Your success would dep,,nd upon your efforts to mah yourself worthy of the profession ycu have embraced. The successful completion cf your studies, your passing the examinations a.nd admission to the bar mal"k only the beginning of ·your struggle for success. What really and actually means is that you have to wortc harder. honestly, conscientiously 'lnd co'."ltinuously, if you expect to succeed i:i our chosen profession. Your adrr.iss'on to the bar is a sort of a degree that enables you to .pursue advanced studies. A l1;wyer's preparation is like that of r. scholar in the coliege of liberal arts who. orter finishing the coll"?ge courses, may pursue professional sludie!I. But the lawyer's <legree is, of course, on a higher plane, l.li;>cause he may branch out in the un:vcrsity of p!'actic2.l life into rliffercpt (i(']ds of human ende>avor, for l:iw p!?rmeates, iniluences nnd contre>b t!Very human -:ictivity. So that those who Yil'w with anprehrmsion the ever incrrasi:ig number of lawyers should not be aiarmed, because not all those who ha,'e been admitted to the bar are to practice law. They may venture into diverse fields of human endeavor and their lc~al l:>arkgr0\1nd is a good foundation which Piab!es them to p!?rform more dficiently end successful'y their duties and functiona. In fact, a lawyer is better prerared tn ass11me greater and more comrJ!icated resronsibilities. J. Learned men hav~ considered noble the profession of a lawyer. It is so when in the pr.'.lctice of his profession he is inspired by loftly abd noble ideals. On occasions like this it seems customary and proper to give an Q,dvice to the neophytes. There is no better advice than to follow wha.t in the oath you ha.ve solemnly declared, undertaken :ind promised to do. Your outh is a solemn profession of faith to God by which you have irrevocably undertaken and promised to owe a:i.d m:iintain allegiance to your Republic; to support its Constitution and obey the !?..ws and the legal orders of the duly constituted authorities That i.; your duty to the Government. y...,u have vowed to do no falsehood nor consent to the doing of <!."lY in cc.urt; not to promote wittingly or willingly any groundless, false or unlawful suit nor give aid nor consent to the same. That is your duty to the courts. You have r romised to delay no man for money or mnlice, to conduct yourself ~.s a lawyer ecrording to the best of your knowledge: and judgment with all j?ood fidelity to the courts end to your clients. You havP made these commitments freely and voluntarily withnut 2.ny mental rcsrrvntion or purnose of eVasion. And z.s a fitting climax to all these underbkings and promises you h~ive asked, prayed and invoked the help of God so that you may fulfill thtm. I ca'lnot tl1ink rif a n:ore sublime act than the oath you have just taken. Yon ha"\"'e made it to the Supreme Court of the Republic as the lawful 'lml legitimate repreFentative of GOO. Fulfillment by you of the promises made in the oath would spell success. A violation of any of trem would b1-ing about and result in failure. May the Almightly God guide you in your efiorts b:> fulfill them. A good suggestion would be !o have this oath you have ju3t t aken framed end have it before you in your bedroom or study room. After reciting your daily prayers and before you start the dny'3 grind, you should read your oath a-d ponder on its s:gnificance. It you realize what that oath means and try to live up to it, then n• · one of you would fuil. The Court wishes you all Godspeed. Manila., 0 18 January 1954. March 81, 1954 THE LA WYETI~ JOURNAL 109 EVERY M:El\'IBER OF THE . were pending 38,738 cases. This was increased to 40,973 at the end of the year 1949. By the end of the year 1950, the number rrached 43,289, and this was enlarged at the end of the year 1951 when the total was 45,848. This upward trend continued until the end of the year 1952 when the number of pending cases in said courts became 52,171. Of this last figure, 13,245 are criminal cases; and 23,632 are special proceedings and cases of miscellaneous nature. Many of these cases a1·e perhaps not ready for decision. In the Court of Appeals the number of cases docketed from 1946 to 1953 is 12,104, as against 9,516 cases disposed of up to 1953. As of December 28, 1953, the number of cases pending decision is 974. Lest I may be charged with hiding the status of the docket of the Supreme Court, allow me to tell you that from 194.5 up to December 7, 1953, 7,304 cases have been filed and docketed. From 1945 up to yesterday, the Court has disposed of either by decision or by r Esolution a total of 6,587 cases. I wish to inform you that, as of today, the number of cases submitted to a pending decision by the Supreme Court is 510. Of this number, 3 cases are of the 1950 calendar; 4 cases pertain to the 1951 calendar; 53 cases are of the 1952 calendar; and 465 cases are of the 1953 calendar. You will note that there are no cases older tha.n 1950, and the cases bdor·e 1953 are only 45 which, together with the 465 cases of the 1953 calendar, thC' Court will take up and dispose of beginning January, 1954. Many of these pending cases have been voted, awaiting the preparation o( the necessary opinions. After the summer of 1954, I estimate that we sl1all have disposed of by penned decisions a.round 250 cases, and our docket will then be almost up-to-date. In this connection I am please>d to announce that in the year 1953 alone we have written "finis" to 957 cases, or an average of about three cases a day, which represent pe1·haps, modesty aside, a. good working record. One reason for the improvement of the docket of our Supreme Court, apart from the fact that every member has been working as hi;.rd as he '?.an, is undoubtedly the circumstance> that, notwithstanding its right to vacation periods, the Court continuously is in session throughout the year, - something that perhaps makes it unique. Allowed by statute to hold summer sessions in Baguio, with corrPsponding appropriations from year to year, the Court, animated by the temperate elimate, is usually able to promulgate in two months aboJ~ one third of the total number of its decisions and resolutions in One year. Of course, by foregoing the yearly vacation period, every mt!mber of the Court is able to accumulate as much as one-year vacatiofi leave; but as a matter of e:icpedient policy and in the interest of the sHvice, the Court sees to it that not more than two members go on leave at a time. From the facts and figures I have just pointed out, I have drawn a few observations which l want to present for wha.t they maybe worth. Let us begin with the increasing number of disbarment proceedings which, as I have already mentioned, occasionally make it our painful duty to impose certain disciplinary measures on erring attorneys. If only to lessen the work of the Supreme Com t, would uot this Com·ention feel con~trained to do something calculated to minimize, if not eliminate :?.!together, the cause for suspension or disbarment? Of course, I cannot be mistaken when I state that one sure way. of preventing complaints against lawyers is for the latter tc· faithfully adhere to the oath of office which they a1·e required to t(lke before their admission to the bar, and for them to comply st rictly with thP. duties of attorneys enume;a.ted in sec:tion 19 of Rul<' 127 nf the Rules of CClurt. I need not refresh your minds as to the contents of the lawyer's oath and as to his reglementary duties, and I merely l1ope that you have not forgotten them or, if you already do, ycoJ would C'Ccasionally read them over. There may be some humor in this, but I have often heard the remark that, as a. new lawyer is nvorn in and reads his f)ath before the Supreme Court, he feels navous and faltering when he reaches that part which says that "I shall delay no man for money or malice," because this is too much of an obligetion ti) impose upon him who intends to p:•artice law. Stated more bluntly, the idea of depriving himself of the prospects of earning money in any way is too hard for a lawyer to swallow. Certainly =.n attorney has to earn and live like any other professional, but don't we think that, if we cannot earn by justifiable methods, it would be better to give up the law practice? SPEECH OF PRESENTATION By FRA NCISCO ORT/GAS, Jr. (Metnber of the Bar) January 18, 1954 MAY IT PLEASE THE COURT: The honor of presenting to this Honorable Court, for admission to the Bar, the candidates who successfully passed the examinations given last year haS been bestowed upon me. Allow me t;, acknowledge my appreciation of the privilege with the observation that there are other members of the Committee of Bar Ex2miners. far more brilliant and experienced in the law than I, who could have lent greater prestige to this task. Your Honors, before making my formal presentation, and as is usual in occasions of this naturC', let me express ~omc thoughts and hopes for these successful ca.ndidates. I sh:i.11 be brief in my remarks for, recalling my own reartion as one of the successful Bar Candidates in 1931, I feel that the candidates I am nuw in turn sponsoring arc likewise aware only of the sol('mn form'.llity of these rites where they have to, fi rst : listen to a speech '>f pres<·ntation by a member of the Committee of Bar Exe.miners; second: take their oaths; and third and last: attend to words of advice from the member of this Honorable Court designated to address them en their admission to the Bar. Whatever substantial meaning there might be to this gathering will be lost to these candid'.ltes either Fpontaneously or within the passage of a vel'Y meagre meMme of time. Most of them arc perhaps even now wishing that these ceremonies were over so that they can the sooner join their intimates and loved ones. Indeed, it is not strange for young people to live in improvident hopes for thP future without realization that the pattern of that which is to come is in the ma.in worked out by t1ctivities and preparations of the present. Now-a-days, major undertakings are seldom pursued without a plan. It is now generally conceded that a project should not be Jpft to improvisation as it takes its course to a conclusion. A commanding officer must even ha.ve a plan of retreat ;;hould the fortunes of war turn against him; oth-:?rwise, his forces may be totally annihilated. l know that the course of an individual's iife cannot be deliberately and exactly planned. ParaphraEing Shakespeare, we a.re all like swimmers in the sea, and the ocean waves and currents may cast ui; ashore or take us farther out; only the event will tell in its coming. Be that a.s it may, planning for our lives is not at all without value. The candidates I am sponsoring, for example, lui.ve planned to be lawyers, and they will be admitted to the Rar i11 a few moments. My late and revered father was an almost indigent student in his clay who could not finance his own schooling. He wanted to be a Pharmacist, but the worthy fathers who gave him his high school training recognized his aptitude for the study of law. They offered him free tuition in the college of law, and he had to take it in preference to the payment of fees in the School of Pharmacy. It turned out to be good planning for him. Planning for a lawyer, after h~s admission to the Bar, is difficult. I must confess I did not have the benefit of one. But I had, instead, a human idea.I in the person of my father by whose standards I sought to guide my own behavior. My father once remarked to Senator Laurel' as follows: "If you have lost your money, you have lost nothing ; if you have lost your health, you may have lost something; but if you lose your honor and int'!'grity, you will have lost everything". That simple principle, inur afia, has steered me to where I am; - not a very successful lawyer perhaps, but one happy and at peace with his own self. The establishment of an ideal to emulate is within the reach of all these candidr.tes. The lives of Arellano, Arau:Io, Mapa and many othe~ luminaries in Hench and Bar are open books, and the prinr.iples -they followed belong to the realm of public property which anyone, with the desire, can appropl'iate to himself. Once a n icieal has been fixed as a goal, it will serve as a guiding beacon light and it should be relatively easy, once in a while, to stop and ponder on whether or not the young lawyer is still going in the direction of that goal, and how much progress he has made in the meantime. With hard work and perseverance, and an objective in mind, the chances for success would be much more than where one is just drifting aimlessly in the struggle for exi5tence. 110 THE LAWYF.HS JOUR~AL March 31, 1954 \ EVERY MEMBER OF TH1' . SPEECH OF. Admission to the Bar is technically thP culmination of pre.. With rcsp'!ct to the al~ing number of administrative cases pa ration. it is also technically the start of operati:m. But the against justices of the peace and judges of first instance, I m!'.l.y say field of 'iaw is so vast that we can never say that the activity of that, in the majority of cases, the grounds are unfounded or more preparation or study is really ended. A lawyer continu.es t~ ~tudy or less motivated by dissatisfaction resulting from unfavorable deci- and still learn as he works. I am reminded of the following mc1dent sions. However, we cannot dismiss lightly the unwholeMme effect of in my father's life. After his own admission to the Bar, he apsuch administrative proceedings, and the bar should impose upon plied for a law clerkship in the law office of the deceu;~d ?e lcaza. itself the duty of being alert about the conduct of all members of Mr. De Icaza took my fathei: to his library and asked him 1f he had the bench and, always consistent with fairness and truth, reporting read all the books there. My father, of course. replied in the negato the proper authorities anyone who is derelict in the performanc!! tive. Mr. De Icaza then told my father that in order to be a succes11of his duties. Upon the other hand, if the members of the bench wi!l ful lawyer, he must read a.II these books. ThP. incirient is an ~xtreme only perform rightly and firmly his jlldicial !unctions, he nef'fl example, but it portrays the necessity on thf' part of the lawyer :'J not worry about any .'.l.dministrative actions. work hard and to be constantly wide-read in the literature of his On matter of the increasing number of pending cases every profession. year, without touching on the point whether there are sufficient A lawyer should not cultivate only the factors that m~ke _ for courts and judg<\"s to cope with the judicial work, I think much can success. He must also strive to have traits that will mak!! him a be derived if every member of the b<:nch, from the lowest justice o[ happy man and a good citizen. He must be fair to his adversar~e~; the peace to the highest Justice of the Supreme Court, should.assume he must be true and loyal to his friends. He must possess a c1v1c and feel that it is his responsibility to accomplish a.s much wvrk consciousness. And with sif{llific~nt emphasis, I wish to stress as is humanly possible. He need not kill himself by overwork, but he th<' fad that he must also fully appreciate the quality of gratitude. can, if he ~vants, set a standard that is consistent with his capacit y The man who knows how to be gratE:-ful to those who have hcl!)ed and health, the amount of work to be done, and the sayir.g that him is the man who will reap success and happiness together. Grati"justice delayed is justice denied." At this point I ma.y return ti:> t ude is a tender memory of the heart. I trust, above all, t'!lat thf' modern version of the definition of a good judge by Chancellor these candidates will never for an instant forget the debt they owe Lyndhurst requiring "that a goo<l. judge must possess a rearnnab!e their parents or any other people who have made it possible for amount of industry!' In other words, every mrmber of the ben<"h them to be preser,t at this oath-taking. is expected to display at least a reasonable amount of industry, and · As a rule, the average man is more emotional than rational. when he can no longer meet this, for the good of the service an:l The requirement for lawyers is quite different. He must alwuys of himself, he should retire. I am ha.ppy to ::idmit that the Goverr.- be rational, never emotional. Justice is founded on reason, never ment has shown its liberality and earnestness to 11rovide for an on emotion. 'fhrre is no known way by which human justice can be adequate system. dispensed by agencies without the aid of the human judgment, a nd Hand in hand with the efforts exerted by the members of the for this reason the administration of justice can never be perfect. bench towards disposing of as m.'.l.ny cases as possible, the members Human judgmeont cannot be infallible. This circumstance should of the bar are c.'.l.lled upon to give the court all the aid necessary all the more inspire these candidates to seek truth and justice withto achieva thP. purpose. The lawyer should realize that, as the one out emotion. They might do well to ever repeat this prayer to St. in effect controlling the progress of a tri:i.l or of a proceerlin~ on Thomas More, patron saint of lawyers: appeal, he is re.c:;ponsible - perhaps more than the court - fo1 "O Almighty and Eternal God, Judge v.nd Lnwgiver, . clogging the judicial docket. The court can decide, under crdinary send your Holy Spirit upon me that I may have light to know circumstMces, onlY as fast as the lawyers can submit a case fo: what is right, wisdom to analyze and interpret the tangled decision. And while courts are established to administer justice, strands of human perplexities, and strength to act upon my not. infn-quently, justice can be achieved and secured outside of a honest convictions. Never let me use any situation or informajudicial tribunal. Sometimes a just and amicable, extra-judicial, tion to my own unfair advantage. Let me be fearless in desettlement or compromise, satisfactory not only to your client but fense of justice. o good St. Thomas More, give me of yo11r also to thr adverse party, ean he arrivrd at, y."ith the use o! a little fortitude and wisdom. P ray that our country may have just tact anrJ patience. If that is achieved, you will be saving the cou,.h Jaws and wise men to decide a nd strong to execute. Amen." of time and unnecessary la.bor, and also expense, time and worry With that prayer to St. Thomas More, let me now respectfully to your client. at the same time promoting peace and good will in move before this Honorable Court, on behalf of the Chairman an:i the community. This is specially true in cases involving partition, the Committee of Bar Examiners for 1953, that the candidatt>~ who inheritance, probate of wills, etc., where the parties are close rela. successfully passed the examinations given in August of last year tives, even brothers and sisters. Of course in those cases you cannot Jx. admitted to the Philippine Bar. expect as much remuneration as in prolonged court litig-ation, including 2.ppeals, but, for your inner satisfaction, you may dwell in the consoling thought that' you are not engaged in a business, to make money, but you are practicing a profession, a noble one. There is one other point, somewhat detached from the subject already mentioned, which in passing I would like to bring tc y<;ur attention. Tht? complexities of mod::?rn life have necessitated the creation of administrative, quasi-judiciel agencies to operate in a field lying between the knnwn legi,dative and judicial funr.t'ons on one side and the common executive powers on the other. Commissio11s nn<l boards, like the Securities and Exchange Commission, Publ'.e Service Commi!>sion, "'orkmen's Compensation Co1nmi;;sion, Board of Tax Ar1peals, Patent Office, Court of Industrial Relations, - parenthetically I may state that jurisdiction over appeals from thcsi'.? commiss!ol!E !!nd boards has gr.:utly increased the work of the Supreme Court, - have from time to time been established to t-andle <"ert.ain relationships 1 ·esulting from the t ides of expanding agricultural, commercial and industrial development, which regular judicial and legislative procedures could not adequately and expeditiously meet. Misgivings were at first aired about the pos:;ible courts of law, their cxpansi0n and multiplication liaving been oftentimes debated, 1:1pecifilly in the United Statrs. So far, however, in our country .they h.'.l.ve generally inured to the benefit of the people at large, partly perhaps, because their actuatio:is have> usually b~en subject to judicial review, whic:1 be~ide~ l'Cl"Utinizing the law a?plicnble to the matter, has laid special emphasi!' on the query whether the adjudication had been made under conditions meeting the due proress clause, and the tenets of J a.ir anri impartial investigation. To proceedings before these agencies the Rules of Court are not, of course. apµli::able e:r. prnpio 1•igr.re. Wherefore the time is riµe may be for the bar to take interest in the advis: bility or pos11ibility of devising und recommending some kind of uniform procedure for th1: regulation of the practice before thes1: administrative <.gencir~. as has been don{' in the United Stl!.t.es. In closing, permit me to lay spi:cial stress on the need for every member of the bar and the bench to recognize their respective responsibility, and for them to assum.., without any reservation such n sponsibility, in relation to ollr judicial system. We cannot relax without jcopD.rdizing the administration of justice. To the extent that the lawyer is true to his o:>,th of office ·::nd to the ra11se of his clio mt, and to the extent that every member of the bench conscientiously discharges his judicial functions and fast enough to avoid unnecessary delay, the people's ::onfidence Will remain firm and unshakable in the so-called last bulwark of democracy. the Judieia.ry <Contin.u.ed on page 149) Ma.rch 31, 1954 THE LAWYERS JOtJRNAL 111 MR. BROWNELL'S OPINION ON U.S. BASES MR. RECTO STATES THE PHILIPPINE CASE l Following is the f11ll text of the f<,yal opi'llion of U.S. Attcnney Ganeml Herbert Bro1rnell Jr., da~miny th~ United Stutes has title to nm1 al a11d military bases in f.he Philippines. It was submitted tn the Secretary of State on .411g11st. 28, 1953 MR. BROWNELL JR. Th~ Honorable The Secretary of State My dear Mr. Secretary: This is in response to the request of your legal adviser, dated April 17, 1953, for =m opinion respecting title to United States military bases, including naval i·eservations gnd fueling stations, in the Philippin<'s. The i·equest is apparently joined in by the sccrets\rics of the navy and air force and the director of the budget bureau, who arn "represented with you in an interdepru-tmental committee cono;idering the Manila joint staff committee report <August 1::;, i952> ' for the settlement of United States property r ights and TeJated problems in the Philippines. Accompa11ying tht' rPquest for an opinion is a memorandum of the legal adviser, which the navy a.nd air force cor.sider to be a fair and fu!l statement of the legal issues. together with a considerable number of supporting ~~as~ied documents. ~ p_rincipa\ question is whether the United States ret~ins title=-the proprietary interest as 'listinguished from sovereigntyir. the lands or areas in the Philippines comprising the military and naval bases, reservations, a.nd stations which it held as such immediately prior to Philippine independence, achieved J uly 4, l!M6. <There is, of com·se, no issue as to t he parts of such lands or afeas which have since been conveyed by express, formal grant. of t he United States to the Philippine government.) If the answer is that the United States continues to own the ba.se l:rnds or areas, the further que;;tions are whether the United States is under obligation to transfer them to the Philippine government presently without compensation, or if there is no such obligation, whether tho President is authorized to make such a transfer. I. The )lroblem begins with the Philippine Independence act-also known a:,; the Tydings-McDuffie act--of March 24, 1934. In preparation of Philippine independence, provision w~s made for a commonwealth government as a bridge to complete independence, and for complete independence on the fourth day of J uly following a ten.year period of commonwealth government. The rommonwealth government came into existence on November 15, Hl35, so the contemplated and actual date of independence became J uly 4, 1946. The Philippine I ndependence act, in section 5, transferred to the commonwealth government all the property nnd rights acquired in the Philippine Islands by the United States under the treaties of 1898 and 1900 with Spain, "except such land or other property as has heretofore been designate<{ by the P resident of thri United States for military and other r eservations of the government of the United States," end except such land or property as may have been sold. Previous acts of congress had placed und~r the control of the then governments of the islands all prope1ty acquired by the United States under the treaties with Spain, except such land or property as might be designated by the Pres. idrnt for military or other reservations. Section 12 of the Act of July 1, 1902, (32 Stat. 691, 695) substantially reenacted by section 9 of the Act of August 29, 1916, (39 Stat. 545, 547) and, from time to time by executive orders of the President, ccrtair. Memorandum of S enator Claro M. Recto to the SecretaTy of Forei9n A/fairs in Teply to the Uuited States clai?n of ownership over its 1.aval and m ilitary bases in the Philippines. It wa3 d<tted r.f'1:rr,f. S, 195-4, and incorvoroted point::; men:ianed in an ear:ier memo. an. cfom by Mr. Recto. Dear Secretary Garcia: My attention h:is ~en cnlled t-0 the opinion dated August 28, 19;)3 of Mr. Brvw11ell, t he ir .cumbent altornev general of the United States, on the ques. tion of whethe!" the United States has r etained thP "proprietary interest or title .:1!1 dis.. tinguished from soverdgnty," in the "lands or area.s i!l t he Philippi1!es comprising the military and naval bases, r ese1·vations, and stations" not.withstanding the grant of independence. His c.pinion is t hat the Fnited States rptained, a fter the gr<int of ind!:>pendence, the title or MR. RECTO proprietary inter est to the base lands, that is to say, that the Republic of the Philippine11 is not the owner of the lands where f;he United States military b'ltPs, reservations and fueling stations are presently located. The a rgument supporting l\lr. Brownell's opi.nion m:ly b<· summarized thus: Th!1t under ~ection 5 of the Tydings..McDuffie Law the Ccimmonwealth g.:)llcrnment acquired all the property and rights wf:ich the United States acquired from Sp'lin. except m'litary an!J othf'l' reservations ; that under seetion 2 (a) f12) and section 5. title to said reservations was retained during the Commonwealth reriod; tha.t under section 10(a) of U1e s:-ime law. it was origiMlly mtendcd to t.raMfer to the PhilinpiMs the t;tlc to mi\"tary l'f>SC"vations umm tl>~ proclanrntion of independence ; that under rect:on lO(b) all rrnestioni: r elating to naval re~erv"t;OTIS ar:d fueliYill R tations would be adiusted and settled witl1;n two yea'"s aftf>r t J.ie procl2.maUon of i!ldepPndence, in neir.nt;aticins bPtween the Pres:drmt of the United States and the Philiil''ine vovernment: that undr.r section 10(c), added to the law in 1939, the United St.,tes wnuli retnin title to iti> prom•rties used fnr diplomatic and con~uhr establii:hme.,ts in the Philinnines aftrir the .{!'rant of indenenlff>nce; that J oint Resolution 93 of the U,..itf'rl ~t::tfrfl r ongr('SS datf'c1 J•nw 29. 1944 chan{t"'d the policy of the Unitetl ~t.ri.tr>J:: with i·eqncl't to military reservations by providin;? in e~fect that. i"stead of trAnsferrini? titlP to !'aid r esPrva.tions upon the gra'lt of in<'epcn"'crce, us ori1dnally intended, the title to i;uch r csel'vntions wouM be r Ptained cvf'n Mter thl' grnnt of indenencknce ; that such rhi:inirP. of policy is 2.lso evideJ1r.ed by thf> Philippine Proneiiv Act of lfl46, passed by thf' United States Conzress on July 3, 1946, one d w before the proclamation of imfcpendcn<'e. wh;ch provided that title to all United States properties in the Phf1inpines would rem"in vested in the United States even after independence and such properties included militar y and ()ther reservations: that there has been no Miustment of tlie pronerty rightl! of the U:iited $fates in the Philippines as contemplated in sect:on 2 <b) (]} .1f the Tvdini:rsMcD11ffiC' Law, ns shown by article Vf of the Tre"ty of G~meral Relations; that the proclamation of Philippirie indenendence was· subjed to th<• reservations contained in the Tydings-McDuffie La\v and other laws of the United Sb.tes Congress;' that the Ba~es Ag-ree- · ment concerns the use of the bases and did not settle directly the title to military nnd naval bases; that, therefore, the titl~s to aU 112 THE LAWYERS JOURNAL Mal'ch 81, 1954· MR. BROWNELL'S areas wel'e designated as military or naval reservatio:1s. Exercise of the authority granted to the President to designate land for military and othPr reserve.tions vested title to the designatP-d land h1 the United States until othenvise disposed of by the P1esident C28 Op. A.G. 262, 1910J. Section 10 Ca) of the Philippine Independencp act p!·ovided for the reeognition of Philippine independt:nce and the withdrawal of American sovereignty. On the specified fourth day of July, '~~i~~~~a~;e :i.~csi~~;:e~~e!l1e,.~~it;!h~ta:~s ~~s~:~:~~~~a~~~.,;:~~q!~J jurisdiction, control, or sovereignty then existing and exercised by the United States in e.nd over the territory and people of the P hilippine Islands, including all military and othe~· reservati.1ns of the f?OVernment of the United States in the Philippines Cex..:cpt such naval reservation and fueling stations as nre reserved under Section 5)," and was to recogni7.e the independence of the Philippine Islands as a sepa.1·ate and self-governing nation. Under Sfction 10 Cb), the President was authorized to enter into · n~go t iations with the government of the Philippine Islands not later than two years after his proclamation recognizing independence, for the "adjustment and settlement of all questions relating tc. naval reserve.tions and fueling stations of the United. States m tht Philippine Islands, and pending such adjustment and settlPmt-nt the matter of naval reservations and fueling stations shall remain in its present status." Under section 2 <b> Cl) and C!'il / it was required that the Philippinp Constitution provide, effechvr. upnn independence, that the property rights of the United States and the Philippine Islands shall be promptly adjusted and settled: nnd that by way of further assurance the Philippine government would embody the foregoing provision. and certain others, in ~ t reaty with the United States. The words of section 10 Ca) nn their face appea.r to be a relin. quishrnent to the Philippine Republic of sovereignty over for Philippine territory, including military and other reservations .:i' the United States but excluding Unit~d States naval reservationP r..r.d fueling stations, and not a relinquishment or conveyance· of title or proprietary right, such as was ma.de in the language o'I' section 5 to the con1monwealth government. Except for the military and other reservations, this phraseology of section 10 Ca) wns entirely consistent with section 5. ThPre was no ambiguity since thi:. commonwealth government was vested with title to public prope1'ty to which the indep~ndent. republic would succeed, and it need cd only the sessinn of sovereignty to complete its absolute contrcl. But the military and other reservations designa.ted by the President of the United States had not been conveyed to tl1e commonwealth govel'llment by section 5. Her.ce, without a further t:xplanation, it would seem that the force of section 10 (a), insofar as United States military reservations were cr.mcerned, wa!'I a grant of sovereingty to the Philippine Republic but lea.vin2' title to the fee in the United States. However, it appe,ars that more was intended. The 1934 Tydings-~fcDu!fie Philippine Independence act, which required and had received the ncceptance of the Philippine Legislature, wa.s the reenactment with some few changes of the Hare-Hawes-Cutting Act of J anuary 17, 1933. Like the Tydings-McDuffie Aci: the 1933 act called for acceptance· by the Philippine Legislature but had been rejected by the Philippine Legislature on several grounds,_ one of which was the issue of military reservations. Under the Hare-Hawes-Cutting Act, the section 5 trrant to the commonwealth government of ownership of property except military and other r<>servations of the United States was the same as appeared in the later act. But while the section 10 grant of sovereignly included military nnd other reservations of the Uidted States, it permitted the President to redesignate and thereby retain for the United States any or all of the land .o:eserved under section for the United :3tates within two years after the proclamation of indepc-ndence C47 Stat. 768>. As stated by the managers of the bill for the house of repr-=sentatives: "The effect of the conference agreement is tO reserve to the United States upon final withdr<iwal of the sovereignty of the Ur.ited States from the Philippine Islands, such land or other }Jtopertr which has heretofore been designated for military and MR. RECTO STATES . the bases still remain in the United States, there having bPen no transfer thereof to the Philippines; and thu.t, fini.lly, the President of the .United Stutes has complete discre~io:i to decide whether the titles to such buses would be transferred to the Philippim s and whether the transfer should b:? with or without com}Jensation. I have carefully read Mr. Brownell's 21-page opinion, and I hnve found no justificat ion for changing my st '.Mld th:.it the so-called "base lands 0r areas" Cas dist'nguished from t r.e imprC'vement~ thereon in the form of buildings ard' oti'er types of real property) are! now owned by the Republic of the Philippines and not by the United States. My stand is supported by the 1 1rovisions of the Tydingo-McD:.if(ic Act, nnd the stipulations of Treaty of Gel"er:.!.l Relati'lns entered into between the Philippin2s a-d the Unit~d S~at-s -,n July 4, 1946 and the bases n,l!'rl!f'ment te•ween the two countries execute'.! on March 14, 1947. The implic··tion~ of tlie two t •·ea'ies l'.ln the question of title to the base lan:ls werP. not fully consid-red in Mr. Brownell's opinion. The Tydyings-MeDuffie Law nf March 24, 1934 nrovides tha.t "the Philippine Tslands recognizes the right of the Uni'ted S t·t.cs ti' w.aititain military and nther reservations"; that "all the property and riirhts whicll mav have been acquired in the P hilipnine Islands by the United Staws . . , excent such lal'd or other pronerty as h2S heretofore been rlPsignated by the President of the t :nited States for militn.ry and other reservations of thl: l!overnment of the United States" are .irrnnted lo the Commonwr:e.lth ~overnment: that 1mon tlrn procln.mntion of Philhmine 111. depctidencP. on .ful11 4, 19Lfi "the Presirlent of the United Stntes shall by proclrimation w;thdraw rind surrender all ri.Qht of 710«1session. StlpeY1Jfaion. juri.c:dirtio11. control. or sovere;gr.ty tflN: t>::r.i. <1ting and e::ccreised bv tl•e UnitPd Stntes in o.,d ovP-r the tl'rrito'Nf and pl'opk of the Philinpine Tnlamls, includin(J all m.iHfl'trJ/ and other re.crervations of the Government of the Unitt'd Stntes in the PhilippinPs (except sm:h nnva! rrscrvation.<1 and fu0 lin"!' c:tat ions as aro:i n>so:irved under secti.:in 5\": a.nd that "the P resident of the UnitPd States is her<>bv authorized and emnowered tn Pnter , into negotiations with the Government of the Philinpine Islands, not later than two yPnrs after his nroclamation rPco<miz;mr the independence of the Philippine Islands, for the adiustment and S(.>ttlement of all qu<>stions relating' to nava.1 rP!'ervations ar.d f uelinJr. stations of the United States in the Philinpine Islands. and p<>ndinl! such adiustment and settlement of the ml).tter nf nwnl reservations and feuling stations sh:ill remain in its present status." R"Cause only na.val r('servnJlnns and fuclinl?' stiitinns wPrP. 1irovided for in the Tydinf!'s-McDuffie L:iw, the ri)!ht of the l;nited StatPs to ne1YOtiate for adriitinmil hnses was implemrnterl in the J nint Resolution of the l. 1 nitPd States Con.,.,.ess of J nne 2~. ] 944. In concnrrer>('e with this act inn of the U S. Cong1·,.as, the Co"P"l'e~s of the Philinnines approvrd Joint Resoln+inn No. 4 on Julv 28. 1945 authorizinl! the Pre!'irl,..nt nf the Phi!ipr•ines tn ne~tiate. with the PrPsidPnt of the United StntPs thP Pstab~ li~hment of the 11f''lr . .,sa:d bas"S. ro n~ to ins"re th" territ•wfa.l intPJ?rity of thP. PhilinninPS, the mubial protection of the PhiTinpinPs :ind the United States, and the mr:intenance of peace in the Pacific. On July 4. 1946. President Truman proclaimed the inde~en dence of the Philinpin.,s. Purs1•ant to the nrovision of SPctim1 l(l(a) of the Tydings-McDuffie Law. he withdT"w &nd surre'ld"red "all ri.~hts of possession, supervision. ,i11risdiction, control O" sovereignty of the Un;ted Sta~es of America in and over tlie territory and people of the Philinnin~s except ce::-~ain reserv~ tions therein and thereafter authorized to be made.'1 Under article I of the Treaty of Gener::il Re'ationR the United States withdrew and snrrendered to the Republic of the Philippines "all right of poss<>ssion, supervision, jurisrliction. control of soverflignty e::dstin~ and exercised by the United Sf3t('s . in nnd over tb territo1·y and people" of the Philippinf's, "excep~ the'! use of such bases. necesse.r~· appurtrmances to SL<ch bnsPs, l'ln-1 the rights incident thflreto. a:. the linitPd States of America by ngreement with the Republic of tht> Philippine's, :nay deem necess:ny to i·etain for the mutual protection" of the two Ma.1:ch 81, 1954. THE LAWYERS J OUKNAL 113 MR. BROWNELL'S .. ' ether purposes as may be red('signatcd by the P1·C'sident of the Uuited States within two years after the date of independence." This retention of militar)' l'eservatious was unacceptable to the Philippine L<?gislature which, in declining to accept the act, included among its reasons a sta~enwnt that "the military, n:ival, anci other reservations provided fo:- in the said act are inconsistent with true independence, violate national dignity, and arc subject to misunderstanding." . There were other reasons for rejection. But it appeared that the best comprrimise that the P resident was able to offer at the time was 2. request to congress to remove the more objectionable features from the military b2.Se provisions and to correct at s:>me later date, after hearings, whatever imperfections or inequalities existed in the sections of the Hare-Hawes-Cutting Act. Accordingly. on March 2, 1934, the President proposed the following changes in the Hare-Hawes-Cutting Act: "As to the military bases, I r<?commend that this provision be ('liminaled from the law and · that these bases be relinqui~hej sinmltaneously with the accomplishment of final Philippine ind('pendence. "As to the nav<1) bases, I recommend that :he law be so amended as to provide for the ultimate settlement of thio> matter on terms satisfactory to our own government and thnt of the Philippine Isfa.nds." In the sui>port of these recommendations the Tydings-McDuffie act was enacted. It removed from the first paragraph of seCtion Ii) of the old act the option of the United States to redesignate and r etain any N" all of the land or property reserved for military or other reservations, and retained for the United Stetes only "such naval reservations and fuelin{S stations as are reserved under section 5." Also there w:is transferred from section 10 to section 2 the provisions to be included in the Philippine Constitution, including the pi·ovision to be effective upon independence that property rights of the United States in the Philippine lsfands shall be promptly adjusted snd settled. In their place t~re was inserted a second and final paragraph: ''(b) The Pres\dent of United States is hereby authorized and emnowered to enter into nel!otiations with the government of the Philippine Islands. not later than two years Mter his proclama!ion reco{!1lizing t.he independence of t.he Philippine Islands, for the adjustment and SC'ttlement of all que~tions relating to naval TC!;erva. ti,,.ns and fuelinl! stations of t11e United States in the Philippine Isfands. and pendinir sucl1 arliustment nnd s"ttfoment the mettl'r of navAl rPl':crvations and fueling stations shall remain in its present status." In describinir the effect of these chan-"'es, the house committee O'l insular affairs and the senate committee on territories and insular affairs ga,•e identical explanations as follow~: ''5. The United States agrees to reli"lqish all reservations now dtesiJ?Tiated for the use of the United States Army after thP. institution of the indep'endent g-overnment, but reserves the rit?"ht, at its di!>cretio!l. to retain and maintain naval bases and fueling' station!; in th'1 Philipnine Islands. "6. The feasibility of further r etaining and maintaining naval b:::ses and fueling stations in the Philippine Islands after t.he inde:pendent government is constituted, will be the subject of confnences betwPen the two goveTnments." In addition, both reports included th(' following statement regarding t!1e purpose and intent "f the new measure: "The pending hill (M.H. 85'73) is a propornl to re.,nact !.he Hare-Hawes-Cutting bill, with the exi:eption that the Un:ted States agrees, after the establishment of the independent government, to withdraw its sovereignty and relinquish ail lands now constitutin_g- reservations for the United States Army in the islands and all other reservations, excepting th'Jse which have heretofore been designated for the use of the United States Navy and for fueling stations," <Underscoring supplied.> It would thus appear that it was intended, after the common. wealth period, that the United States would give up its property and rights in military reservations including the right to maintain them as bases; but that the United States would retain its MR. RECTO STATES . tries. I have underscC1red the word "use" because it discloses the nattJt(' of the intert!St rC'tain('d b)" the United States in the bases and it implies that the title to the bases is in the Republic of the Philippines a.s the sovereign gmntor of their use to the United States. It is inferabk from article I of the treaty that there had already bi?cn a gr:rnt 01· surr,ender to the Philippines of the title held hy the l:nited States to all the. base lands at the time of the r•roclamation of Philippine independence. The subsequent agreement' referred to in the said tr<!aty of General Re!atiom· is the Bases Agreement concluded between the two countries on March 14, 1947. The treaty t1s:es the word "bases" without qualification, thus indicating that it refers indiscriminately to militar:,., na,·al and other kinds of bases. The Bases Agreement, as an implementation nf the Treat!! of Gener:il Relations and as the culmin::i.tion of negotiations for bases in the Philippines after the withdrowal of American wvereignty, unreservedly confirms the view that the Philippines owns the lands or areas where the bases are situated. The subject <if the Ba~cs AgrPemPnt accord:ng to its preamble i~ the "grant to the United States of -America by the Republic of the Philipvi·ies, in the e:::ercise of its title and sovereiaaty, of the use, free of rent, in fwrthe·mnce of the mutual intwr1.,st of both count..-jes, of certain land.~ of the public domain,'' It may be noted that th2 preamble Tecognizes that the '"titlf"' to the bases is held by the Philippines and that the United States ae<1uircs only the "use" of certain lanrls of "!.he public domain. Tl1e juxtaposition of the wot·ds "title" and "sO\·ereignty" signifies that these two concepts :l.re inserarably linked. Article I, paragraphs 1 and 2, of the Bases Agreement provides that the "Government of the Philippines grants to the Government of the United States of America the right to Tetain the 1t8tl of the bases in the Philippines listed in Annex A atta:::hed hereto"; and to use the buses listed in Annex B. Under Article XXI the United States retains the 1·ight to occupy tempora.ry quarters and , installations existing outside the bases. Tl1e duration of the use and occupancy is 99 yeaTs. Article XVIII specifically assumes that the bases will be i·elinquished and turned over by the United States to the Philippines upon the tP.rmination of t.he agreement, or at any e?.rlier <late clll)sen by the United Stutes. Other provi-.ions of the Ila.c;es AgreC"ment indicate th11t the li11ited States has merely the use, possession, and 1Jccup=incy, bnt not the ownership of thl' base hinds. Indeed, the Bases Agreement contains sevP.ral stipulations, whi.:::h ar(' premised on the assumption that unon the proclanrntion of ir1depende11ce there had been a transfe>r to the Repuhlic of the Philippines nf all the t itle and pr.>p;·ietary interest previon,;Jy held by the United States in th'! b::;.-'>t' :nr:as. The H;.mc assuff.ption is made by the Philipnine secretary of foreign affairs in his notes to the American Am· bassa.dor, relative to the transfer to the Philippine government rif Fort Mills, M::trivclcs qu=tr:rntine resel'Vation, Nichols Field and the Zambonnga Pettit b3rracks. The secretm·y of foreign affairs in his- notes clarified that the tra.nsfel's were a "fonnalizatfon" o( the withdrawal of United States sovereignty over s.iid bases as effectc>d in the T!'caty of Gcncrnl Relations. The stand of th~ secretary of foreign affait·s is consistent with his note of March 14, 1947 (upon the signing of the bases agreement) wherein hf' did not concede the <?xistence of any right!' or titles of the United States to the real property in the bases. There is one feature of the Bases Agreement ,,·hich deserves f'!)ecial mention, Although the title of the agreement mentions "military bases" only, in reality it also includes such naval reservations as the Leyte-Samar Nav!tl Base, Subic Bay, Northwest Shore Nava.I Huse, Olongapo Naval Reservation, Baguio Naval Reservation, Tawi-Tawi Naval Anchorage and Naval Base, Cafi:'.l.cao-Sangley Point Naval Base and certa.in naval air bases. The Bases Agreement is therefore consistent with the Treaty of Gen-. era! Relations whose article I, as already 'noted, speaks of the use of "bases," without qualification. Furthcrmcrc, the agreement in a way represents and consti114 THE LA WYERS JOURNAL M.u .ch 31, 1954 MR. BROWNELL'S . property rights in naval resel'vations and fueling sta.tions and the right to maintain them, subject to further discussions and thl' changes effected, if any, by a final adjustment and settlement of all que!'=tions pC'rtaining to mwal bases. The discussionsi. were k be begun within two years a.fter the proclamation llf inde-. pendence, but there would be no change in status of the naval re-. servations and stations until and unless the final settlement produced a change The Philippine Independence Act Dn May 1, 1934, and following the adllption of the Constitution and its approval in a plebicite in 1935, the Commonwca.ltl1 regime was inaugurated. The contemporary opinion of authoritative sources supported the view that section 10 intended a transfer to the new republi~ of property rights in United States military reservations, as well as the grant <.•f £0\'ereignty, when independenr:e wns f~J be achieved. For example, the joint preparatory committee on Philirpine affairs, created April 14, 1937, pursuant to an arrangement lfohveen the President of the United States and the Presiden~ of the Philippines, included in its report a statement on United State's go"ernment property in thf' Philippines. After referring to sections 5, 10, and 2 of the Philippine Independence act, the committE'e made t.he following statement: · "After the independent g<lvernment is established on July 4, 1946, the government of the United Stat.es will require, for its official est&blishments in the Philippines, properties such as a government. normally maintains in the territory llf a foreign country. F'or instance, the governm'!nt of the United States• now contemplates the erectilln of certain buildings on a portion of the Camp John Hay military 1·eservation, near the city of Baguio, for the use of its official representat.ives in the Philippines during and following the Commonweelth period. Unless i;ome arrangement is made before the indepemlent government comes into existence, this property, as a part of a military 1·eservation, must be surrendered to the independent government. In view of the extensive propcrtic!! which will be turned O\'er to the independent gcYernment under existing law, the committee als:> recommends, as a matter of equitf, that, prior to the est2blishment of the !'.l"O"ernment, some arrangement be made under which title to such properties e.s the United States may require for the aforementioned purpose would either be · retroceded to the United States withc;ut compensation, or be acquired by the United States through an exchange of properties.'' This report became the basis for the 1939 amendments of the Philippine Independence Act. Significantly, in regard to the property amendments effected by the 1939 act, it was section 10 of the basic act which was amended. <Act of August 7, 1939, 53 Stat. 1226, 1230-1231.) A new subsection (c) we.s added to section 10, which authorized the President, among other things, to designate r,roperties of the United States in the Philippines suitable for diplomatic and consular establishments. Jt was provided that the property so designated "shall continue to be vested in fee-simple in the United States notwithstanding the provisions contained in subsection Ca> of this section." Likewise, title to the lands and buildings cDnstituting the officia.1 residences of the United States High Commissioner was to continue to be vested in the United States after July 4, 1946, notwithstanding the provisions contained in section 10Ca>. The senate and house reports indicated that it was necessary to make these prC'Visions, else all })roperties held or owned by the United States in the Philippines would be transferred to the independent go''ernment of t.he Philippine!'=. Thus, prior to the war with Ja.pan, contempor:.1.ry interpretation and expectation was that upon achievement llf Philippine independence the United States would relinquish Dperation and ownership of military and lither reservations in t.he Philippines, retaining only 1) operat.ion and ownership of naval reservations and fueling stations, subject to subsequent negotiations with the Philippine Republic, and 2) ownership of consular end diplllmatic 1iroperties, including the residences of the former high comm!ssioner. It was also contemplated, pursuant to section 2Cb) of the Philippine Independence act and article 16 of the Philippine ConMR. RECTO STATES . tutes the very "adjustment and settlement" of questions regardiug naval reservations, which, under Section lO<b> of the TydingsMcDuffie Law, the President of the United States was supposed to negotiate within two years from July 4, 1946. Mr. Brownell's opinion erroneously presupposes that there has been no such adjustment yet. It appears to me that to resolve the question regarding the title to the base lands there is no need to consult other documrnts, laws or agreements, nor to consider other antPcedent and cQllatnal circumstances, which would only tend to mis!ead or obscure tht> issue. The two treaties I have mentioned, viz., the Treaty of General Relatillns and the Basel'! Agreement, are covenants which are in full force and effect. and have not been modified or altered. They are law-making treaties conclusive on the high contractinr, 1iarties and are the sole repository and the best evidence of the intention of the two countries with reference to the status of the bases. Their language as to the nature of the United States' interest in the base lands is clear a.nd unmistakable. In a recent decision the Philippine suprf'me court categorically ruled that the Republic of the Philippines retains its sovereignty or ownership llf the bases held by the United States. Said the supreme court: "By the agreement, the Philippine government mP.rely consent.s that the United States exercises jurisdiction in certain cases. This ccmsent was given purely as a matter of comity courtesy, or ~x pediency. The Philippine government has nDt abdicated its sov.e:-eignty over the bases as part of the Philippine terntory or divested itself completely of jurisdiction over offenses committed therein." <People v. Acierto, January 30, 1953.) The court also noted in the Acierto case the significance of the provision of the Bases Agreement in Article XJII, paragraph ~. that in ce.se the United States renounces the jurisdict:on reserved to it in p:i.ragraphs 1 and 6 of said article, the American officer holding the Dffender in custody should notify the corresponding prnsecnting officer of that fact. According to the court, sairl provision "is an emphatic recognition and reaffirmation of Philippine sovereignty over the bMes." I notice that Mr. Brownell's opinion fails to mention the proviso in article I of the Treaty llf General Relations that the United Statel:l would be allllwed only the ''use" of the basP~. On the other hand, he characterizes as a "difficult-to-explain ambiguity11 the statement in the preamble of the Bases Agreement that the. Republic of the PhilippinP.!', "in the t>xercise of its titlt> anJ sovereignty," was granting to the Uniter! St::i.tes merely the "use" Di the bases. While he admits that "the purpose of the· agreement was to cover the use of the properties (meaning the bases} for military pur poses," his opinirm misses the significance of the term "use" as employed in the agreement and bypasses those provisiDns which impiy that the title to the base lands remains in the Philippines. Contrary to the Attorney General's insinuation, the title to the base lm1ds is assume:.J by the two treaties to be held by the Republic of the Philippines and was not left to future .detennination. The term "use" in its ordinary and legal acceptation (whe.. ther in the commlln law or. civil law) is not syuonymous \Vith title or dominion. It connotes a right included in, and therefore inferior to, title or ownership. I have already stated in a previous Cllmmunice.tion that the l'ight of the United States in the base lands is only a "jus utendi" and that the transaction covel'ed by the Bases Agreement is a "lease." I said it is a lease because the 99-year term of the use: reminded me of the 99-year lease of Atlantic bases obtained rluring the last war by the United States from Great Britain in tensideration for some old destroyers. From the standp'Jint of our municipal law, however, the right of the United States to US'- the bases free of rent resembles the contract of commodatum or the servitude of use. The comparison might help in understanding the view that Philippine ownership of the bases is not incompatible with the United States right to maintain and operate them. - In the exchanges llf notes between the American Ambassador to the Philippines and the Philippine secretary of foreign affairs, Ma.i:ch 31, 1954 'l'HE LA WYERS JOURNAL 115 . MR . BROWNELL'S . . . stitution, that the property r ights of the United States in the Philippine Islands would be promptly adjusted and sC!ttled following the recognition of independence of the Philippine' Islands; and by way of further asi::urance, the government of the Phiiippincs would embody this provision in a t reaty with the United Stat('~. The advent of war with J apan brought a complete change in the mutual relationship between t he United States and the Philippines. The occupation of the Islands by J a.pan made it necessary for United States forces to drive out tl1c invaders. It was obvious to the people and governments of both the United States and the Philippines that, even after Philippine ind'lpcnclence was c.chieved, there would be need for more adequate military installations in the Philippines than wa.s contemplated by thll Inder,endcnce Act for the protection of the Island. Discussions regarding future American bases in the Philippines arose in !943 and culminated in the adoption of senate joint resolution !)3 of the 78th congress. which becamr P. L. 380, approved J une 2!), 194<1 t58 Stat. 625. Section 2 provided.> "After negotiation with the Pl'esident of the Commonwealth C"f the Philippines, or the President of the F ilipino Republic, the President of the United Str..tes is hereby authoi-ized by such mea.ns as he finds appropriate to withh,,lci or to acquire and: to re>tain such bases, necessal'y appt.1rtenances to such bases, :ind the righs incident thereto, in addition to any provided for by the act of March 24, 1934, as he may deem necessary for the mutual .protection of the Philippine lshmc!s and of t hll United States.'' The President also was authoriwd in flection 3 to advance the date for granting independence prior to July 4, 194G, but this was r.ever done. As noted by the senate and house committees which recommended the adoption of S. J . Res. 93: "This joint resolution deals with the subjed of Filipino independence and the future security of the United St.ates a.nd the coming Philippine Republic. The whole subjed of the Philippine matter, both present and future has been considered by Presid~nt Roosevelt; President Manuel Quezon, of the Philippine Commonwealth, now liVing in "'ashingfon ; various departmrnts of c.ur government !nterested in the Philippines; and by members and committees of congres. • • • "First, the President of the United States is authorized, after r.egotiation with the Pr:?sident of the Commonwealth of the Philippines or the President of the F ilipino Republic, to withholrl or to acquire and retain such bases, necessary appurtenances to such b.:ises, and the ri~hts incident thereto, in addition to any provided by the Tydin~s-McDuffie law, as he may deem necessary for the full and mutual protction of the Philippine Islands and the United States." Th!! concept of the T:vdin~s-M:cDuffie Act that the United States would withdraw almost '!ntirely from the P."ivinf!' of milita.rv protection to the P hilippines was theri:!by e1·ase'l. and by mutnal undP!'standin~. On their part. the Philippine IParlrrflhip and le.eislature accented the snir it and the lettPr ".If J oint Resolution 93. Culminii:tinl?' nel!'otiAtions between P resident Truman and Philinnim~ President Osmeiia. both signed an agreement on Mav 14. lft'4S settinc fort11 a oreliminary statem!'nt of .(!'enna.1 principles pertaininl!' to the United State;i: milibry and nav~l b!'ls~ svi::tcm in the Philippines to be used as a basis fol' detailed discussions and staff studies. Amon~ the provisions of this preliminary 'Jbtement were the following: "6. Pendinl!' de\'elopment of the deb?.iled plan, the U.S. will retain all sites which were held by U.S. arnw as military r ec;er - vations on 7 December 1941 and by the U .S. navy excPpt at Cavite, and will be accorded rights to sites in the localities shown on the attached appendix, "7. The U.S. will have the right to retain, or to exchan~e for sites listed in pe.l'agraph 6 above, those sites wherein are lo. c:ated bases. mstnllati(lns, or facilities which have been or may be developed in the course of the present war, to acquire add'tional sites and to acquire such sites in the future as m~y be required by changes in the means and methods of warfare, including the de\·cbpment of new weapons. The U.S. will have th(' right to MR. RECTO STATES . concerning the transfer of Fort Mills C Corregidorl c.nd islands in the vicinity thereof, Pettit barracks in Zamboanga, the Mariveles Quarantine station, a pol'tion of Nichols F ield, and the U.S. armed forces cemetery No. 2 in San Francisco del Monte, the American Ambassador generally dccla.res that the " the government of the United States of America transfers to the Republic of the Phil.ippines all right, or title to .01· interest in" the aforesiad properties. The implication is that prior to said transfer, the " title to," ol." ownership of said bases or reservations belonged to the GovernmE:nt of the United States. However, it will be noted that the above insta.llations are not included in Annexes A and B of the Basei:: Agreement, as among the military bases whose use is r eserved or granted lo the United States. Hence, as correctly qualified by the Philippine Secretary of Foreign Affairs in his replies to the aforesaid notes of the ,2\merican Ambassador. such tl'a.nsfers of "the right, tille to or interest" of the United States govemment in the bases and reservations known as Fort Mills and island5' surrounding it, Pettit bar1 :>..cks in Zamboanga, the Mariveles quarr,ntine station, etc., were mel'ely "a formalization of the transfer and surrender of posnession, supe1·visfon, control or sovereignty O\•er these areas already made by the United States in favor of the Philippines in the Treaty of Genera.I Relations" and in the Proclamation of Independence. The component e!P.ments of ownership are the jJ!S fruendi, j11s utc.ndi, jus disponendi, jus vindicandi, and jus acutenrli. It is evident from the terms of the Bases Agreement that the United Stateo;i ac('[uit'ed only the ins utendi, which right, in law and jurispr udence anywh('re is separable from owne!'ship. On the other he.nd, the Act of August 7, 1939, amending section 10 of the Tydings-McDuffie Law, provides that the properties which may be acquired by the United States under this act, as contradisting uishcd from military bases and other resel'\'ations, shall belon~ fo a/1sohtle ownership (''shall be vested in fee simple" ) to the United Stat<'s. If it had ever been intended t(l vest in the United State! the ownership of rr:ilitary b:?.ses and other reservations in the Philippines, that intention could have been clearly and unequi,•ocally ex. presed by the Un!ted States Congress in the same Tydings-McDuf. fie Law; in the J oint Resoluti;in of the U.S. Congr~ss of .Jun,~ 29, 1914, authorizing the President of the United States to acqmre bases for the mutual protection of the United States and of the Philippims ; in the Treaty of Genel'al P.Platkins between th<' United S.t~tcs and the Philippines s!~ni::d on J uly 4. 1946, and in t hE> B3ses Agl'eement itself, in the :-;::ime nmrner ai:: its intention with respect to the properties contempl::ited in the Act of Congress of August 'i, 1939. Since the Treaty of General Relation.!: and the Bases AgrE=ement merely speak of the grant of the use of the bases b the United States-, said grant can by no means be construed as a relinquishment of ownership. fn short, the bases were in effect lea::1ed to the l!nited States, for 99 years and only their pos:;ession was t ransferred thereby, inasmuch as there is no transfer of ownership in lease. As I hav(' said, both t he· Treaty of General Relations and the Rases Agreement are adequate to the resolution of the question of titl<> to the base lands. Nevertheless, I would like to set forth hereunder some additional observations on the points discussed in Mr. Brownell's opinion. 1. It is argued that a distinction she>uld be made between "proprietary interest" and "sovereigntl·" in the baSE'fl, the premise being that while the Philippines has sovereignty over the ba~e lands, the United StatP.s h~\s the title. The distinctir,u has no b1sis becausP, as has hccn said, the Acquisition of terrikry Ly .a state "can mean nothing else than the acquisition of sovereignty.'' COp. ,,enheim'!> Int. Law, Lauterpacht, Vol. J, Gth .ed., p, 496; I. Haehworth's Digest vf Int. Law, p. 3!15). To concede thr:.t the UniWd States retr..ined title to the base lands after the proclamation of indepcndt>ncc, is to C (lncede her 1ight to exercise sovereignty over 1.he same to the exclusion of the Philippine gov('rnmcnt. The i·esult would b2 a species of obnoxious extrnterritoriality, imrJairing the status of the Rf'public of the Philippines ~s a sovereigr: 116 THE LAWYERS J OURNAL March 31, 1954 MR. BROWNELL'S . acquii·e sites and install, maintain and operate thereon, the required communication and navigation facilities and radar installations." In addition, the Philippine legislature acted on the matte1· when it passed Joint Resolution 4, approved July 28, 1945. Noting that the United States government had enacted joint resolution 93, and tliat such a.ction had been "concurred in by the government of the Commomvealth of the Philippi.11es then establish in Washington, it resol\'ed "that tho congress of the Philippine'l adhere to the policy and intent" of joint resolution 93. Further: "That in order to speedily effectuate the policy declared by the congress of the United States and approved by the government of the Commonwealth of the Philippines, the President of the Philippines is authol'ized to negotiate with the President of the Unit<'d Sta.tes the establishment of the rtforesaid bases, so as to insure the tenitori.d integrity of the Philippines, the mutual protection Clf the Philippines and the United States, and the maintenancP. of 1 1eace in the Pacific." Thus it appears that the intentions of the Philippine Independe11ce act respecting military reservations were mutually altered in favor of a policy looking toward the expansion of military, naval, and air bases in the Philippine-a policy wholly inconsistent with the idea of an automatic transfe1· of the property constituting the bases upon the achieving of independence. Not only was the President of the United States authorized to withhdd 8nd i·eta.in or acquire and retain bases in addition to any provided by the 'l'ydiTigs-McDuffie law, but he was authorized to do these thinr:s in n(:gotiation with the President of the future Republic of the Philippines as well as the then President of the Commonwealth of the Phlippines; making it quite clear that ownership and operation were to continue well after independence wss achieved. And this broad pa.ttern for the continuance and expansion of bases was accepted, though no acceptance was technically required at the time, by the President and legislature of the Philippines. In my view, the change wrought by the joint resolution of J une 29, 1944, is decisive of the intention to retain title, and of the fact that title was retained, in the United States, to the prnperty owned and used or reserved by the United States prior to Philippine independence as military and naval reservations, bases, or stations. However, if further evidence of this purpose and fact is needed, it is sui)plied by the second section of the Philippine P1·operty Act of 1946 <Act of July 3 ,1946, 60 Stat. 418). In addition to the post-war military defense problems there were a host ol post-war rehabilitation and restoration problems in which United States help was essential even after independence of the Philippines was achieved. Congress had enacted a Ph!lippine Rehabilitation act providing for the conduct of many federal services in the islands. It was necessary for these agencies to occupy i·eal property and use personal property owned by the tTnited States. Othe1·,Vise, the agencies' appropriations would be divel'ted to the purchase or 1·entel of thn needed space and eql!ipment. Our government had brought into the Philippine large stores of SUJJJ>lies and equipment for purposes of the war and rehabilitation. In addition, the alien property custodian held large amounts of property seized from enemy a.liens. In vi~w of all the ch:rnges in circumst:i:.nces and in the ne.ture and extent of United States property holdings, it was deemed "manifestly improper to pennit title to pass automatically to the Philippine Republic on July 4 of this yer.r C1946L" As a consequence, there was enacted the Philippine Propt>rty Act of 1946, dealing "only with the proprietary interests of the t:'nited smtes in real or personal property within the boundaries of the Philippines." S<.!ction 2 of t he al'.t provided: "There shall remain vested in the government of the Unib>d States or its agencies or instrumentalities all the right, title, IUld interest of the said government or its agencies or instrumentalities to all rnal and pe1·sonal property within the Philippine Islands aR may now be vested in, or la.ter be acquircJ by the gov. ernment of the United States or any of its agencies or instrumt!nt. alities." MR. RECTO STATES . state and contrary to the letter and spirit of the independ<'nce Jnw and the professed altrniRtic policy of the U11ited States to the Islands. 2. l\:lr. Brownell admits tha.t under the Tydings.l\'IcDuffie Lmv, the original intention was to transfer the title to thf' military bases upon the proclamation of Philippine independ~;-nce. But it is contended that J oint Resolution 93, ad1Jpted by t he United States Congress on June 29,' 1944, wrought a change in the policy of the United States with respect to the base~. Said resolution authorized the President cf the United States to negotia.te with the President of the Philippines for additional baS('S. The Philippine congress in its Jomt Resolution No. 4, dated J u,y 28. 1945, assented to the Joint Re!.'lolution 93. The attorney general claims that sairl Joint Resolution 93 is 11decisive of the int~ntion to retain title, and of the fact that title was retained/' in the bases after the grant of independence. The contention is not well-taken. Section 5 of the Tydings. McDuffie Law, in pl'Oviding for t.J1e grant or tra.nsfcr to the Commonwealth government of all the property and rights acquired by the United States from Spain, may be construed as a complete conveyance of whatever title .t>r proprir.tary interest waJ> held by the United States in Philippine territory. The proviso, exceptin~ military bat:tes and na.val reservations from the grant, may be cr:nstrued as allowintr the retention by the United States of tl1e ~tse, Pflssession or occupOlnry of said military und other reservations, but nflt of the ownership or title. This interpretation is in hal'mony with section lO(a) which speaks of the relinquishment of "possession" Cnot titll!) of military baRes upon the proclamation of Philiripine independence, the implication being that during the commonwealth period, the United States retained only the poJs.~essio1i or occupancy of the bat:tes and that their ownHship had become vested in the Commonwealth government, as contemplated in Section 5. There is one practical consideration justifying the abcve inlerpretation. It is that, in order to maintain and or,era.te military bases and 'lther ?"esen·ations durilig the commonwealth period and after inde))<'ndenre, it was not, and it would not be necf!ssary for the United States to l'etain the title or 0wnersliip of the base landfl'. Possession or contt·ol thereof is sufficient for the purpose. so if; fa impronPr to assume th&t more than this 1·iv,:ht was conveyed. The principle of in dubfo miti11s is applicable to the problem at hand, if there is at all a problem of construction involved in this case. This rule of interpretation holds that if the meaning of a sthmlation is in doubt, that meaning is to be preferred which would hE' less onerous for the party assuming an oblicra.tion, or which interferes less with the territorial and personal supremacy of a party. There is nothin.Q' in Joint Resolution 93 which dirPctly suupo1ts the theory that the United States retained ownership of the lands. On the contrary. the re<:olution should likewise be ct)nstr11ed as entitlin(!' the United States to retain merely t!1e use mid posse.<Jsi011 of additional base lantls. in y;ew of the fact that the Ras1>s Al!rt'ement itself which definPS nnd limits the uature of Unitt>d States ir.tcre~t in the bast: lands, mi:.kes specific reference to Joint Resolution 93. · In a comparatively recent book on American foreign flOlicy, t he authors, in citinl!' J oint Resolntion 93. describes it a3' rP.serving to tl1e United States "the 1-inht to 'tue' Rite& for militnry, naval, and air boses in tlie Philip11ine Tsl11nds 11/ter July ~. 19J6, when they would have gained their freedom and would be able to negotiate as an independent nation." Had it been the intention of the United States to retain the ownership of the base lands after the recognition of independence, that intention could and should ha.ve been cleady stated in SPCtion 10 of the Tydings.McDuffie Law, in Joint Resolution 93, and in the two t reaties ::ilready -::ited. The· United States would not have left the matter to inference or interpretation. In its Act of August 7, 1939, amending section 10 of the Tydings-McDuffie Law, there is a specific and categoriCal rrovision that the properties in the Philippines acquired by the United Sta.tes for diplomatic or cons1ila'r establishments "shall continue to be ve:.:ted 1\1:?.l'ch 31, 1954 'rHB LAWYERS JOURNAL 117 l\IR. BROWNELL'S . Sections 3 and 5 dealt. with disposition of properties acquired hy the alien property custodian, and provided for immedii.ttc trnn~ fer of agricultuml lands and immediate 9r ultimate ti·ansfor or the others of such properties to t.he Philippine government. Section 4 authorized the Pre.,;ident in his discretion, and on such terms as he deemed appropriate, to transfer title to the Philippine Republic of other properties of the Unitecl States in the Philippines not within the scope of Sc:ction 3. Section G pTovided: "Nothing contained in this act shall be constru<:d as amending the provisions of the Act of March 24, 1934 (48 Stat. 45G>, as &mended, respecti1ig naval reservutions and fueling stations, and diplomatic or consular property, :md the property of the high commissioner to the Philippine Islands, nor as amenrling the provisions of the jcint l"esolution of ,Tune 29, 1944 (Public Law 350, Se,·cnty-eight CvngressJ, 1·especting bases for the mutual protection of the Philippine Islandfl and the United States." The onlr explanation of this provision AJlpears, idcnticnlly, in the senate and house committee n:ports, linking section 6 to secN tion 4 in this fashion: "6. The P resident of the United States is authorized in his discretion to dispose of all other properties held by the U11ited States government in the Philippines, other than ditl!omatic and consular establishmenb and others covered by the independence act, to the Philippine government." Apropos of the retention of property titles in the United States, as provided in section 2 of the act, the house report said: "Some have interpreted the l nrlependcnce cct of 1034 as m·ovidN ing for the relinquishment of all prnperty t itles now \'estecl in thr United States government to the government of the Philippines r.fter July 4, l!J46, the date set by law for achievement 'lf Philippine independence. In the minds of othl::l·s, this inte1·pretation is questioned. Yet it is the feeling of this committee that this legifllation is vitally ·necessary to clarify any doubts as to the present meaning of existing law." · And in regard !o the effect of section 2, both committee repflrts said: "'l . Agencies of the United States government are granted the right to retain title to pro}lerties presently owned and to ar.quire new properties for dischargE" of Federal functi.:ms in the Philippines after the date llf independence except in the instances of enemy propertif's which arc otherwise provided for." In one of this explanation of sections 2, 4, and {i of the Philippine Propl'rty Act docs t here appear to be any limitation on the sweep of the plain words of secticn 2 under which there remains vested in the government of the United States, or its aS!encies or instrumentalities, ail right, title, and interest to real and personal property now (July ~' Hl46l vested in the government or its agencies or instrumentalilics. Plainly, this reservation of title includes real and personal propei·ty of the United St.ates used for military and naval purposes. Even applying section 6 to section 2, as we lieterally must in testing its meaning, section 6 efft>cts no change in the scope and breadth of sedion 2. For, the provisions of the Independence act as amended, and the prnvisions of the joint resolutions of 1944, which are named and expressly save from amendme?Jt by section 6, are the provisions of those laws which reserveserva the title of the United States, beyond the independer.cc date, to naval reservations and fueling stations, to diplomatic and consular property, and to base generally. Thus, seetion 2 of the Philippine Property act ovel'laps anrl has confirmed t.he reservation of United States title to military a nd naval bases; and section fl of the Prope1ty act has a limitinr, significance, as the house t:.nd senate committees quite logically indicated, only upon section 4. As a result, section 4 is authority for the disposing of United States property in the Philippine,; to the PhiliJ)pine Republic, other than: 1) property acquired by the alien property custodian (covered by section 3 and 5); 2) diplomatic and consular property including property of the high commissioner (excluded by section 6), and, 3) property constituting r.aval reservations, fueling stations, or military bases of the Unitt'd States (excluded by section 6L However, as alre<idy noted and MB. . RECTO STATES . in fee simple iii the United States" notwithstanding the urant of i1 ;dependcnc1; The absence of a similar provision with respect to lands indicates that it was never intended to vest title to tl1em in the United States after July 4, 194G. 3. The attorney general, in further justification of his theory, cites the Philippine property act of 1946, passed by the United States congress on July 3, 1946. The avowed purpose of the 1946 Jsw is "for the retention by the United States government or its agencies or instrumentalities of real and personal property within the; Philippines x x x subsequent to independence." Sections 2 to 5 of the law describe the properties embraced in the provisions of said law, as those held by the President of the United States, the Alien Property Custodian, or any surh officer or qgency as the President of the United Stales mny de.<;ignate undet· the Trading with the Enemy Act, as amended. Nevertheless, the Attorney Genera l ai·gues that title to the base lands 1·cmained in the United States subsequent to independence by reason of section 2 of s:.id Jaw. This a1·gument is manifestly untenu.ble. Not only because it has been shown in the preceding discussion that und•:r the TydingsM .cDuffie Law and J oint Resolution 93 only the use or possession of the bases has been retained by the United States, but aho because the Philippine P i'Operty Act itself, in its section 6, expressly provides that it shall not affect the disposition of the bases held by the United States \lnder the Tydings-McDuff:e .L:iw and J oint Resolution 93. 4. The rest of the opinion of the Attorney Genera.! is de'oted to a cliscussion of the power of the President of the United States to d~livcr to the Philippine government the t itle to the lmse lands and base properties with or without compensation He s:iys that there is nothing in the B2ses Agreement making JJJ·ovision for the conveyance of title because the agreement is concerned only with the use for military purposes of the base~ rathe1· than their ownership. However, it should be evident froffi what hn.s already been stated, that the omission or failure of U.e Bases Agreement to include provisions for the conveyance of title to the basP. Jr.nds is due precisely to the simple reason that such titl1• is deeme<l L.l be in tl1e Philippines, as the sove!'eign gra.ntor of the use of the base l:inds. The Philippines· could not have gre.nted the use of 1 hc base lands if it were not in the first place, the owner thereof. UndCl' a weU known principle of the law of lease, the United States government as the Jessee o~· beneficia ry of t he use. is estopped to deny the title of the lessor or g rantor. I have refrained from discussi!lg the point raised by the Attorney General regarding the adjustment of the pro11erty rights of thr. United Sta.tes, as contemplated in section 2(b} ( 1) of the Tydings-McDuffie Law, which is paragraph ( 1), section 1, Article XVII of our Ci)nstitution. He says that there has as yet he<>n no adjustment of the property rights of the Uni•ed Stat<'.:: in the Philippines, and cites as evidence thereof, the note of the American Ambassador, dated March 14, 1947, announcing that it was " lhe understa11ding- of my government x x x in signing the av,rccment of Mai·ch 14, Hl4'l, x x x ~hat the question of t.he adjustment of any 1·ights and titles held by the United States x x x to rPal pro))t:rty in any of the b:ises covered by the :J.forementioned agreement or any naval rescJ"vations or fuz!ing stations not so covered is rt>served and will be settled subsequently x x x." He advances this conclusion to synchronize with his theory that the title to the base lands', bein~ a United Stutes property rigl1t, has not b!<en transferred to tlle Philippines. It should be observed, h:>wever, that the note of the America.I\ Ambassador reserved the right to adjust mid settle the ''ri,qlits and titles of the United Stales lo real p1·ope1·ty in any r.f the bases.'' but not its title to the base fond~ themselves. The base lands should not be confused with tl1e imprnvements and other forms of real property installed or const ructed there'in at the expense of the United States for milita.ry and naval purposes. As repeatedly stated, the Ba:Jes Agn·em~nt correctly assumes ti.at the t itle to the base lands had become ''ested in the Philippines, if not upon the inauguration of the Commonwealth Government in 1035, then as a direct and immediate consequence of 118 T H E LA WYERS JOURNAL M"ai·ch 31, 1954 MR. BROWNELL'S . as is discussed more fully later, the Tydings-McDuffie act as amended, and the joint resolution of June 29, 1944, already had made provisions for the? disposition, a.fter independence, of the !>(COnd and thi!"d categories of property not covered by section 4 o( the Philippine Property act. Events that have transpired since the enactment on J uly 3, 1!::46, of the Philippine Prope1-ty act, add further confirmation to th•? continuance after Philippine independence of United States title in the base properties. On July 4, 1946, the President of the United States pro.claimed the independence of the Philippine!! as u separate and self. governing nation. The proclamation recites that "in accord wi1 :h and subject to t.he reservations provided for in the applicable statutes of the United States" the United State!'\ withdraws and surrenderg :?.II rights of possession, supt't'vision, jurisdiction, control, or sovereignty in and over the territory and people of the Philippin~s. <Proclamation No. 2695, 11 F. R. 75l7, 60 Stat. 1352L The treaty of general relations between t he United States and the Philippines, signed July 4, 1946 <effective October 22, 1946), (TIAS No. 1568, 61 Stat. 1174) repeats in Article VI the provisions of the Tydings-McDuffie act, section 2Cb> Cl>, that the property rights of the United States of America and the Republic of the Philippines shall be promptly adjusted and settled by mutual agreement- The protocol attached to the treaty says expresr:.ly that ''this treaty does not attempt to regulate the details of arrangeitients between the two governments for their mutual defense; 'for the establishment, termination or regulation of the rights and duties of the two countries, each with respect to the other, in the settlement of claims, :?.S to the ownership or control of real or 1 1ersonal property," etc. F urthe1·, "it is under stood and agr~ed that the conclusion and entrance into force of this treaty is not exclusive of futther treaties and exceutive agreemt>nts providing fo:· the specific regulation of matters broadly covered herei11." 'l'he treaty and protocol clearly reserved the question of Uniterl States property titles for future settlement. . On M:!.rch 14, 1947, there was signed the agreement between the United States ~nd the Philippines concerning military baseg in the Philippines, which entered into force Ma1·ch 26, 1947. The tenor of this fairly detailed agreement was that the Philippine Republic granted to the United States the right to retam the use a::; bases of some Hi bases 01· military or naval reservations listed in Annex A <in general descriptive terms, not by metes and bounds> , end agreed to permit the United States, upon notice, to use some seven ::idditional bases similarly listed in Annex B, as the United States should determine to be required by military necessity. It was further a.greed t hat the United States might expand such bases, exchange them for other bases, acquire additional bases, or 1·elinquish rights to bases, as the military exigencies require. One of the r ecitals of the preamble to the Military Bases Agreeme11t might have raised e. difficult-to-explain ambiguity regarding the title were it. not for the sunounding circumstances. The clausl! stnted that the t.wo countries were desirous of coopt>rating in their common defense, "particularly th1·ough a grant to the United States of America by the Republic of the Philippines in the exel'cise of its title and sovereignty of the use, free of rent, in furtherance of the mutual interest of both countries, '>f eerkin lands of the public dome.in." An exchange of notes between the United States and tr.e PMlippines, simultaneous with his signing of the agreement, makeg clear that this reference to Philippine title is not to all of th~ lands comprising the bases and temporary installations, but is to the parts of those lands n.nd any additional lands that the United States might require in expansion or exchanges, which happen to be undisputed Philippine public lands. The Amcl'ican ambassador's note of March 14, 1947, said: "I have the honor to state, in signing the agreement of March 14, 1947, betwef'n the United States of America ~d the Republic of the Philippines concerning military bases, the understanding of my government that the question of the adjustment of any rights and titles held by the United States pursuant to the {lrovisions of the act of congress of March 24, 1934 as am\ ndt:d, s11 ecifically s·ection l O"(b) thereof, the joint resolution of the congress of June 29, 1944, and the act of congress of July 3, 194'1, and tree.tics and agreements heretofore entered into between the United States and the Philippines, to real property in any of the b~ses covered by the aforcnumtioned agreement or any na,·aJ reservations 01· fueling stations not so covered is t•eserved and will be sett.led subsequently in accordance with thEl terms of tl;e acts and joint resolution of the congress mentioned above." The acknowledgment of the same date by the Philippine. sec .. retary of foreign affairs set out the United States note in full and then said: "I have the honor to state that, without conceding the existence of any rights or titles to the real property herein referred to, my government concurs with the undH standing above set forth.'' So that again the matter of the United States title in and to military base land and military or naval reservations or fueling stations was not settled directly or indirectly in the military base~ agreement, and the titles remained in the United States subject to future negotiation and settlt>mrmt. Nowhere in this background of conduct and transactions ls t.here any basis for as much as implying a . genera.I passage of the title of the United States to the Philippine government in and to the properties comprising the United Stales military and naval bases in the Philippines. Even if some basis could be developed for implying a grant, it would be of no legal consequence in the face of the well-established principle of . lu.w concerning grants of MR. RECTO STATES . the grant of independence and the total withdra.wal of Amer- Bases Agreement, but is ineconcilable with the traditional Amican sovereignty in the Philippines on July 4, 1946. There has, erican policy toward the Philippines. That policy found vivid however, been no formalization of the transfer in the sense that expressio1 1 in Taft's announcemer.t of "the Philippines for the the muniments of title to the bases if any, have not been actually Filipinos.'' It was reiterated in the preamble of the Jones Law deli\1 e1·ed to the Philippine government. wherein the United States Congress clarified that the acquisition I have also refrained from discussing the fundamental question of the: Philippines was not "for territorial aggrandizement" and of whether, e.s between the United States and the inhabitants of 1hat it has ~lways been the put·pose of the American people to the Philippines, t-he former, in strict legal theory, r<'ally acquired withd!'aw their sovereignty over be Islands :rnd to .tecognize their any absolute p1·;.;prietary title to the Philippine territory which independence. The policy culminated in the recognition of inSpain ceded to her under the T1·eaty of Paris. This point wa1;. cllpendence on July 4, 1946, an independence which is supposed touched upon, but 11ot definitdy resolved by Justicf! Holmes in to be full and complete. · the case of Carillo \'. Insular G•H'ernmenl. It is tied up with the doctrine or the insular cases to the effect that the Philippines was an unincorporated, <!.S distinguished from incorporated, ter1·itory of the United States, and was foreign to the United StateH in a "domestic sense," although a part thereof in the "international" sense. I wonld like to ventute a final observation, by way of conclusion, that the belated assertion by Federal officials of the retention f>f title by the United States in the base lands after the recogni. t.ion of independence is not only in plain contravention of the unambiguous terms of the Trea ly of General Relations and the Ma,1·ch 31, 1054 The claim of title to the base lands, after the recognition of independence, w'.">uld make that same independence incomplete, >md impair the territorial integrity and sovereignty of our R.:!public. The retention by the United States in the Phi\ippineH of the ust: and possession of military and na\'ai bases· iS a matter Of expedi~mcy, dictated by )he needs of the "two eountries for mutual defense and protection, not to serve and ·foster any othe:· inter<'St of the United States. For the attainme0nt of that ol,jective, it is wholly unnecessary for the United St11tes to have title of owners!iip to ::ir proprietary intert>st in the base l.inds. 1H1 > land by the sovereign, that a grant of the sovereign must be explicit nnd nothing passes by implication. Nortlwn~ Pacifir. Railway Co. v. Sodrrbero, 1S8 U.S. 526, 531 <Hl03) Great No1·thernRailways Co. v. Unitc><l Statec, 315 U.S. 262, 272 Cl942l. Indicative of the clear understanding reg:uding the actual state of facts, and possibly the law, were the express, formal conveyances to the Philippine Republic in 1947 and 1949, following the execution of the Military Bases agreement, of the title of the United States to some 30 or more military reservation or properties deemed to be in excess of United States military requirements. The transfers were effected by notes from the United States embassy at Manila and accepted by the Philippine departnient of foreign affairs in reply notes. The notes referred explicitly to each property conveyed, and accompanying the Uniied States notes were lists of executive orrlers and Torrens certificates of title under which the United States had claimed title to the militflry reservations conveyed. A subsidiary question has been raised reA'arding title to the areas embraced in the temporary installations provided for by Article XXI of the Military Bases agreement. Most of these propertieP afJparent!y have already been com1 eyed to the Philippine ~overn111ent by the specific conveyances referred to above. However, the legal advi~er's memorandum indicates that there t·ernain b ·10 <1ueh properties held hy the United States, the Fort McKinley reservation and the Port of ?tfanila Reservation. Under Article XXI it was agreed that the United St6tes would retain the right to occupy temporary quarters and installations existing outside of the bases listed in Annexrs A and B, for a reasonable time not exceeding t.wo yenrs as miA"ht be 11ecessnry to develop adequate facilities within the bases for the United States armed forces. It was provided that the temporary periorl might be extended hy mutual agreem<'nt, and there has been one such extension for three years from March 26. 19-19. There il! no express agreement for transferring title to these properties, and there has been no blanket transfer of the United States tiHe in such temporary installations to the Philippine A'Overnment. However, there have b~en the speciffo transfers of most of the pro. pe1ties individually, as indicated. The suggestion is offered in the lceal adviser's memorandum that J}l)Ssibly the exchange of no!es, which took place concurrently with the siQ"llinir of the Military Bases agi·eemeut. purnorted to reserve only the adiustment of tit.le~ tc thosl! properties listed as Annexes A and R bases and naval 1·eservati<ms and fueling- stations. thereby excludi11A' Articlr XXI temporary installations and imnl:1ing an oblieation to transfer them to the Philirmine government. The history of tlH• n<!gotiations underling the aA'rerment and the simultaneous exchange or notes. which is set ont in detail in the state dcnutment reso>arch project No. 319 of Frbruary 1953 C The neJ?otiation of the United States-Philippines Military Bases agre-ement of 1947~ neg-ate this speculation. It is quite clear that the purpose of the a.~reement was to cover the use of the prrmerties for military purposes. and the purpose of the notes was to leave onen for future settlement thi; rights and titles to real property. Thus, no fine or technical distinction between Annexes A and B bases and any other type of military installation was intended in reserving for the future the issue of title. I therefore a.m of the opinion that, except for such milita1'Y or orival properties as the United States has expressly and formally conveyed to the Philinnine republic. as in the exchan,i?e of notes contained in TIAS Hl63 and TIAS 2406, the United States now has whatever title it had prior to July 4, 1946, in the land or a:-r.as comprising the bases listed in Annexes A and B of the Military Rases a~eenment of March 14, 1947, in the naval reservationf:> arid fueling stations not so listed in that a~eement, and in the areas covered by Article XXI of the agreement. Furthermore, I am of the view that there has been no adjustment and settlement of the property rights of the United Stetes in the Philippines within the meaning of the Tydings-McDuffif! Act. The matter has been reserved for future dispo0;ition several times and remains yet to be adjusted and settled. II. You have also .asked whether, under our agreements with the Philippines and our statutes, the United States is obligated to transfH presently without compensation any of the titles to Annexes A and B bases of the 1947 agreement, to naval reservations and fueling stations, and to Article XXI (194'1 AgreC!mcnt) temporary installations; and if there is no obligation, whether the President of the United States is authorized by law to make! such a transfer. I believP. there is little question ,from the history already reviewed, that the congress which cnact'ed the Tydings-McDuffie Act in 1934 intended that title to, and any further operation of, the milifa.ry reservations of the United 8tates in the Philippines, except naval reservations and fueling stations, should pa.ss to the new Philippine Republic upon its establishment in 1946. Conversely, as t-o nav&l reservations and fuelii1g stations, it was contemplated that title in the United States, as wtll as operation by the United Sfa.tcs, would be continued for at least two years; and thereafter, pendi11g the conclusion of negotfn.tions begun in that per!od by the P1·esident, title' and operation would remain with the United States for such time as w'luld be agreed upon by the adjustment nnd settlement between the President of the United States an'J the government of th<? Philippines. Nothing in the statute precluded the making of an arrangement for either permanent retention or complete transfer of th~ na.val propet'ties by the United States, or for some intermediate solution. As to the naval 1·eservati::>ns snd fueling stations, the;e has been no change in the law ol· their status as United States property. Subsequent acts and agreements of the United States and the Philippines have reserved the issue for the future. The Presi<lent of the United Sta.tes continues to be authorized to make the fina1 settlement with the Philippine Republic which will c!ecide for how Ion:;? and upon what conditions the naval reservations and fueling stations, 1·eservt>d under the Tyding5-McDuffie Act, will r<!main the property of the United States 01· be transferred to the Philippine Republic. The President is UIJ(.l"!r no obligation to give these properties to the Philippine government, or to transfer them for compensation. He is vestt>d wiH, complete discretion in the matter. If he concludes that it is in the intereirl of the United States to convey to the Philippine government title lo any of the naval reservations and fueling stations in the islands, with or without compensation, he eujoys complete :: rnthoritv to make the conveyance under section 10 Cb> of the Tydings. McDuffie Act, 48 Stat. 4G3. Hifl authority extends to "the adjustment and settlement of all c;,uestion.'4 relating to the naval reservations and fuC'ling stations." The word "settlement" in its general sense signifies "the act of conferring anything in a forma.l and ncrmanent manner; a bestowing or granting under legal sanction." (80 C.J .S. 125). Since a settlement of the questioni> under se~tion lOC b) might well indade relinquishment of titles, the President has ubv:ously been authorized to make 311)' necessary conveyance~. The reference in section 10(b) to his entering mto negotiations with the Philippine government in no wise detracts from this full authority The language is significant only in the matter of time (i.e., he is to commence! negotiations within two year~ aftev independence) . since as this government's organ in foreign affairs the President is authorized by the Constitution to negotiate on any appropriate suhj<!ct for negoliation w:th a foreign go\•ernmcnt. Moreover, as noted at a later point in this opinion, I am of the view that the authority conferred upon tl1e President by the joint resolution of .T une 29, 1944 tends to confirm, if not augment, his discretionary authority t<! agree with the PhilippiJ.e government and convey to it any of the naval reservations and fueling i<tations in the Philippines. As to the military reservations of the Tyclings-1\kDuffie act, there has been a complete change in the law and status as provided for in 1934. In place of their passage to . the Philippines upon t.h<! achievment of independence the President has been authorized under the joint resolution of .Tune 29, 1944, after negotiation with the President of the Philippine Commonwealth or the Pre-sidcnt of Philippine Republic, to withhold and to retain as bases, <Continue on pa,ge 159) 120 THE LAWYERS JOURNAL March 31, 19{;4 SUPREME COURT DECISION I .;\,1ativiclad /. l'da. De Roxas, Pctitfrmcr-Appdfa1it, v:;. Mrl'l'i't Ro~a8, t't al., Oppositors-A1melfees, G. R. No. L-2396, Dcccmbt:r 11, 1950. 1. lV/LLS; PROBATE; TESTIMONY OF ATTESTING WITNESSES, lVHEN ENTITLED TO FULL CREDIT. - Where the reputation for probity of the three a.ttesting witnegscs has not been impeached their testimony co11firmntory of the due execution of .the will. deserves full credit. 2. ID.; ID.; IV.; RELATIVb'S OF TESTATOR OR HEIU NOT DISQUALTF'IED TO ACT AS ATTESTING WITNESSES. -The law does not bar 1·clatives either of the testator ot• of the heirs or legatees from acting as attesting witnesses to the will. · 3 . ID.; ID.; JD.; #FINDINGS OF TRIAL COURT ENT/ Tf,ED TO GRE.4T WEIGHT; EXCEPTION. - Ordinarily, the findings of fact oi a trial court, because of the benefit of having seen and heard the witnesses, are entitled to great weight. But it is not so, whe1·e the court 1·elied On the condusion of expt!rts and failed to analyze the ornl evidence. 4. ID.; ID. ; ID.; POOR S1'ATIONARY, LACK <.,F COPY, OR NON-INTERVEN1'ION OF T.AWYER OR NOTARY, DOES NOT AFFECT VALIDI'l'Y OP WILD. - The validity of a will is not affected by the fact that it is written on \lOOr stationny, that it was not prepared by a luwye1· or nqtary public, or that no copies were mude. 5. ID.; JD.; ID.; TESTIMONY OF ATTESTING WITNESSES TO PREVAIL OVER EXPERT OPINIONS. - The positive testimony of thi·ee attesting witnesses in favo1· of the duf' <:>xecution of the will ought to p1·evail o\·er expert opinions which cannot be mathematically precise but which, on the contrary, are subject to inherent infirmities. The law, in requiring the production of all the attesting witne~ses present in the Philippines, impliedly i·ecognizes the ahnost conclusive weight of their testimony. 6. ID. ; JlJ.; JD.; WILL NEED NOT BE WR!TTE'N JN Ol1lE CON'l'INUOIJS. ACT. - The law does not require that the will should be written in on{' continuou!> act. 7. ID.; JD.; ID.; REVOCATION; CRUMPLING OF WILL BY TES7'.4TOR WITHOUT IN'rENT!ON TO REVOKE. -· The fact; that the testator crumpled the will does not amount to revncati(m unlcs it is shown that the crumpling was caused with intention to revoke. Claro M. Recto a.:nd Francisco A. Rodrigo for appellant. Vicente J. Fr<rndsco, E stm1islao A. Fernandez, Jr., and Gerardo ,1/ . . 4.lfonso for appellees. DECISION PARAS, J.: Pablo Roxas died in the Municipality of Bulacan, province 'or Bulacan, on July 14, 1946. On August 10, 1946, Natividad Jcasiano <t.he widow) filed in the Court of First Instance of Bulacan a petion for the probate of a will alleged to have been left by Pablo Roxas, devising all his properties to Natividad Jcasiano and Reynaldo Roxas <an adulterous son>. The will is typewritten and worded in Tagalog and the attesting witnesses are Jacinto Y. Enriquez, Fortunato R. Gupit and Martin Rodrigo. The will is dated, in tr.e body, January 1, 1945. ~o date is given in the attestation ch1use. An opposition was filed by Maria Roxas and Pedro Roxas <sister and brother of Pablo Roxas) on the ground that the aliei?ed will . was not executed and attested as i·equired by law, and that, m any event, it was intended as a mere formal request which was, however, subsequently revoked as shown by the fact that it was crumpled with intent to destroy. Upon motion fo1· bill of particulal's filed by the petitioner Natividad Icasiano) the oppositors <Maria and Pedro Roxas) alleged that the wili is vitiated by the following formal defects: "(a) The alleged l&st will and testament was not attested and subscribed by three or more credible witnesses in the presE>nce of the testator and of each otl)er ;. <b) The testator and the instrumental witnesses did not sign the only page of the will on the left margin, nor was the page numbered in letters on the upper part of the sheet; Cc) The attestation clause does JJOt state that the alleged wit1 wsscs thereto witnessed and signed the will in the presence of of the testator and of each other." Aftel' trial, the Court of First Instance of Bulacan rendered a decision dis:i..llowing the 1n·obate of the will. The lower court. concluded that the body of the will was typewritten and signed by the testate:· on a date or occ~sion different from and anterior to the dale or occasion when the attestation clause was typewritten and signed by the attesting witnesses, with the result that the will was not signed by the testator in the presence of the witnesses, and by the latter in the presence of the testator and of each other, as i·equii·ed in sedfon 618 of Act No. 190 as amended by Act No. 2645. This conclusion was motivated by the following circumstances enumerated in the decision: •·(a) That the papc1· on which the alleged will, Exhibit D, is written has been folded and crumpled; <b> Thc.t the body of the will was typewritten before tl:e signature of Pablo M. Roxas had been affixed thereon and before it had been folded ai1d crumpled; (c) That, after it had been folded nnd Cl'umpled, it was smoothened in orde1· to eliminate or minimize as much as possible the folds and wrinkles, preparatory, to. the \niting of the attestation clause en the same typewriter which was used in typewriting the body of the will; (d) That the attestation clause was t ypewritten, single space, and a deliberate effort was exerted to make it appear that it was written by the testator himself a.t the same time with th?. body thereof, but the tell-tnle Jetter 'o' and the inequality of the marginal alignments of both the body and the attestation clause have betrayed the vain effort; Ce) That the texture and fiber of the paper on the portion on which the signature of the attesting witnesses were affixed had been disturbed and affected by the interval of time and the ordinary exposure of the papel' to the !1.lmosphere between the signing of the testator and the attesting witnesses, which fact is i·eveali>d by the greater penetrations of the ink in the signature of Pablo M. Roxas; (f) That had the testator and the attesting wit. nesses signed on the same occasion, the probability was that · one Ol' two fountain pens only should have been used instead of three as testified to unanimously by the expert witnesses both for the proponent and the oppositors." The petitioner ha.s a ppealed. He1· counsel insist that t11e testimony, unai1imous in all essential points, of the three attesting witnesses should be given ~r.ntrolling weight. Counsel for oppositors, upon the other hand, argue that the testimony of I\laria Roxas, in conjunction with the opinions of experts, should Jll'CVail. The testimony of Fortunato Gupit, Jacinto Y. Elll'iquf'z and :Martin Rodrigo <the attesting witne:.ses) tends k show that they were in the house of Rosario Vda. de Ica.siano (mother-inlaw of Gupitl in barrio Sta. Ana, municipality of Bulacan, province of Bulacan, on January 1, 1945. Between two and three in the afternoon Pablo Roxas showed up and, approaching Gupit who was then reading a book, asked him to go to the Sala with Roxas. The latter got from his hip pocket a folded sheet of paper <the will here in nuestion) and asked Gupit to read it. Tn the meantime Roxas proceeded to the dining hall whert:i a mahjong game was being played and called Enriquez and Rodrigo who thereupon went to the Sala and were nsked to read the will previously handed to Gupit. Roxas then made the i·equest fo1· ~he three to act as witnesses. Roxas, using his fom1ta.in pen, signed it in t.he presence of Gupit, Enriquez and Rodl'igo. Gupit then signed with his own pen and, noticing that ink in his signature was spreadi11g, asked for a blotter. Roxas got a blotter from a nearby writing desk and gave it to Gupit who accordingly applied it. Enriquez ar.d Rodrigo, using the pen of Gupit, took their turns in signing the will, the blotter being also applied. Thereafter, Roxas refolded the document and inserted the same in his hip pocket. Fortunato A. Gupit is a certified public accountant. He is the dean of the College of Business Administration and the comptroller of the Arellano University. Jacinto Y. Enriquez come<> f1 om a distinguished family in Bulacan and is a. student in thE' J\.l&l'Ch $1, 1954 THE LAWYI-:RS JOUH;NA,L i21 University of S:mto Tomas. Martin Rodrigo is a businessman and landowner. Gupit is the husband of a half-sister of the JH?titioncr; Enriqticz is a second cousin of petiti:::nel'; and Rodrigo is the husband of a deceMcd cousin of petitioner. The testimony of oppositor i\.Iaria Roxas tends to show thal on December 30, 1944, Pablo Roxas asked from her a sheet of typewriting paper. At about one in the afternoon of January 1, 1!"145. Pablo Roxas came baek to the house of Maria and shuwed the will in question !;jgned by Pablo, clean and uncrumplcd, and without any attestation clause. Pablo execute<l the will as it was shown to Maria, as a mere ruse to make the petitioner continue loving Reynaldo Roxas <adulterou:. snn of Pablo Roxas). Two handwl'iting expcl'ts (Amadeo M. Cabe and Jose C. Espinosa) were employed by the 01 >positors and their testimony tends to support t.he theory that t he body of the will up to the <;ignature of Pablo Roxas was typew~·itten on a plain sheet of paper; that the sheet was subsequently removed from the typewriter and signed by the tcstn.tor; that the sheet, after being crutnpled and folded, was reinserted in t ile typewrite1· for the insertion of the, attestation clause which was signed afterwards by the three attesting witnesses. This expert opinion is based more or less on the circumstances e>numerated in t.hc appealed decision hereinbefore quoted, except that while the trial court obsCrvcd that there are "greater penetrations of the ink in the signature of Psblo l\L Roxas," Espinosa and Cabe found that there is greater diffusion of ink in the signatures of the attesting witnesS€J:i. After a careful examination of the record in the light of contentions of the parties, we have no hesitancy in holding that the appea.lcd decision is erroneous. This case is one in which the will is couched in a language known and spoken by the testator and the signature of the testator nnd the signatures of the three attesting witnesses are admittedly gcnui11e. Such being the situation, the question that arises, far from requiring the intervention of experts, is one merely of credibility of witnesses. In our opinion, the testimon)' of the three attesting witnesses - confinna.tory of the due execution of the will - deserves full credit, not only because of their qualifications < hereinbefore nointed out> · but because their reputation for probity has I!Ot bee~ impeached. The fact that they may have come relationship with the petitioner is not sufficient to warrant the belief that they did not tell the truth. The law, in the first place, does not bar relatives either of the test::i.tor or of the heirs or legatees from acting as witnesses. In the second place, in the normal course of things and to be sure that the witnesses would not let the beneficiaries down, the testator may be inclined to c-mploy, as attesting witnesses, relatives of iuch bcndiciaries, if not wholly disinterested persons. In the thil'd place, under the will, Reynaldo Roxas Ccdulterous son of Pablo Roxas) is named a legatee on equal footing with the pc:titioner, and the attesting witnesses are not related whatsoever with him. In the fourth place, whereas the three attesting witnesses have no direct interest in the subject matter of the will, oppositor Maria Roxas, like the other oppositor Pedro Roxas, is a.n intestate heir ol Pablo Roxas and, therefore, :raturally interested in having the probate of said will disallowed. Ordinarily, the findings of fact of a trial court, because of bl'nefit of having seen and heard the witnesses, a.re entitled to great weight. But, in this case, the lowe1· court relied on the conclusions of experts, and this is obvious from ( 1) its recital of the circumstances that led it to believe that the will was not executed in accordance with law, and (2) its failure to analyze thf' oral evidence. It is a.lleged that the testator had another adulterous child ~Aida), sister of Reynaldo, and it is unn::;tural that he would have failed to provide for said child, if not for his brother and sister Cherein oppositors) in the will, if the testator really intended to dispose of his properties under said will. This is again a mere conjecture which should not prevail over the testimony of the attesting witnesses, not to mention the fa.ct that there is nothing in the record to show conclusively that the testator e\•er admitted that Aida is another adulterous child, coupled with the circunistance that the latter did not live with the testator. As to the omission of the herein oppositors, there might haY e been a i·eason known only to the testator why they should be excluded, or why they need no participation. That the will in question was written on poor kind of stationery, or that it was not p1·cparcd by a lawyer or notary public, or that no copies were made, is of 11 0 moment. It should be borne in mind that the will was executed in January, 1945, when everything was practically in confusion due tc the impending battles for the liberation of the Philippines, and when paper supply was almost exhausted. Aside from the fact that a will need not be prepared by or acknvwledged before a notary public, it is not improbable that testatoi.;, before the date of the will in question, had prepared or seen prcVious wills a.nd therefore '\vas fanuliar with its wording und J.egiil formalities, and that due to thE: abnormal time he undertook to prepare said will without the aid of a lawyer or iwtary public and without making copies thereof. ·~. . We do not venture to impute bias ' t~."·)he expert introduc~d dul'ing the hial, but we hasten to state· ,thb"t·the positive testimony of the three attesting witnesses ouglit to prevail O\'er the expert opinions which can.not be mathematically pr~cise but which, on the contrary, are "subject to inherent infirmities." In the instant case, it is significant that wfole Amadeo M. Cabe observed that four different fountain pens were used in signing the will, Jose C. Espinosa was unable tv determine whether the same pen was used for all the signatures. Upon the other hand, P rnf. H . Otley Beyer believes tha.t one pen was used for foe testator's signature, and a nothei· pen for the signatures of the witnesses. Too mu.::h emphasis and effort, through experts Ca~e and Espinosa, had been placed on the supposition that aftpr the body of the will had been typewritten, the sheet was removed from the machine and, after having been folded and crumpled, it was replaced in the typewriter for the inSP.rtion of the at.. testation clause. The law does not require tha.t the will should be written in ('l!e continuous act; and the supposition does not necessarily, much less conclusively, prove that the signing was not done on one occasion. For the difference in the ink diffusions and penetrations bctwceu the signatures of the testator and those of the three attesting witnesses may not be due solely to the folding and crumpling of the sheet on which the will is written, but on such other factors, as class of ink, class of pens, hnbit of writing, condition of paper, and the use of blotter. Speculations on these matters should give way to the positive declarations of the attesting witnesses. The law impliedly recognizes the almost conclusive wr,ight of the testimony of attesting witnesses when it provides that "if the will is contested, all the subscribing witnesses present in the Philippines and not insane, must be produced and cxa.mined, and the death, absence, or insanity of any of them must be satisfactorily shown to the court." <Section 11, Rule 77, RuleS of Court.) The coritention made by the appellees in their oppositiern that the will was revoked by the testator when he crnmpled the same, requires no serious consideration, in view of their failure to show that the crumpling was caused with the intention tv revok~. Appellces' i·eforence to other formal defects of the will Cother than that hercinbefore dispose on a.lso needs no inquiry, because it i!! not pressed herein. · Wherefore, the appealed judgment is reversed and the will in question is hereby declared prob~ted. So order, with coi'itS against t he appellees. Feriri, Benyzon, Tuazon, Ju.qo a.ud Bautista Angelo, J. J.; concur. Mr. Chief Justice Moran, Justices Pablo and Reyes concur with the scparatf' dissenting opinion of Mr. Justice MontcmC!yor. Mr. Justice Padilla took no part. MONTEMAYOR, J., Dissenting: It is a ma.tter of deep regret to me that I have to disagree with my colleagues who ~igned the learned opinion penned by Mr. J ustice Paras. But fully .convinced of the correctness of the findings of the trial court based on the evidence on r ecord. I am eonstl'ained to dissent and to give my 'reasons for d~ing so. To the statement of fact.s made in the majority opinion, I would like to add other undisputed facts which I believe are 12~ THE LA WYERS JOURNAL March 31, 1954 not only pertinent but may a.lso shed additional light and th1·ow decisive weight in the correct determination of this case. It is a fact testified to not only by Maria Roxas for the oppositors but partly and substantially corrobo1·ated by Natividad Icasiano, thP pP:t.ition<?r and her witness, Remedills Logroi'io, that besirles Reynaldo Jfoxas, the deceased Pablo Roxas had another illegitimate t'hild by his mistress Remedios Logroi10, a daughter nam~d Aida, a few yP.ars yc.unger tha.n Reynaldo, who remained in the custody of her mother. As to Reynaldo, when a little over a year old he was tak<.>n to the marital home of Pablo Roxas and his wife Natividad Icasiano in the ye:u 1940, to live with them beca.use they had no children of their own. Pablo not only failPcl to tell his wife that Refnaldo was his own son, fruit of adulterous relations with Rt:medios, but he falRcly told his wife that the boy whose mother (vnS alrr::ady dead came from an orphanage. According to• Nat\vidad it was only after Pablo's death that she found out Reynaldb'S true paternity. There are several theories, more or less plausible as to the Intervention of Pablo Roxas in the preparation of the supposed will, F.xh. "D", and what he intended by it. One of them is that Pablo Roxas did not design Exh. "D" as his will According to Maria !foxas, her brother Pablo told her on Jan. 1, 1945, when he showed her Exh. "D" with his signature ')n it but without ~he ·attestat!on clause nor the signatures of attesting- witnesses, thP.t he did ;10t intend said document as his last will but only to counteract hi~ wife's natural reaction and to calm and assuage her inevitab!c feeling of righteous anger an-J indignation when after his J1•ath, she came as she was bound to know thnt Reynaldo was his mvn son by his mistress Remedios; because if she were led to be. lieve by the document that all hi~ property would go to her and tc. Reynaldo in ~qual pnrtions, his supposed act of liberality might at least temporarily, induce her to overlook and forgive his infidelity and prevent her from losing her affection for the boy and .sending him away from her. At first blush, this theory mi~ht appeal' to be far-fetched nnd tmreasonable because husbands do not usually commit such a~ts of deception on their wives and widows and expect to get away with it. Hut, let us not forget that Pablo Roxas was not only capable of but actually succeeded in deceiving his trusting and credulous wife far about six years, from 1940 until 1946 when he died, leading her to believe that. the child P..f.ynaldo whom he had brought into their home, was a tota.1 stranger and an orptian whom he hnd gotten from a charitable institution out of pity and to enliven their childless home. Not only this but during those six years of deception, far from being a repentant sinner, he continued his illicit and extramarital relations which resulted in the subsequent birth of another illegitim~te child, Aida. Moreover, it is rather difficult to belie\•e that Pablo Roxas should deliberately execute a will like Exh, "D" whe1·ein he entirely forgot his other younger child Aida, not giving her even a centavo from his considerable estate. The same thing may be said of his mistress, Remedios Logro·no. That he loved Re... medios or at least liked her, there could be no doubt. She was much younger than his wife. Not a few marital troubles, even tragedies have their origin in eM.erly husbands tiring of their elderly wives and feeling attracted to and falling for younger women. At IPast Pablo had sufficient attachment to and felt enough affection for Remedios so as to forget his marital vows and cohabit with her for years and let her be the mother of his two children the illegitimate. It should be borne in mind that Pablo Roxas was quite a wealthy man. Considering the products of his properties alone during h·is long married life with Natividad, there must be considerable con. jugal property which he left upon his death. Therefore he: musf; hs.ve known that out of the partnership property alone, Natividad would be well provided for in her widowhood; and yet under Exh. "D" he would be giving her one-half Cl/ 2> of all his exclusive properties, the other half to one of his two children, aml absolutely nothing to his other younger child, to their mother, and to his only brother and sister, the oppositors herein. Ordinarily, legacies are made to those who enjoy the affeeion of the testator a.nd who in his opinion need the bequest. Pablo Roxas had no legitimate children of his own and sc could do with his estate as he wished, unhampered by legitimes which may be claimed by forced heirs. It would have bPen me.re natural for him to have bequeathed his estate or a part of it not only to Reynaldo but also to his daughter Aida and to their mother Remedios Logroiio. It would have equally been more natural for him to have rememben::d his brother and sish"r Ma1-ia and Pedro, especially since the bulk of his exclusin'i properties was a donatioil from their common uncle Alejandro Roxas. Bnt as it is, under the SUJlJl'lsed will, he forgot and ignored them all 11nd heaped all his bounty and all his liberality on only one child of his and on his wife who apparently was in no need of such bounty. Again, when a person wanb to make a will involving a considerablt' and vuluable estate ns is involved in the present case (worth much more than fifty thousand pesosl, to be sure that the instrument is validly prepared in order to insure its probate. he would avail himself of the services of a lawyer, at least a notary public, presumed to be versed in such legal matters. The preparation of a. will requires special and accurate legal knowl<'dge so as to comply with the various imperative requirements of the Juw. How often have even lawyers themselves overlooked a small detail required by law, resulting in the rejection of the parties of wills by the courts. Pablo Roxas wa.s by no mums an ignorant ma.n. He had been Mayor of his town for two t<'nns. He was also a dentist. He must have 1·eali7.ed that a layr.1an should not recklessly and blithely prepare a. will and exr•ect it to conform with all the requirements of the law and pass the scrutiny of the courts. So, it is t.o be reasonably expected that if he really wanted to execute a will, he w<'uld have bud it prepared by a lawyer or a notary public. Besides, realizing that it was an important document, he would have had copies of it made and kept in different places so that if the origiual by accident or force majeure was lost or destroyr::d, his wishes a.bout the disposition of his property after his death would not be frustrated. But as it is. the parties arc agreed that Pablo Hoxas himself prepared and typed the body of Exh "D", without the benefit of legal advice and without making copies. and afterwards allowed it to be folded, not once but several times, a.nd otherwise crumpled. The foregoing considerations are in support of the throry that Pablo Roxas did not intend to make a will. A corollary theory is that after signing the body of Exh. ''D", and withllut the 1 nttestation clause, he gave it to his wife Natividad. After his death, Natividad and here relatives believing that Pablo really intended Exh. "D" as his will, but finding it to be incomplete proceeded to add the attestation clause, and the attesting witnesses being convinced that the signature of Pablo Roxas on it v•as genuine end to carry out what they thought to be the wishes and will of the deceased, in good faith signed the attestation clause, believing that by so doing they were merely certifying that the signature was that of Pablo Roxas. It is of co"Jrse unnecessary to state that under this theory, Exh. "D" may not be allowed probate. The theory entertained ·and contended for by the petitio·1er is that Pablo Roxas really intended to make a will. That he prepared anr\ typewrote the body of Exh. "D", is not disputed. But it is a fact equally undisputed that a.s Exh. "D" now appears, it wa!l made irrf'J!Ularly and in violation of all rules l)f uniformity, symmetry and continuity. The body of the iust.rument. is typewritten double spaced, and with the signature of Pablo Roxas, it fairly occupies the middlt! of the page or paper, considerinq- the snace or margin left above and bclov.o. Symmetry was observed. Then the attestation clause wai:; added, not with thtl same double spacing bnt in single space, thereby c!estroying uniformity in spacing, Furth~nnore, the elause is crowded into the remaining spac<J below, and despite thr. sing!e spacing to save room it almost reaches the bottom of the page, hardly leaving enongh space for the signatQres of the witnesses. Symmetry is thus sacrificed. What is more, and this is im .. 1•ortnnt, the vertical and horizontal alignment of the left margin and the Jines of the a.ttestation clause do not coincicie w.ith Ma.rch 31, 1954 THE LA WYE HS .JOU RN Al. 123 those of the body of Exh. "D". Moreover, the types of the letters in the attestation clause arc lighter than those in the body of the instrument, indicating a different hand with a lighter touch on the keys. In addition, we notice and fil1d that some letter on the bodv of the instl'Ument arc blurred, especinlly letter "o," whereas· the same letters in the attestation clause are clear, showing th~t the attestation clause was typewritten :i.ftcr the types of the machine had been cleaned and brushed of accummulated dirt. All this leads to the logical conclu~ion and th~ finding that after the body of Exh. "D" was: typewritten, it was removed from the typewl"iter; that later, perhaps much later the types of the machine were cleaned and brushed and the same paper, Exh. "D", was re-inserted and the attestation clause typcwrittPn by a.nether hand, not Pablo Hoxas who typewrote the body. Furthermore, and this iP. equally important, while the crevices and folds in the paper on the body of Exh. "D" be2..r and show the ink of the letters typed on thf'm, indicative of the body having been typed when the paper wz.s still smooth, unfolded and uncrumpled, on the other hand the ink in some letters in the attestation clause, especially thP letter "a" in the word "sa'', as more graphically demonstrated in the photograpl1ic enlargement, did not penetrate and rea.ch the crevices and folds in the proper caused by the folding or the crumpling, equally indicating that the attestation clause was tfped aftE:r tne paper had been folded and crumpled, p£rhaps long after the typing of the body of Exh. " D". Then, we come to the more imp1)1'ta..nt detail. The ink lines in the signature of Pahlo Roxas are clear and distinct and well-dPfincd even whPn those ink Jines meet the fo!ds 01 cl'umplings or breaks in the pa!'li:!r. On the other hand, in thi:! r.ignatures of the attesting witnesses, whue the ink linea meet those same v<>rtical folds, break<i &fld crumplings, srtid ink lines have spread out a..nd become not wPll defined because of the diffusion of the ink. This is r evealed by the photographic enlar¢ement and even to the naked eye. All this goes tC' show according not only to the expert testimoriy but also ocr own evc-ry day e'.'<r>ericnce and observation that when Pablo Roxas signed Exh. ''D", it was ·still unfolded and uncrumpled, and the surface i::.nd texture <Jf the paper still smooth, undisturbed and unbroken, while at the time that the attesting witnesses ~ffixed their signa_tures, the paper had already been folded and crumpled as shown by the diffui:.ion of the ink which had gone in and crept and spread out into the crevices and breaks in the paper Prof. BPyer who wa..<i presented as expert witness by thr petitioner admitkd the possibility that jud,2'ing from the lighter impression or type of the letters of the attestation clause, said clause may have been typewrittPn by a hand other than the onr which tYlltwrote the body. Attemnting to explain the diffusions of the ink on the ink lines on the signatures of the attesting '\\ itnesscs, he stated tha.t they may be due to the class or variety of ink used in the signatures. o-r to a difference in the texture of the paper itself or the manner in which the sil?'tlatures ar~ affixed, so-me writing wfth a heavy hand, others with a lighter hand, and whether or not a blotter was used. Chemical Engineer Espinosa, an expert introduced by the oppositors, on the basis of his expert training and knowl~dl?e of inks, acquired when he was employed in the Bureau of Science and placed in charge of the purchase of inks by the Government, t'ategorically ancf without contradiction a~surcd tl1e court that the ink used in the signature c>f Pablo Roxas and in those of the attesting witnesses ,.,.as of the same class or kind, namely, i:!'on nut!!;all. So, the possibility ">i a difference in the ink used may well be ruled out. As to the other possibilities, assumingfor a moment that all the three attesting witness\'s sign&d with a heavy hand nnd on thrP.e attesting v. itnesses s;gned with a heavy hand and on a portion of Exh. ''D" which happened b l>e porous, and used a blotter, still it is not exp!r.ined why the diffugions of th<: ink on the ink lines of their signatures was not general and all over, but occur only when said ink lines meet the fold, breaks and crumplings m the paper. From the foregoing, and in the assumption that Pablo Roxas really intended to make a will, we may gather the following inferences which to my mind are reasonable and Jcgical. Pabb Hoxas who, according to undisputed evidence owned an Under\V11od typewriter and must have lx-en quit& familiar with, if not adept, in typing c.rdinary documents but lacking the legal knowledge ar.d truini~g required for preparing a will, and ignoring the 11ecessity of attesting witnesses, most likely typewrote the body of Ex.h. " D" from a rough dra.ft he liad prepared, and then signed it. As already stated, the bo<ly standing- alone, with the signature, occupies the middle of the page, and perfectly complies with the rule of symmetry and uniformity in spacing and conforms with the good tn.ste of a good typist. ' He folded the do~ument. and kept it or els£> gave it to his wife Natividad to keep. Afterwards'. perhap~ long afterwards, he lcarndd or, was informed t~at the will was mcomplete because '1f the absence of an attestation clause and the signatures of attesting witnesses. He then had t he attestation clause typewritten by S'.lmeone who knew the phraseology of such a clause, by i·e. inserting in the typewriter the paper, Exh. "D", but after it had bceH folded and more or less crumpled. Then, he proceeded to locate the three attesting witnesses, told them that he had executed a will and wanted them to attest to it. These witnesses either being familiar with his signature or being assured by him that the signature above the typewritten name "Pablo Roxas" was his, readily signed the attestation clause either together on the same occa!>ion or singly on different occasions as he found them. On the basis of our every day observation and experience, this signing by witnesses of clause and certificates attesting to the signature of a person -signing the body of a document, without actu~\ly seeing him sign, is nothing strange or unusual. Not infrequently, we see a deed of sale or mortgage prepared by or on behalf of the parties, sig11ed by them and later taken to a notary public for acknowledgment, and the notary public more often than not, upon being assured that the document expresses the wishes and true intent of the parties, makes out and signs his certificate to the e:ffect that the parties or at least the party conveying the land or assuming the encumbrance was known to him and had appeared before him, signed and executed the document and had given the assurance that the conveyance or the assumpticn of the vb-ligation was ltis free act and deed, when a s a matter cf fa.ct, said party may never have appeared before the sa.id notary, may not be kr,own to him personally. much lf'ss, had given the a!lsura.nce already mentioned. How often judicial officers r.nd officials authorized to administer oaths have placed on a ffidavits their certificates to the effect tllat the affiants had been sworn and afterwal'(ls signed the affidavit in his (officinl's) presence, when in fa.ct the affiant had never taken the oath, and the affidavit h<:.d been prepared and signed somewhere else and all the intervention of the official was to ask the a ffiant if the signature on the affidavit was his, and the contents are true and made volunta.rily and without the use of force. The sii:ming of the attestation clause by the three attesting witnesses in this case may have been done following this quite usual and ordinary practice and all in good faith. Under this theory, it is quite clea-r thnt Exh. " D" was not duly attested to under the law which expressly requires that the testator sign in the presence of the attesting witnesses and that said witnesses sign in the presence of the testator end in tl':e presence of each other. But there is even reason to be!ieve that under the last aforementioned theory the attesting witnesses were not together on the same occasion and could not have signed in the presence of the testator and of each other. Assuming that Pablo Roxas had selected the thrcr! attesting witnesses to sign the attestatiou clause, it is hard to believe that all said witnesses could have bee...-i found L.y him in the same house and the same minute without any previous concert or arrangement. Pablo Roxas was thei~ living in the barrio of Taliptip while the house wllere he was supposed tn have found them was in a different barrio. All the thret: attesting witnesses assured the court that they did not know that 124 THE LAWYEH.S JOURNAL March 31, 1954 Pablo Roxas had executed a will and that they were going to be witnesi:es thereto. His finding them there in that house and their being all together at the same time was according to them, a pure coinciJence, and to me, tOo much of a coincidence, to merit belief. Ordinarily, when a testator executes a will he notifies his witnesses long in advance to insure attendance and then sends for them to come to his house. The execu~ion of .such a document is a solemn occasion, done only once in a lifetime. A testator does not usually go out, carrying his will, hunting for witnesses. But here, without ·any previous notification or _agreement, Pablo leaves his barrio, goes to the barrio of St<l.. Ana and there in.-0ne house, strangely enough, finds his three selected witnesses all ready for the signing. And all this in spite of the fact as shQwn by the evidence for the oppositors that in his own barrio of Taliptip Pablo had other friends of his own confidence, ind naturally that of his family, who could well have been utilized as attesting witne!ses so as to sa.ve him the trouble and the hazard of making a trip of . 4-1/? kilometers to Sta. Ana, in a horsedrawn vehicle, with a stream spanned by a destroyed bridge to negotiate. It is a story t hat requires considerable effort to believe. There is another deta.il which tho apparently of little import, nevertheless may merit consideration. While th'e body of the document, Exh. "D", bears the da.te - January 1, 1945, when Pablo Roxas signed it , the attestation clause has no date, neither does it make reference to the date appearing on . the body. Almost invariably, an attestation clause is made to bea.r a date, the same day that appears on the body of the will when the testator signed it, or else the clause makes reference to said date on the body of the will . At least that is the ~tandard form as may be gathered from books on the subject such as Jones Legal Forms Annotated, ninth ed., pp. 2069-2071, Fisher's Legal a nd Business Forms, 1948 ed. pp. 436, 437, including Modern Philippine I..e~al Forms, Vol. II, pp. 1146-1147, by Ti:>.!l:lda and Rodrigo, the latter being one of the attorn<'ys for the petitionerappellant. But why the absence of a. date on the attestati'on clause on Exh. "D", or at least a reference to the date on the body? Was it a :m'ere oversight, or was it because the witnEssell actually signed on a day later than Janua.ry 1, 1945, when Pablo Roxas signed the will, and said witnesses could not in conscience: s>;ate on the attestation cl.:luse that they all signed it on J3nuary 1, 1945? The majority opinion asserts that the best evidence as to the due execution of a will is the testimony of the attesting witnesses, a.nd that their testimony on this point is practically conclusive. This may be true when t.here is no opposition to the probate of the will. Rut when the probate is opposed, evidence in the form of oral tentimony to disprove the all~ged dUe execution of th1: will, is of course admissible and the testimony of witnesses for the opposition is just as competent, and if worthy and credible can match, even outweigh that of the attesting witnesses. Otherwise, if with the testimony of attesting witnesses to a will we &re going to dii:regard and ignore a.ny . other evidence about the due execution of the instrument, then we would be opening wide the dcor to the commission ot fraud or forgery in the execution and probate of this all-important insl:rum.!nt. An instituted heir or a legatee in a forged will could then get three of his friend to sign the attestation clause, and if the three later testified in court that the supposed testator signed the instrument in their presence end that they signed in his presence and in the presence of each other, then the rightful heiTs would forever be precluded from proving the forgery and asserting their rights in the inheritance. "The testimony of attesting witnesses to a will may be overcome by any competent evidence. • . • Such evidence may be direct, or it may be circumstantial; and expert and opinion evidence is just as competent as any other evidence. Thi;o. rule contended for by appellant would frequently baffle justice and give judicial countenance to many a highhanded fraud. - Opinion by Mr. Justice Dawson in Baird vs. Shaffer, 101 Kan. 585, 168 Pacific 836 C1917)." Sometimes, the condition and physical appearance of a document are not only competent evidence but they constitute a valuable factor which if correctly considered and evaluated in the light of surrounding circumsta".lces, can greatly help the court in determining whether said document is genuine or forged. Animated w itnesses may forget or may exaggerate or understate what they know, saw or heard or what they did. They may be biased a.nd depart from the truth or state halftruths to mislead the court in order to favor one party and prejudice another. Not so with silent witnesses such ns surrounding circumstances and facts found on the paper or object itself. Such mute witnesses play no favorites. If correctly understood and interpreted, they show and reveal the whole truth, in all its nakedness, hiding nothing, forgetting nothing, and without prejudice or mental reservation. The majority opinion says that the determination of this case in great measure hinges upon the credibility of the witnesaes. To this, I J1eartily agree. The trouble is that for no valid reason that I can see, the niajority c:>mpletely ignored the findings of the trial judge, the same official who presided over all the hearings and saw all the witnesses testify and observed their demeanor in court and was in a better position to assess the credit which each witness merits anC ·the weight to be given his testimony; the same judicial · officer who questioned and crosS-exnrnined the witnesses including the experts a.nd even looked in the stereoscopic microscope to carefully observe the enlargements and magnifications of the portions of Exh. "D", made by experts for 'the opposition. That par ty even made an offer to bring the stereoscopic micr..:>scopc to this Court so that the members of this Tribunal t.hrough personal observation and with the aid of scientific facilities could see for themselves the folds, crumplings, types, signatures and ink lines on Exh. "D", which oHer, unha.ppily had not been accepted. It seems that it was the oppositors who have offered all the opportunities and mechanical facilities to the trial court and to this Tribunal with a view to a correct determination of how a.nd when the typing and signing of the body and the attestation clause of Exh. "D" was done. I am afraid that the majority had unwittingly been unduly impressed by the testimony of the three attesting witnesses beC"auce of their qualifications. Says the majority ·opinion on this point: "In our opinion, the testimony of the three a.ttestir.g witnesses - confirmatory of the due execution of the will - deser\'es full credit, not only because of their qualifications (here. inbefore pointed out) but because their reputation for probity has not been impeached." Said qualifications are listed and described in detail in the majority opinion which I quote: "Fortunato A. Gupit is a certified public accountant. He is the dean of the College of Business Administration and the comptroller of the Arellano University, Jacinto Y. Enriquez comes from a distinguished family in Bulacan and is a student in the University of Santo Tomas. Martin Rodrigo is a businessman and landowner. Gupit is the husband of a half-Sister of the petitioner; Enriquez is a se:cond cousin of petitioner; and Rodrigo is the husba.nd of a deceased cousin of the petitioner.'' But I understand that \lp to the present, the cour~s in this jurisdiction are still weighing the testimony of witnesses on the scales of sincerity, truth, and honesty rather than on academic attainments, college degrees and soC'ial prominence. Otherwise, a party in court whose witnesses happen to be simple, ignorant but honest farmers and la.borers occupying the bottom of the social scale, who have not seen the inside of a barrio school, has absolutely no chance or show against the adverse party who may produce witnesses with college or university degrees and members o.f the aristocracy, whose names appear on the social register. I have nothing against the witnesses to the supposed will. Exh. "D". They may ha\'e testified sincerely and truthf.ully according to their lights. But I submit that the unknown and perhaps unlettered witnesses for the oppositors, with no social or academic background to boast of could be just as sincere a.nd tq.1thful. At least, the trial court had nothing to say against their testimony while at the same time, it gave no credit to the testimony of the witnesses for the petitioner as to the due execution of the will. It has Ma.rch 31, 1954 THE LA WYERS JOURNAL 125 been and is still the practice and rule in appellate courts to respect the findings of a trial judge who has had an opportunity to observe the witnesses on the witness stand and t.o evaluate their testimony, unless- there appears in the rerord some fact or circumstance of weight and influencl" which has been overlooked or the signiiicance of which has been misinterpreted.. Ill I see nothing in the rerord to warrant us in disturbing the findings of the trial rourt. In conclusion, I am of the opinion that Pablo Roxas either did not int.end to make Exh. "D" his will for the reason that if he did, he wouJd have availed himself of the services of one wh3 knew how to draft a will, made copies thereof, and bequeathed his estate not only t.o his child Reynaldo and his widow but also t.o his other child Aida, the mother of said two children, s.nd perhaps to his own brother or sister; ol', assuming that Pablo Roxas int.ended to make a will, because· of his ignorance of legal requirements and technicalities, in preparing the body of Exh. "D" which he signed, he left out the attestation clause and when informed of the necessity of said clause, he had Exh. "D" re-inserted in the typewriter and the attestation clause typed by someone else and thereafter, perhaps Jong after, he a!lked and had the attestir.g witnesses sign said cla.USe either singly on different occasions or on . one single occasion, but naturally, -without. those witnesses having been present when he <Pablo Roxas> signed the body of Exh. "D". Clearly, to my mind, the requirements of the law on wills has not been duly complied with. I believe that the decision appealed from should be affirmed. MontcmtiyOt", MDTan, and Ptiblo, J.J. contur. J11.stice Padilla took no part. n 7'rinidad Semira et a.ls., Petitioners tis. Juan Enriquez d als., Respo71thnts, G. R. No. L..2582, February 27, 1951. 1. APPEALS; MANDAMUS TO COMPEL ALLOWANCE OF APPEAL; CORRECTION OF ERROR IN RECORD. - Where the appellant timely caUed the attention of the trial coilrt to a misstatement contained in its order denying appellant's mntiOn for reconsid~ration, and timely filed "a motion for 15 days• extension of the period for perfection of an appeal, it would be unfai"r and unjust for the trial court not to act on both motions for three months and then t.o rule that the decision in the case had becom~ final and e:.r.ecutory for the error was merely clerical and the period t.o appeal had expired even if the appellant was granted the 15-day extension. The appellant might have resorted to too technical a move, but this circumstances did n<>t dispense with the duty of the trial judge to straighten out the n.-cord of the case for all purposes. The appellant is expected t.o file a record on appeal containing pertinent pleadings, motions and orders which are correct; and it cannot rightfully be contended that he is ready t.o do so before · the said order denying reconsideraticn is changed in the sense indicated in the appellant's motion for correction. 2. APPEALS; MOTIONS WHICH CAN BE HEARED EX PARTE; CORRECTION OF ERROR IN RECORD. - Although the appellant set his motion for correction for hearing five days after the 30-day period for perfection of appeal, the trial judge could and should have acted thereon on shorter notice not only because he couJd dispose of it on his own motion <sec. 4, Rule 26) but because the mction might be heard ez parU in view of the nature of th<' order sought and the short period left for perfecting the appeal <Moya. vs. Barton, 43 Off. Gaz., 836). Although litigants are not justified in t.aking for granted that their motions would be granted (Bonoan and Yabut vs. Ventura et al., 43 Off. Gaz., 4602), the courts arc bound to act-in proper case&-On all motions with sufficient dis,. patch necessary to a.llow the parties t.o avail them.selves of proper remedies. This is implied in the mandate that "justice ~II be impartially administered without neceFCl) U.S. vs, Melad, 21 Phil. U8: People ""'· Cah~ra. 43 Phil. U. sary delay" (!!ec. 1, Rule 124). The inherent power of the court "to amend and control its process and orders so as to make them conformable to law and justice" (sec. 6, RuJe 124) carries the -concomitant duty to coned its orders on its own initiative or upon motion of the partiea. l'his duty is not affected by the nature of the error sought t.o be corrected. Potencinno A. Magtibay for petitioners. Respondent Judge in his " own behalf. A ntanio L. Azores for respond~ts Azores. DECISION PARAS, J.: In civil case No. 43 of the Court of First Instance of Batangas between Trinidad Semira and Isidoro G. Mercado, as plaintiffs, and Bienvenido Azores, Apolonia Ar.ores, Manuel Azores, Juana ~ rea, Jose R. Azores, Sinforosa Aitores, .Antonio Azores and Norb<?rta Azores, as defendants, judgment was rendered in favor or the latter on July 7, 19«, notice of which was received by counsel for plaintiffs on August 7, 1944. On August 30, 19«, counsel for plaintiffs filed a motion for reconsideration. On May 26, 1948, aft.er the record had been reconstituted, the Court of First lnsta.nce of Batangas denied the motion for reconsideration, notice of which was receiv~ by cQunscl for plaintiffs on J 11ne 21, 1948. On June 5, 1948, that is, before receipt of the notice of denial, counst:I for plaintiffs filed a motion for an extension of fifteen. days within which t.o peTfect an appeal in case the motion for reconsideration should be dl:!nied. In the t:esolution of May 26, 1!.149, the Court made it appur that the defenc!ants fiJed the motion for reronsideretion and the plaintiffs filed an opposition thereto, when the fact was that the plaintiffs filed the motion and the defendants filed the opposition. In view of this mistake, the plaintiff filed, on the same day he received ,the order of denial, a motion for correction which was set. for Ilea Ting on July 3, 1948. Failing t.o receive notice of any action either on the motion for extension or ~m the motion for correction, counsel for plaintiffs sent a letter of inquiry to the clerk of court. Thus prompted, the court issued s.n order dated September · 25, 1948 -- r~cived by plaintiffs on October 2, 1948, - holding that the judgment of July 7, 1944, had become final and executory for plaintiff's failure t.o perfect their appeal on time even if the motion for an extension of fifteen days was granted, the motion for correction filed by plaintiffs on June 21, 1943, not having suspended the time for appeal. A petition for mandamus wa.ti filed by the plaintiffs against the Judge of the Court of First Instance of Ba tan gas as sole Tespondent, t.o <'Ompel judicial action on the motion for correction, tO set aside thC order of September 25, 1948, and to have the time for appeal declared suspended. In our resolution of March 23, 1950, we directed the petitioners to amend their petition by impleading as ttspondents the defendants in civil ease No. 43; and the case is now before us upon the corresponding ame.'lded petition and the answer thereto. In our resolution of March 23, 1950, penned by Mr. Justice P~dilla, the following decisive prououncement was made: "The petitioner, plaintiffs in the case in the court below, were entitled to l'Xpect action by the responaent C')urt on tht:ir petitions for e'xtension of time to perfect the ap~al and for correction of the order of 28 May l 948. The respondent court was in duty bound to decide and resolve the two petitions and it is unfair for it to d€'clare without first complying with its duty t.o resolve sand de.. cide the petitions for extension of time to perfect the appeal and for correction of the aforesaid orrftr of 26 May 1948.'' When the petitioners filed on August 30, 1944, the motion for reconsideration, they had ,seven days out of the reglementary 30-day period for appeal. They also had the same seven days when their motion for an extensi3n of fifteen days was filed on June 5, 1948. On June 21, 1948, when the petitioners received r..otice of the ordeJ. of the respondent Judge denying their moiion for reconsideration and when they filed their motion for correction, they still had said seven days to per fect an appeal Although the .petitioners set their motion for correction for hearing on July 3, 1948, the respondent Judge could and should have acted thereon on sho~r notice not only because he could dis126 THE LAWYERS JOURNAL March 31, 1954 pose of it on his own motion <Sec. -4, Rule 26) but because the motion might be heard ez pa.rU, in view of the nature of the order aought and the abort period left for perfecting the appeal <Mo:va va. Barton, '3 O. G. 836>. Although litigants are not justified in taking for granted that their motions would be granted <Bonoan and Yabut vs.. Ventura, et al., '3 O. G. 4.602), the courts arc bound to act - in proper cases - on motions with sufficient dispatch necessary to allow the parties to .,-ail themselves of proper remedies. This is implied in the mandate that "justice shall be impartially administered without unnecessary delay." <Section 1, Rule 124.) filed by plaintiffg...petitioners. On Janua.ry 21, 19470 the neon.. stitution waa again set for hearing on February 110 19-U, but upon motion for continuance by plaintiffs-petitioners' counsel, the same was re-set on February 26, 1947. Then f~llowed various motions by plaintiffs-petitioners for extension of time which defendantsrespondents termed "dilatory tactics'"• which resulted in a court notice of h~ing dated April 13, 1948, once more setting the bearing on May 11th of the same year. But on the latter date still another petition for postponeinent on, behalf of the plaintiffs waa filed. The last reconstitution hearing was finally held on May 26, 1948. The inherent power of tht- court "to amend and control ita I agree with. the trial court U1at the decision in this· case renproces:s and orders so as to make them conformabie to law and '1ered on July 7, 19« has become final The motion for extenjustiee," <Sec. 5, Role 124>, carries the concomitant duty to cor- Sion of the period within which to perfect an appeal did not sos-. rect its orders on its own initiative or upon motion of the t>ar- · pend the tunning of the 30-day period <Alejandro v. Endencia, 64 ties. This duty is not affected by the nature of the error aought Phil. 325>; neither did the petition for corl'f!<:tion suspend the to be corrected. In the case at bar, the petitioners timely called period for perfeding an appeal It may be that in some cases the attention of the respondent Judge to the misstatement ron- where the· error or mistake sought to be corrected is serious and tained in his order of May 26, 1948, and, more timely still, filed prejudicial, and ma.y mislead the parties and the courts, especially the motion for an extension of fifteen days to perfect an aP- the appellate tribunal to which the case is sought tc be elevated peal The respondent Judge, in his order of September 25, 1948, on appeal, a pCtition for correction may suspend the period; but ,admitted that, for unknown reasons,, he was not able to diepose in the present case, the . error consisting in mere transposition of of the two motions sooner, but ruled in the .same breadth that the: pa.rties, mistakenly attributing to the defendants the motion the judgment of July 7, 1944, had become final wtd executory for reconsideration, and imputing to the plaintiffs the opposition because tl:i.e error was merely derical and the period to appeal thereto, when it should be the other way, is a mere oversight, a c1erical had expired ever. if the petitioners were granted 16-day extension. error, unsubst.antial, immaterial and harm1ess, which can neithE:r The UI&fairness and injustice of th.is ruJing are obvions from the Prejudice nor mislead anyone. There was only one motion for fact that, while the respondent Judge in dfect admitted the necea- reconsideration of the decision in the whole record, · and that was sity of swift action on petitioners' motions, the petitioners are filed by the plaintiffs; and there was only one oppo.11ition thereto, made to suffer the consequences of his inaction. •md that was filed by the defendants. What is more, thE: order The petitioners might have resorted to too technical a move, mention.a the date of each pleading. So there was no possibility but this circumstance did not dispense with the duty of the re- of misleading anybody. The error was trh-ial and waa known tc> spondent Judge to straighten out the record of the case for all the plaintiffs. So, what prC!judice or harm could have such an purposes. The petiti<;ners are expected to file ::i record on aP- error produced on th<>.m! peal containing pertinent pleadings, motions and orders which are correct; Blld it cannot rightly be contended t.hat they are J"l'ady to do so before the order of the respondent Judge of May 26, 194!1, is changed in the sense indicated in petitioners' motion for correction. Wherefore, the respondent Judge is hereby directed to correct t.he misstatement appearing in his order of May 26, 1948, as pointed out in this -:.pinion. The petitioners have seven da~•s from notice of the order affecting the necessary coJTections within which to ptrfect, if it is .so desired, an appeal !rom the judgment in civil case No. 43 dated July 7, 19«. So ordered with costs against the respondents otb.:r than the respt>ndent Jurlge. M<Wan .F~. Pablo, Bengzon, Padilla; Tuason; Rtyu; Ju.go; and Bautista Angelo. - J.J_ concur - MONTEMAYOR, /., dissenting: With all due respect to the Jeamed opinion of the majorit;y, I am constrained to dissent. I .!arulot give my assent to further prolonging this old case to the prejudice of the defendant!! in Civil C&Sl" No. 43 of the Court of First InstanCl" o( Batangas, who obtained a judgment in their favor as far back as July, 1944., all because of a clericrJ. and imm3terial error that had crept into, not the judgment or decision, but only the order de.'lying the motion for reconsideration. Of course, none of the parties ~uld b~ blamed for the loss of the records of the case thereafkr, but I am impressed by the claim of counsel for the respondents, based on the record. that as early as August, 1945, the Clerk of Court of Batangas had sent out notices of the loss of the records, and that reconstitution was set for bearing on November 19, 1946, but that due to the numerous petitions for postponement and extension of time, filed by plaintiffs-petitioners' counsel, the bearing dragged on and no action could he taken on the motion for reconsideration until May 26, 19'8, when the order of denial was rendered. The record shows that the h.?aring for reconstitution set on November 19, 1946, was not held due to a motion for continuance I am not in favor 'lf court.s' giving too much importance t<-i Errors of this kind, - clerical and unsubstar,tial, and allowing them to unduly prolong or even paralyze court proceedings, especiaJly when, as in the present case, there is reason to believe U1at the motion for correction was part of a design to delay such proceedings. The defendants who obtained a. favorable judgment as far back as 1944, and who have repeatedly complained to the trial court against the numerous petitions for postponement filed by the plaintiffs, in my opinion, have reason to term them a"S they did, "dilatory tactics", and the trial court fJOUJd appear to have realized it and sympathized with said defendants; and it seems that its order of September 25, 1948, declaring the period of appeal to have long expired because the petition for correction of the error did not suspend the running of the period for appeal, was partly influenced by such realization. Said the trial court on this point: "Indeed, defendants have time and again objected to the dilatory tactics adopted by the plaintiffs." The majority opinion seems to attribute the fault in not acting upon the motion for correction promptly, to the respondent Judge and inferentially, and· in part bases the judgment on that supposed fault or negligence. [n justice to the respondent Judge . it .i;;hould be stated that t.he fault or negligence, if any, may not be laid at his door. According to his a!lswer dated November 24, 1948, when the motion for correction w:.s filed by the plaintiffs on June 21, 1948, in the Court of First Instance of Ba.tangas, Judge Enriquez was not in the province of Batangas because he was then holding court sessions in the provinces of Mindoro and Marinduque during the months of June and July of that year. The following month of August, respondent Judge was assigned to hold sessions in Batangas, Batang::is. It ireems that there are two court branches in the province of Batangas, one holding sessiGns in the City of Lipa and the other in the town of Bat.angas.. The petition for correction was filed and kept in the Lipa branch. Natura.J.ly, respondent Judge knew nothing about it. It was only when counsel for the plaintiffs made an inquiry from the Clerk of Court in Lipa in September, 1948, that is, about three month!! after he filed his motion for correction, that said court official March 31, 195t THE LAWYERS JOURNAL 127 sent the petition for correction to the respondent Judge in Batangas, on September 24, 1948, and the respondent Judge acting on it immediately, issued his order the following day,· September 25, 1948. Why the plaintiff!! or their counsel did not fellow up th<'ir petition for correction or even their petition for extension of time, so as to insure prompt action, is not explained. In conclusion, I hold that a pet.ition for correction of a clerical, harmless, immaterial and non-prejudicial error i.n a decision or order, which error can neither prejudice nor mislead anybody, cannot and should not be allowed to suspend the period for perfecting the appeal. · Ill Sebastian. C. Palanca, Petitiom·r 1.1s. Potenciano Pecson, ete. et al., Respondents, G. R. Nos. L..6334 and 6338, Febru41"11 25, 1954. 1. SPECIAL PROCEEDINGS; ATTORNEY)S LIEN; CASE AT BAR. ·- In Special Proceediil'l"s No. 12126 of the Court of First Instance of Manila, D was the attorney of P, one of thP heirs and an oppositor to the probate of the will of his deccMed father. P did away with the services of D who withdrew as P's counsel after the appeal from the decision of the court probating the will had been elevated to the SuPremc Court. On July 7, 1952, D filed in th<? testate prr,_ ceedings a notice of attorney's lien, alleging that he_ was counsel for P from Sept. 1950 until March 1952 and stating th€ reasonable \•aJue of his services as well as the unpaid balance; and praying that the statement be entered upon the records to be henceforth a lien on thr. property or money that may be advanced to P, or that may be ordered paid to him by the court. On July 9, 1952, D filed in the same · testate proceedings a petition, praying the court to fix and declare his sttorney's fees anrl to enforce the unpaid balance as a lien upon the property or money that may be advance'd in favor of P or upan any sum that may be ordered pa.id to the latter. HELD: Under Sec. 33, Rule 127 of the Rules of Court the attorney may cause a statement of his lien to be registered even before the rendition of any judgment, the purpose being merely to establish his right to the lien. 2. IDEM; IDEM; RECORDING OF ATTORNEY'S LIEN DIS.. TINGUISHED FROM ENFORCEMENT OF ATTORNEY'S LIEN. - The recording is distinct from the enforcement of the lien, which may take place only after judgment is secured in favor of the client. 3. IDEM; IDEM; SECTION 3 RULE 127 CONSTRUED IN THE LIGHT OF SECTION 24 OF RULE 127 AS AMENDED BY REPUBLIC ACT 636. - The provision permits the registration of an attorney's lien, although the lawyer concerned docs nqt finish the caS<? successfully in favor of his client, because an attorney who quits or is dismissed before the conclusion of his assigned task is as much entitled to the protection of the rule. Otherwise, a client may easily frustrate its purpose. Indeed, this construction is impliedly warranted by section 24 of Ruic 127, which is amended by Rep. Act No. 636. In the case of DaHke vs. Viiia, bl Phil. 707, it was already pointed out that the filing -:>f a lien for reasonable value of legal services docs not by itself legally ascertain and determine its amount especially when contested j that it devolves upon the attorney to both allege and prove that the amount claimed is unpaid and that it is reasonable and jusi:; the client having the legal right to be heard thereupon; and that the application to fix the attorney's fees is usua.lly made b<?forc the court which renders the judgment or may be enforced in a.n independent and separate action. 4. IDEM; IDEM; PROBATE COURT MAY DETERMINE ATTORNEY'S LJEN FOR SERVICES RENDERED TO OPPOSITOR WHO CONTESTED THE ALLOWANCE OF THE WILJ~. There is no \'alid reason why a probate court cannot pass upon a proper petition to determine attorney's fees, if the rule a~ainst multiplicity l'lf suits is to be activated and if we are to concede that, as in the case before us, said court is to a certain degr<?f' already familiar with the nature and extent of the lawyer's services. Ceferino de los Santos, Sr. and Ceferino de los Santos, Jr. for petitioner. Respondent Dinglasan in his own behalf. DECISION PARAS, C. J.: In · Special Proceedings No. 12126 of the Court of First Instance of Manils, Rafael Dinglasan was the attorney of Sebastian Palanca, one of the heirs and an oppositor to the probate of the will of his deceased father Carlos Palanca y Tanguinla.y. Due to the differences of opinion, Sebastian l'alar.ca did away with the ser-vicc3 of Atty. Dinglasan who in fact. withdrew a;; Palanca'.;: counsel afte!' the appeal from the d<?cision of the Court e>f First Instance of Manila probating the will ha.d. been elevated to the Supreme Court. On July 7, 1~52, Atty. Dinglasan filed in the testate proceedings a notice of attorney's lien, alleging that he was counsel for Sebastian Palanca from September 1950 until March 1952; that the reasonable value of his services is at. least P20,000.00; that Palanca · had paid upon account only the sum of !'3,083 leaving an upaid balance of !'16,917.00; and praying that the statement be entered upon the records to be henceforth a lien on the property or money tha.t may be adjudged to Sebastian Palanca, or that may be ordered paid to him by th~ court. On August 16, 1952, Judge Potcnciano Pecson ordered that the nc.tic.e of attorney's lien be attached to the record for all legal intents and purposes. On July 9, 1952, Atty. Dinglasan filed in the same ttstate prOceedings a pe"tition, pra.ylng the t:ourt of First lnstance of Manila to fix and declare his attorney's fee at not less than P20,000.00 and to enforce the unpaid balance of P!G,917.00 as a lien upon the property or money that may be adjudged in favor oi Sebastian Palanca or upon any sum that may be ordered paid to the latter. Sebastian Palanca moved to dismiss the foregoing petition, but the motion wa.s denied on August 30, 1952. Palanca'S· subsequent motion for reconsideration was also denied for lack of merit. The action of Judge Pecson in ordering that A.tty. Ding. lasan's notice of attorney's lien be attached to the record and in taking cognizance of the petition to determine his fees in Special Proceedings No. 12126, is assailed by Sebastian Palanca in a petition for certiorari filed with this Court against Judge Potendano Fecson and Rafael Dinglasan CG. R. No. L-6334). On July 10, 1952, Sebastian Palanca filed in the testate proceedings a. petition 'for an advance inheritance in the ~um of P2,000.0U. On October 21, 1952, Judge Pecson issued an order suspending action on Palanca's petition until Atty. Dinglasan's petition to determine the amount of his attorney's lien shall have bef:n fina!Iy disposed of. His motion for reconsideration having been denied on November 7, 1952, Sebastian Palanca. instituted in this Court a petition for mandamus ag!linst Judge Pecson and Atty. Dinglasan 1G. R. No. L-6346>, to compel thE' respondent Judge to act upon l 'alanca's petition for advance inherita~ice. We a.re not here concerned -r:ith the nature and extent of thf> contract between Palanca. and Atty. Dinglasan as to the latter's professional fees, and the principal issues arising from the pleadings are (1) whether the notice of attorney's lien may be allowed at the stage when it was filed, namely, before final judgment ia favor of Palanca was secured by respondent attorney, and C2> whether the respondent Judge acted ;>roperly in entertaining the petition to determine Atty. Dinglasan's fees and in holding in abey. ancc Palanca's petition for adva.nce inheritance. It is contended for petitioner Palanca that Atty. Dinglasan not havinl: yet secured any decision or judgment in favor of the former, the notice of attorney's lien could not be allowed under section 33, Rule 127, of the Rules of Court .which docs not authori7.e a lien upon a. cause of action. Section 33 provides that an attorney "shall also have a lien to the same extent upon all judgments for the payment of money, and executions issued in pursuance of such judgments, which he has secured in a litigation of his client, from after the time when he shall ha.ve caused a statement of his claim of such 1ien to be 128 THE LA WYERS JOU~NAL Match 31, 1954 entered upon the records of the court rendering such judgment, or is suing such execution, and shall have caused written notice thereof to be delivered to his client and to the ndverse party; and he shall have the same right and power over such judgments and executions as his client would have to enforce his lien and secure the payment of his just fees and disbursements." Under this provision we are of the opinion that the attorney may cause a statement of his lien to be registered even before the rendition of any judgment, the purpose being merely to establish his right to the lien. I The recording is diStinct frcm the enforcement of the lien, which may take place only after judgment is secured in favor of the client. We believe also that the provision permits the registration of a.n attorney's lien, although the lawyer concerned does not finish the case successfully in favor of his client, because an attorney who quits or is dismissed before the conclusion of his assigned task is as much entitled to the protection of the rule. Otherwise, a client may easil)'· frustrate its purpose. Indeed, this construction is impliedly warranted bf section 24 of Rule 127, which as amended by Republic Act No. 636 provides a.s follows: "A client may at anytime dismiss his attorney or substitute another in his place, but if the contract between client and attorne)' has been reduced to writing and the dismis.r;,al of the attorney was without justifiable cause, he shall be entitled to recover from the client the full compensation stipulated in the contract. For the payment of such compensation the attorney shall have a lien upon all judgments, for the payment of monry ·anr: executions issued in pursuance of such judgments rendered in the cases wherein his services had been retained by the client." The petitioner, however, argues that this provision cannot be availed of by respondent Dinglasan because there is neither a written contract for attorney's fl.--e nor a showing that his dismissal was unjustified. This argument is without nierit, inasmuch as if there was a written contract and the dismissal was unjustified, Atty. Dinglasan would be entitled to the entirety of the stipulated compcnsa.~ion, even if the case was not yet finished when he was dismissed. Jn situation like that of respondent Dinglasan the lawyer may claim compensation only up to the date of his dismissal. For the payment of such compensation he shall neverUicless have a. lien "upon all judgments, for the payment c>f money and executions issued in pursuance of such ;udgments .,.endered in the cases wherein his ~erviccs have bun retained by tl:c client.., Section 24 does not state that the judgment must be secured by the attorney claiming the lien. The petitioner's further contention that respondent Dinglasa.n's remedy is to file a separate action for damages or for compensation, is untenable. Jn the case of Dahlke vs . Viii.a, 51 Phil . 707, it was already pointed out that the filing of a lien for reasonable value of legal services does not by itself legally ascertain and dt'termine its a.mount especially when contested; that it devolves upon the attorney to OOth allege and prove that the amount claimed is unpaid and that it is reasonable and just; the client having the legal right to be heard thereupon; and that the application to fix the attorney's fees is usually made before the court which rendera the judgment or may be enforced in an independent and separate action. We see no valid reason why a probate court cannot pass upon a proper petition to determine attorney's fees, if the rule 11.ga.inst multiplicity of suits is to be activated and if we are to concede that, as in the case before us, said court is to a cert..'lin degree already familiar with the nature and extent of the lawyer's services. In view of what has been said, it. is obvious that the respondent Judge neither acted without jurisdiction nor abused his discretion in the matter herein complained of. The petition for certiorari in G. R. No. L-~334 and the petition for mandamus in G. R. No. L6346 are hereby dismissed with costs against the petitioner. So ordered. Pablo, Padilla, Reyes, Bautista Angelo, Bengzcm.; Mcm.temayM"; J-ugo, and Labrador. - J.J. concur. IV Aurora Paner, Petitioner, vs. Nicasio Yatco et al., R•sptmdenta, G. R. No. L82042, August 31, 1950. MANDAMUS: APRROVAL OF RECORD ON APPEAL; WRIT VOES NOT ISSUE WHEN APPEAL IS NOT MERITORIOUS. - An order denying petition for relief to set aside a judgment may be appealable for which writ of mandamus may be granted to compel the trial court tO approve the record -:>n appeal, but when it is very evident as shown by the facts of the case that the granting of the writ would not profit the petitioner to obtain said remedy, for like a mirage it would merely raise false hopes and in the end :lVail the petitioner nothing, said petition for mandamus must be dismissed. Marcelino Lontok for petitioner, Claro T. Al11teda for respondent Batibot. DECISION MONTEMAYOR, J: This is a petition for mandl\mus to compel the respondent Judge to approve the record on appeal filed in Civil Case No. 7685 of the Court of First lnstancc of Laguna. The facts necessary for an understanding and determination of this case are as follows: On April 11, 1921, Emiteria Miranda, widow of Maximo Paner allegedly executed a. deed of sale of 1/2 of lot No. 751 of the Calamba Estate Subdivision covered by Transfer Certificate of Title No. 91 in the name of Maximo Paner in favor of Severo Balibot for the sum of "200.00. In September, 1947, the heirs of Severo Batil>e>t filed in the Court of" First Instance of Laguna Civil Case No. 86 which after reconstitution, was given number 7685 of the same Court, against Emiteria Miranda and her granddaughter Aurora Paner alleging that in March, 1!>48, the defendants, particularly Emiteria Miranda, deprived the plaintiffs Qf the possession and ownership of the lot in question causing damage in the sum of PSO, and asking that plaintiffs be declared the owners of 1/2 of lot No. 751, and that they be paid the damage ' caused. Atty. Juan A. Baes, acting as counsel for the two defendants, filed an amended answer on September 3, 1947, alleging that the deed of sale above-mentioned was a forgery, and that defendant Emiteria Miranda had no knowledge of the execution thereof and that the mark therein affixed was not hers; that the original owner of the land in question was Maximo Paner, the deceased husband of Emiteria; that after his death he wl'ls sucCffded by his son Maximino Paner, father of defendant AurorA Paner; and that in February, 1945, Maximino Paner was mas.. sacred by the Japanese and he was succeeded by on:y child Auro~a Paner. The answer prayed for the dismissal of the c"Jm?>iaint and for payment by the 9lainl:iffs of the sum of '300.00 as damages. On the same date that the answer was filed, Atty. Baes filed a motion in court alleging that defendant Aurora. was only three years old, and at the same time asking the court to appeint her co-defendant grandmother Bmiteria as her gurtrdian ad !item. The case was he&rd on September 3 and 9, during which evidence wns a.dduced by both parties - ' plaintiffs and defendants. On September 10th Emiteria took her oath as guardian ad litem of Aul'Ora. On September 12th the trial court rendered its decision wherein it found that the deed of sale was genuine a.nd had been rluly executed by E1niteria Miranda. The court equally found that the land covered by the deed belonged to Maximo Paner who had bought it from the Bureau of Lands since July 1 1910, before he married Emiteria Miranda, and that consequently, she had no right to sell the same as her property. The trial court dc-clared the dec-1 of sale null and void, but considering the good fa.ith of the buyer Severo Batiliot, the court sent..enced the defendants to reimburse the purchase price of P200.00 to the plain. tiffs with interest at 6% per annum from the date of the deed, and further sentenced the defendants to compensate the plain. tiffs for the value of the improvements introduced by them or their predecess(lr in interest. On behalf of the defendants, Atty. Baes filed a motion for reconsideration l'.nd new trial, dated October 17, 1947, but his mOMa.rch 31, 1954 THE LA WYERS JOURNAL 129 tion was denied for lack of merit. He did not appeal. About two months later or rather on December 24, 1!:147, Atty. Marcelino Lontok, representing defendant Aurora Paner, filed a petition in the trial court asking tha..t its decision of September 12, 1947, be 'set aside, as against his clilmt Aurora Paner, or at least to permit her to file her appeal frcm said decision. The plaintiffs opposed said petitiC1n and the trial court by order of January 8, 1948, denied the :cia.me on the ground that. it was "not well-founded, and thal the decision in this case has become final." On January 21, 1948, Atty. Lontok filed his notice of appeal from the order denying his petition for reconsideration and prepared and submitted his record on appeaJ and the corresponding appeal bond. The trial court hy order of Feb. 9, 1948, refused to approve the record on appeal on the ground that it was filed beyond the reglementary period. As already stated, to compel the respondent Judge to approve said record on appeal, the present petition for mandamus was filed in this Court. In refusing to approve the record on appeal, the respondent Judge seems to have labored under the impression that the appellant and herein petitioner was appealing from the court's decision of September 12, 1947, this, judging from the ground or reason giwm for the refusal, namely, that the record on appeal was :!iled bc!yond the reglementary period. But in reality the appeal was being taken from the order of January 8, 1948, denying· the petition to set aside the decision of September 12, 1947, a petition 1•1·esumably based on Section 2, Rule 38 of the Rules of Court. '!'hat order of denial was, of ·course, appea.lnble and if the record on appeal was otherwise proper nnd complete, the respondent Judge was bound to approve it and he may be compelled to do so by a writ of mandamus. · So, strictly and legally speaking, the present petition for niand::unus may be granted. However, before acting upon the petition, we may inquire into the facts involved in order to determine whether once the writ of mandamus is granted and the case is brought up here on appeal, the app.el~ ant has any chance, even possibility of having the basic decision of the trial court Of September 12, 1947, set a.side or modified; for if the appellant has not that prospect or likelihood, then the granting of this writ of mandamus and the consequent appeal would be futile and would mean only a waste of time to the ~rties and to this Court. This inquiry can easily be made from a copy of the record on appeal now before us as well as the pleadings filed by both parties. The whole theory of counsel for th(> petitioner in insisting in 6etting aside the judgment of September 12, 1947, agninst his client, ftie minor Aurora Paner, is that the cC1urt acquirc<l no jurisdiction over her person at least during the trial. He contends that inasmuch as the child's grandmother and g:ua-rdian ad litem did not take her oath as such guardian until September 10, 1947, that. is. after the hearing- of the case which was held on September 3 and 9, during sa.id hearings, the minor was not duly represented and the court acquired no jurisdiction ovu her. Furt.hennore, said counsel contends that her guardian ad litem had interests in the case adverse to that of her ward which accounts for said guardian failing or refusing to appea.l from the decision. The contention of counsel as regards jurisdiction is based on a tnere technicality. The r ecord fails to show the day when the court appointed the grandmother Emiteria Miranda as guardian ad litem of her gra.nddaughter, but in the absence of evidence on this point, it is reasonable to presume ~hat the appllintmcnt must have been made on the very day that the court was asked to do so, namely, on SC!ptember 3, 1947, the first day of the hearing. It is reasonable to presume that the respondent realized the importance a.nd 11ecessity of having a ininor party to a case duly represented in court during its judicial proceedings, and that he must have made the appoinbnent perhaps verbally before com. mencing the hearing. During the hearings held on September 3 and 9, 1947, the attomey for the defendants Emiteria and her ward Aurora presented evidence calcula.ted to prove that the lot claimed by the plaintiffs was never sold to them, evidence which can in no mannf'r be regarded as contrary to the interests of Aurora Paner. On the contrary, it was designed to keep whole and preserve Aurora's title to the property in litigation. Counsel for petitioner claims that Emiteria did not take her oath as guardian ad litem until September 10, 1947, that is, one day after the last day of the hearing. In the absence of any denial by respondents of this· claim, we shall assume it to be true. But even thet1, as long as during the court proceedings, Emiteria had acted as such guardian to represent . her wa.rd and protect her interests, her belated taking <Jf oath did not in any way adversely affect or prejudice the intrests of the minor. After all, the oath-taking was a mere formality. It should be remembered that when the decision WM rendl!rcd on September 12, 194:7, the grandmother Emiteria Miranda, had already taken her oath as giw.rdian ad litem and she was fully authorized to appeal from the decision. In fact, through counsel mid guardian and her ward filed a motion for reconsideration and new trial but v.hen that motion was denied they did not appeal. The reason for said failure to appeal is found in a letter written at the time by the defendants' counsel to the lawyer of the plaintiffs which quoted in part reads as follows: "I did not appeal the case because I believe that in doing so, the parties will incur more expenses than the 2.ctual price of the land in litigation." And, we are inclined to agree with the said counsel that considering the amount in\folved in the decision, it was really wiser to abide by said decision instead of taking an appeal, and paying t.hc necessary court and attorney's fees, with no definite guaranty or assurance .,f winning the case in the end. As to th(' alkged conflict in interests between the guardian and her wa.rd, we fail to see said divergence. We should bear in mind that the guardian was iio stranger to but a grandmother of the ward. In he1· answer tc the complaint in the trial court, said guardian far from claiming the lot in question as her own, said that it belonged to her ward as an inheritance from her grandfather, deceased husband of the gua.t"dian. In fact, in order to protect and conserve the property i;o that it. may go to her granddaughter and ward, whole and unburdened, the grandmother and guardian went to the extent of disclaiming and denying any previous alienation or conveyance of said property to the plaintiffs. All this fails to show any conflict of interests between guardian and ward. Now, cominrr to the petition filed in the trial court on December 24, 1947, to set aside the decision of September 12, 1947, although it was presumably filed under the provisions of Ruic 38 of the Rules of Court, sa.id petition made no mention whatsoever of .!taid ~ule and what is more important, it failed to allege any of the grounds on which a petition for relief is usuall1· based, namely, fraud, accident, mistake, or excusable negligence. As a matter of fact, after examining the re<:ord we 3.re unable to find that any of these grounds existed or could be successfully invoke by the minor, a.nd may be that was the reason why they were not alleged in the petition. And, if the case were taken to this Court on appeal and we were to examine the facts of the case from the record on appcai' as we have done now, we do not see how the decision of the trial court of September 12, 1947, even assuming it to be erroneous as not altogether in conformity with the l:i..w and evidence, can be set aside. From all this it is not difficult to imagine and believe that the trial court was not without reason in refusing to set aside its decision of Sept.. ember 12, 1947, and that it would not profit the petitioner to obtain the remedy of mandamus now sought, for like a mirage it would merely raise false hopes and in the. end avail her nothing. In view of the foregoing the petition for ma.ndamus is hereby dismissed without pronouncement as to costs,. Moran, Ozaeta, Paras, Pablo, Bengzon; Tuazon and Reyes. J.J. concur. 130 THE LA WYERS JOURNAL March 31, 1954 v Domingo T. Dikit, Petitioner,• vs. Ramon A . Ycasiano, et al., Resvondents, G. R. No. L-3637, May 23, 1951. PLEAOING & PRACTTCE: UNL.4.lVFUL DETAINER; PRELIMINARY PREVENTIVE INJUNCTION CANNOT ISSUE IN UNLAWFUL DETAINF..'R. - In an action for unlawful detainer, the judge of the municipal court issued a writ of preliminary injunction ordering the occupant of the preinisC's in question, his attorneys, representatives, agents and "mployees to refrain from entering or making use of the snmc. HELD: If the action in which the prehmina!'y injundion w~ issued were of forcible entry, the judge did not act m excess of his jurisdiction in issuing said preliminary injunction, unrler section 3 of Ruic 72 but as the action was of unlawful' detainer; the judge a.cted in cxc~s3 of his jurisdiction :mrl, ther~fore1, the writ of pt•e:liminnry injunction issued must be set aside as null and void. Jose Cando for appellant. Assistant Solicitor General Inocencio Rosal and Solicitor Jesu.1; A. A va11ce1"'ia for appellee. DECISION FERIA, J .: This is a. special civil action of certiorari against the responcients b:lsed on the ground that thP. r~spondent Judge of the Municipal Court of Manila acted in P.xcess of the court's jurisdiction in issuing a writ of preliminary injunction, upon a petitioR e:c7J<lrte of the respondent Consolidated Investment Bldg., Inc., ns plaintiff, against the petitioner as defendant in the civil action or case No. 9708 of the sa.id Municipal Court to eject the latter from the premises leased to him by the former. In said writ the respondent Judgt> ordered that said defendRnt, his nttorneys, representatives, agents and employees refrain from entering or n1aking use of the lobby and mezzanine of the Consolidated In\'Cstment Building at Plaza Goiti, Manila.. There is no question or dispute between the parties and they both agree that if the action instituted by respondent Consolid4ted Investment Bldg. Inc. against the petitioner Domini;ro T. Dikit in sa'id civil case No. 9708 were of forcible entry, the respondent Ju.:ige did not act in ex~ess of the court's jurisdiction in issuing said preliminary injunction under Section 3, Rule 72 of the Rules of Court; but if it were of unlawful detainer, the respondent Judge :l.Cted in excess of the <'onrt's jurisdiction and, therefore, the writ of preliminary injunction issued must be set usjdc ns null and void <Piit vs. De Lara and Velez, 58 Phil. 765, 767; Sevilla vs. Judge De los Santos, G.R. No. L-1980, promulgated on May 25, 1950). Sedion 1, Rule 72 of the Hul1-s of Court, which ddines and distinguishes forcible entry from unlawful detainer, provid(s: SECTION 1. Who ma11 in!ttitute proceedings, awt w/il'n. -Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a landlord, vendor, vendee, or rther person against whom the poss:es::iion of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such landlord, vendor, vendec, or other person, may, at any time within cne year a.ft.er such unlaWful deprivation or withholding of possession bring an action in the proper inferior court against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs. Applying the above quoted provisions t.o the present case, we are of the opinion, a.nd so hold, that the facts alleged in the com. plaint filed in said case No. 9780, constitute an action of unlawful detainer and not of forcible entry, and therefore the respcmdent Judge acted in excess of the Municipal Court of Ma. nila's jurisdiction in issuing the writ of preliminary injunction ccmplained of. The pertinent parts of the complaint reads as follows: That with the aforementioned representations and assur~ ances given to herein plaintiff as n ba~is, dcfc.>ndant had appli<'d for the lease of the lobby and mel'.za.nine of the Consolidated Iuvcstments Ruilding located at the Plaza Goiti, City of Manila, and within the juri::;diction of this Honorable Court, under the basic conditions of constructing the partitions that will scparnte the lobby from the side entrances of the building, to pay an advance rental of !'30,000.00 applicable to the last six ((i) months under a proposed 5-year lease-contract, and to pay in advance the current monthly rental of rs,000.00 from the time that the construction of the separating walls or partitions is completed. That by reason 2.nd on the strength of said undertakings of the defcnrlant, the defendant succe<'ded in getting the possession of the lobby and mezzanine of the Consolidated Investment Building, proceed with the construction of the ~t> parnting walls or partitions mentioned above and carried out the remodelling work that said defendant would require to put the premises in question in condition to be used hy "The Bank of Manila." which, the said defendant had assured the plaintiff, will stat"t operating early in July, 1949. That the monthly rental of f'5,000.00 would accrue !ind become payable in ~dvance within the first five (5) days of each month upon completion of the construction of the sc.. parating walls or partitions mentioned above. x '!'hat having failed to obtain the proper license to operate his proposed "The Rank of M:i.nila", the defendant on September I, 1949, had relinquished 2.11d turned over to the plaintiff the lobby and mezzanine o·f the Consolidated Investments Building, and said defendant had accepted the position of Vice. President of the proposed "The Bank of Manila" under a new group of capitalists. That subsequently thereafter defendant reg-.i.ined possession of the lobby and mezzanine of the Consolidated Investments Building by representing to the plaintiff that he <the defendant) was able to obta.in the cooperation of certain Fili-· pino residents of Hawaii who were ready t.o capitalize his proposed "The Rank of Manila" and that said capitalists were willing to pay to herein plaintiff an advance rental of f'l00,000.00 applicable to the last months under a 5-year lease-contract, at the rate of f'S,000.00 per month. x x x That defendant, notwithstanding the several extensions of time requested by him, not only has failed to pay the advance rcutal promised by him, but also has faileri and refused to pay uuto the plaintiff the curre!lt rentals corresponding to the months of October and November, 1949, at the rate of !'5,000.00 monthly, notwithstanding the repeated and persistent demands ma.de on him by the plaintiff for at least five days prior to the !iling of the complaint. That plaintiff likewise had demanded of the defendant that the latter vacate the lobby and mezzanine of the Consolidated Investments Building, which demand was made for more than five days prior to the ·filing of this complaint, but said dP.fcntlant has failed and refu:oed to rumply with said friendly demand up to the present timt-. The plaintiff's action was not of forcible entry, but of unlawful detainer, because according to said Section 1 of Hulc 72, forcible entry is the act of depriving a person of the material or actual possession of land or building or of taking possession thereof by force, intimidation, threat, strategy or stealth, against the will or without the consent of the possessor; while unlawful detainer is the act of unlawfully withholding the possession of a land or building against or from a landlord, vendor, vendee or other persons, after the expiration or termination O f the detainer's right to hold possession by virtue of a ~ontract, express or implied. In forcible entry, the possession of the intruder or person who de- · prives another of the possession of the land' or building is illegal from the beginning, because his entry into or taking possession thereof is made against the will or without the consent of the March 31, 1954 THE LAWYERS JOURNAL 131 former possessor. In unlawful detainer the possession of the dets.iner is originally legal or lawful but it becomes illlga.l oniy after the expiration or termination of his right to hold possession of the land or building by virtue of a contract, as the possE:Ssion of a tenant after termination of the contract of lease for non-payment of the rents due or violation ~f the terms of said contra.et. In the (.resent case, according to the above quoted complaint, the peu- 2. tioner took possession of the part of the building leased, not against the will or without the consent, hut with the express con--ient of court below for irther proceeding. The wa.y is ldt 01>en to the defendant. to ask for the arrest or stay of execution in the event of an :i.dverse moneta.ry judgment, and for the plaintiff to impugn anew, if necessary, the constitutionality of Executive Orders Nos. 25 and 32 and Republic Act No. 342 ::mdlor their being still in force. TD. ; ID.: ID. - ln Medina v.1 Santos <L-1280, May 20, 1947, 44 Off. Gaz., No. 10, 3811>, it wa.s held that an action for the recovery of a truck with prayer for payment of its value in case the t'ruck was n6l returned, could proceed notwithstanding the moratorium law. The court observed that the indemnity sought was a subsidiary liability and would not come into being unless and until decision rendered against the defenda.nts for such payment. In Moya vs. Barton <L-745, Aug. 27, 1947, 45 Off. Gaz., No. 1,227-), the court said that when the cause of action was in pa1'l covered by the moratorium and in part not, it wa.s not unjust to render judgment for the payment of the entire obligation with the understanding that execution with respect to the amounts that had fallen due before March 10, 1945, would be stayed. In the case of Alejo v. Gomez <I...-1969, May 30, 1949), the court ruled that suit for unlawful detainer and rents in a.rrears was not affected by t he moratorium, the recovery of t he unpaid rentals, it was i;aid, being accessory to the main action. And, lastly, in R<'alty Investments, Inc. ct al vs. Villanueva et al (L.19<:9, Oct. 31, 1949>, the court, citing the above-mentioned cases, decided tha.t the court should go ahead with the t rial of the action on the merits without prejudice to the right of the dcfondant to arrest the exceution should one for pa7ment of money be issued. Jn that case the pie.in. tiff, which had sold to the de!endant a piece of land on installment basis, was demanding payment of t he installments still unpaid <installments whic:t the defendant claimed to have fully settled with the Japanese alien property custodia.n). or, in default, restoration of the ownership and possession of the property. Ir. revoking the lower court's order of dismiss;;.], it fa point. , ed out that De Venecia vs. General <L.894, 44 Off. Ga.z., 4912) and Ma-ao Sugar Central Co. V. Barrios et al <L1539, 45 Off. Gaz., 2t44> were distinguisha!Jk from Moya vs. Barton, Medinn. vs. Santos, and Alejo v. Gomez in thn.~ the suits in the first two named cases had for their sole object the enforcement d a monetary obligation. The casa at bar falls withiu the relaxed rule of the Supren1e Court's late decisions. the owner or possessor thereof by the virtue of the contract of lease entered between them, and therefore his possession of the premises leased was legal or lawful from the beginning, and it became illegal only after the termination of his right to continue in possessicn of said premises for having failf'd to pay the rents or other c<mditions of the contract of lease. The fact that the petition('r cbtained the consent of the lessor to enter into said contract and b!ke possession of the premises leased through raise misrepresentation as :l.ileged in the complaint, did not make petitioner's possession illegal from the beginning :.i.nd the action instituted against him one of forcible entry. The stealth, strategy or fraud employed to deprive a pers<m of his possession of a land or building under Section 1 of Rule 72, are the means used by the intntder to take possession of said land or building, without the consent or knowledge of the person in possession thereof. Such as, for instance, entering into the possession of a. house taking advantage of the absence therefrom of its possessor or inhabitant, or after the latter has gone out of it because he was deceived 01· told by thl! intruder to go to another place at the request of one of his fi-iend 01· relative. Besides, in an action of forcible entry, no previous demand to vacate is required by law before the filing of the action, while Section 2 of Rule 72 it requires t.hat in an action of unlaw!ul de.. tainer by a landlord against his tenant, auch d('mand is required, and compliance wit.h this tj('mand or condition is alleged in the last quoted paragraph o! the complaint. In Yiew of the foregoing, the writ of preliminary injunction was issued by the respondent Judg-e in ex.::ess of the court's jurisdiction, and therefore it is set aside with ~osts against the respondent Consolidated Investments Bldg. Inc. Paras, Pablo, Bengzon., Padilla, Tuason; Montemayor; Jugo and Bautista Angelo. - J.J. concur VI Entest Ber9, Plaintiff and Awellant vs. Valentin Teus, Defendant and Appellee, G. R. No. L-2987, February 20, 1951. 1. OBLIGATION AND CONTRACTS; MORATORIUM; RECEIVERSHIP. - Plaintiff presented a petition to put the premises and chattel in litigation in the ha.nds of a receiver, petition which appears o( urgent character. De!endant opposed the motion for receivership aud moved for dismissal of the complaint on the grounds that plaintiff's cause of action had not accrued by reason of Executive Orders Nos. 25 and 32, on moratorium. The lower court opines tha.t Executive Order Nos. 25 and 32 were still in force unaffected by Uepublic Act No. 342 as to debts contracted during the Japanesl: occuupation. Plaintiff contends that those executive orders had passed c.ut of existence by the disappearance of the emergency contemplated thereby. HELD: Decision on this question can be deferred. For the purpose of this case, Executive Orders Nos. 25 and 32 are assumed to be still in full force a.nd effect. This is done to pave the way for and hasten action on the petition to put the premises and chattels involved in the hands of a receiver. The constitutionality of Execntive Orders Nos. 25 and 32 and Republic Act No. 342 and allied issues can wait. These issues a.re delicate and would require prolonged study and deliberation. Besides, there 1s a pending bill in Congress repealing those executive orders and law. The fact that the appointment of a receiver is an ancillary remedy is one powerful reason why the case should be dismissed. Case is remanded to the Alva J. Hill for appellant. J. Pere;; CC1'7'denas for appellee. DECISION TUASON, J.: This appeal is from an order of the Court of First Instance of Ilocos Sur dismissing the abo\!e-entitled action by rea.son of Executive Order· No. 25, as amended by Executive Order 32, on moratorium. Ernest Berg brought the action against Valentin Teus to foreclose a real estate and chattel mortgage executed in November, 1944, to secure six promissory notes of the aggregate value of !'80,000 and pa.yable on demand two years after declaration of armistice between the United States and Japan. An amended or supplementary complaint was later admitt<'.'d against the defendant's objection. The complaints rt.'Cited that by stipulation of the parties, the mort,q-a.ger had undertaken, among other things, to insure and pay the taxes on the mortgaged properties; not to alienate, sell, lease, <'ncumber or in any manner diEpose thereof; and to keep and maintain the said properties in good order and repair; but that, it was a.lleged, he <defendant.) had failed to keep taxes fully paid; had made material :.<Iterations on t-he premises, :md l1ad sold and conveyed them to Central Azocarera del Norte. It further alleged that the mortgagor had ag~eed that i:hould he fail to perform any of his obligati!lns as stipulated, .. the mortgage shall be deemed to be automatically foreclo&i;:d this mortgage either extrajudici:.lly, even after the death of the Mortgago:r, in pursua.nce of the provisions of Act No. 3135, as amended;" and 011 the basis of this agreement it was prayed that the mortgage is declared auto132 THE LAWYERS JOURNAL March 31, 1954 matically foreclosed and the pla.intiff ent itled to immediate possession of the properties in question. In a separate motion Berg's attorney also asked for the appointment. of a receiver. Counsel for the defendant having moved for the dismissal of the complaint on the grounds that plai11tiff's cause of action had not accrued by reason of the ex':lcutive order he1·einbefore cited, and having opposed the motion for receiver£hip, Judg.? Zoilo Hilario t'ntered an order holding that as to the collection of the six notes the suit had been prematurely brou.ght, but setting the cause for trial on the merits bEcause, according to His Honor, the reasons alleged in the motion to dismiss were not "indubitable" with reference to the Appointment of a receiver sought by the plaintiff. As we understand this order, its result was that the rnorntorium ought not to interfere with the plair.tiff's motion for appointment of receiver. However that may be, the plaintiff subsequently filed a "complete compla.int" in which the original complaint and the amended or supplerr.entary complaint were consolidated. This "complete complaint", which was admitted without objection, apparently was !i'Upposed to have restored the cast: to its original status. Consequently t.he attorney for the defendant !tied a new motion to dismiss; and Judge Luis Ortega, who ha.d replaced Judge Hilario, ignoring the latter's order entered the order now on appeal by which the entir~ action was quashed on the theory ·advanced in the motion to dismiss. The new order was silent on both the application for receivership and the prayer that the plaintiff be edjudged e.uthorized by the terms of the mortgage to foreclose it extrajudicially and seize the proyerties. . Judge Ortega opined that Executive Orders Nos. 25 and 32 were still in force unaffE:cted by Republic Act No. 342 as to debts contracted during the J a p::i.nese ?Ccupation. Plaintiff contended that those executive order11 had passed out of existence by the disappea.rance of the emergency contemplated thereby, 2nd the contention is reiterated in fhis instance. But from the view we take of the case, decision on this question can be deferred. For the purpose of the present dec:ision, we will assume that Executive Orders Nos. 25 and 32 are still in full force and effect. Thia we do to pave the way for and hasten action on the petition to put the premises a:id chattt'ls involved in the hands of a receiver, petition which appears of urgent character. The constitutionality of Executive Orders Nos. 25 and :\2 and Republic Act No. 342 ::i.nd allied issues can wait. These i!lsues are delicate ::i.nd would r equire prolonged study and deliberation. Besides, there is a pending bill in Congress repealing those executive orders and Jaw. In Ricardo Medina v. Amb!09fo Santos, G. R. No. 1-1280, May 26, 1947, 44, No. 10 Off. Gaz., 3811, it was held that an action for the recovery of a truck with prayer for payment of its value in case the truck was not returned could p1 ·oceed notwithstanding the moratorium law. The Court observed that the indemnity sought was a subsidiary 1iability and would not come into being unless and until decision was rendered against the defendants for such payment. In Moya v. Barton, G. R No. L-745, August 27, 1947, 45, No. 1. Off. Gaz., 237, the Court said tha.t when the cause of action was in part covered by the moratorium and in part not, it was n<rt unjust to render judgment for the payment of the entire obligation "'·ith the understanding that execution with respect to the amounts that had fallen due before March 10, 1945, would be stayed. In the case of Alejo v. Gomez, G. R No. L-1969, Ma.y 30, 1949, the Court ruled that suit for unlawful detainer and rents in arrears was not dfected by the moratorium, the recovery of the unpaid rentals, it was said, being accessory to the main action. And, lastly, in Realty Investments, Inc. et aL v. Mariano Villanueva et al., G. R. No. L-1!.149, October 31, 1949, the Court citing the above-mentie>ned c~ses decided that the court should go ahead with the trial of the action on the merits without prejudict' to the right of th~ defendant to arrest the EXE'cution should one for payment of money be issued. In that case the plaintiff, which had sold to the defendant a piece of land on installments basis, was demanding payment of the i1;stallmentt still unpaid, (installment which the defendant claimed to have fully settled with th1. Japanese alien property custodianl or, in default, restoration of the ownenihip and possession of the property. In revoking the lower court's order of dismissal, we pointed out that De Venecia v. General, G. R. No. L-894, 44 Off. Gaz., 4912, and Mao Sugar Central Co. v. Conrado Barrios et al., G. R. No. L-01539, 45 Off. Gaz., 2444, were distinguishable from Moya v. Barton, Medina v. Santos, and Alejo v. Gomez, in that the suits in the first Ito named cases had for their sole object the enforcement of a monetary obligation. The case at bar falls within the relaxed rule of this Court's later decisions. The alleged violation of the conditions of the mortgage contract, if true, mak:! it , necessary if not imperative, for the protection of the interest of the plaintiff, that the mortgaged properties be placed in the custody of the court. The fact that the appointment of a receiver, as the defendant emphasi?.es, is an ancillary remedy is precisely one powerful reason why the ea.se should not be dismissed. Because receivership is an auxiliary remedy dismissal of the main action would eliminate the only basis for the appointment of receiver and thus completely bar the door to any relief from mischiefs. UndE:r the circumstances of lhe case, the least that should have been done, if that were feasible as a matter of procedure, was to adopt the steps which Jutige Hilario had proposed to do. Judge Hilario evidentiy saw the grave injustice to the plaintiff and the irreparable injury to which his rights would be exposed if an indefinite suspension of the entire proceeding were dP.Crced.. In suspending the 1-ight of creditor to enforce his right the President and Congress he.cl no idea of depriving him of all means of preventing the tle!=truction or alienation of the ~ecurity for the debts, destruction which would virtually write off, in some cases, tht> whole credit. If that were the intention, it is doubtful if the orders nnd the law inYoked could stand the test of constitutionalit)''. The orde1· appealed from will Lherefore be reversed and the caSP. remandP.d to the court below for further proceeding according to the lcnor of this de<:ision, We leave the way open to the defe~d::i.nt to e.sk for the a rrest or stay of execution in t he event of an adverse monetary judgment, and for the plaintiff to impugn anew, if nee~ sary, the constitutionality of Executive Orders Nos. 25 and 32 and ICepublic Act No. 342 and/or their being still in force. Cqsts of this appeal will be charged against the appellee. Mora.n, Paras, Feria, Pabln, Bengzon; Padilla; Montemfl.yor; Rcues, J1igo, and Bautista Angelo - J.J. concur. VII Eulogio R. Lerum et al., Peti~ioners-appellants v, The People of the Philippines, Necessary Party, vs. Roman A. Cruz et al., Respon. dcnts-.-4.ppellees, G. R. No. 2'183, N1Jvember 29, 1950. DEC.LARA.TORY RELIEF; IN A CRIMIN AL CASE; PARTIES; IN TEREST AND PERSONALTTY OF PRIVATE PROSECUTOR. - In a petition for declaratory relier filed to test the suificiency or probative value o! certain testimony given in a criminal case, the interested party is the people of the Philippines. In such case, the city attorney should be the one to ask for the declaratory relief i! it is desired to have said matter tested in court a nd if a.nd when this stt'p is feasible under the law. Inasmuch as all criminal actions can only be prosecuted under the direc:tion and control o! the fiscal and for that matter he is t.he only official who C3n represent tht' peoplt' of the Philippines, private prosecutors, who can only intervene subject to the control of tho fisca.I or city attorney, are not the proper parties to file the aforesaid petition for declaratory relief. Antonio Barredo, Eulogio R. Lerum and G. Viola Fernatulo for appellants. No appearance for appellees. DE C I S ION BAUTISTA ANGELO, J.: This is an appeal from an order of the Court of First Instance of Rizal (Quezon City) dismissing the petition for declaratory relief filed by attorneys Eulogio R. Lerum and G. Viola. Fernando as private prosecutors in behalf of the People o! the Philippines for the purpose of testing the sufficiency and probative value of the testimony of former Judge Roman A. Cruz to prove a decree of divorce issued by hitr.. 'while a judge of First Instance of Manila sometime in 1944. It appears that Do case for bigamy was filed against Nello March 31, 1954 THE LA WYERS JOURNAL 183 Y. Roa in the Court of Instance of Rizal <Case No. 962>. In the course of the trial held in June 16 and 30; 1948, former Judge Roman A. Crui was placed on the witness stand by the defendant to prove that his wife Elena Muiioz has 11lrea.dy secured a decree of divorce against him in July 1944. The prosecution objected to this move of the defendant, but the objection was overruled, and so the prosecution filed a petjtion for a writ of prohibition with this Court praying that the ~spondent judge be enjoined from allowing the defenda.nt to prove lhe alleged decree of divorce by oral evidence <G. R. No. L-2340). The petition was dismissed for lack of merit. Judge Roman Cruz then was allowed to testify, and his testimony reads as follows: "SR GUANLAO: P ConO«l Ud. personalmente a Elena Muiioz! R 1Si, seiior. P Conoce U d. Personalmente a Nello Roa? x x x P Porque dice Ud. que conoce a Elena Muiioz! R La conozco porque fue demandante en una causa de di~ vorcio que se habia ventilado en una de las salas que yo presidia entonces en el J uzgado de Primera Instancia de Manila durante mi incumbencia en 1944. SR. VIOLA FERNANDO: Pido Su Seiioria el descarte de esta parte del testimonio del testigo por ser incompetente y, adernas, es una conclusion. J UZGADO: El testigo esta declarando sobre hechos de su conocimiento propio. SR. VIOLA FERNANDO: Es una conclusion. JUZGADO: El testimonio del Juez Cruz no puede considerarse como una prueba. secundaria, aino mas bien que vendria a ser como una prueba primaria o principal, cuyo expediente surgio a rais de sus actuaciones oficiales como Juu <Steno •. Notes, Transcript, pp. 4-7>. SR. GUANLAO: P De su propio conocimiento y segUn su mejor recuerdo, se tramito 11nte Ud. la causa de referenda! JUZGADO: Se la pregunta si recuerda. x x x x x x J UZGADO: Eso incumbe al Juzgado. Puede contestar. R Si, seiior. <Steno. Transcript Notes, p. 6.) J UZGADO: Puede contestar. TESTIGO: Si, seiior , Se ha tramitado ese asunto de divorcio durante mi incumbencia en 1944, cuando presidia entoncea una de las salas de J uzgado de Primera Instancia de Manila. P Y cual fue el resultado de eae aaunto de divorcio si R p . R Ud. recuerda? Se concedio el divorcio solicitado por la entoncea demandante. Sabe Ud. se el demandado apelo de eaa decision? No podia ha.her apelado porque era un divorcio concedido mediante rebeldia. P Pero Ud. no esta seguro si el demandado apelo o no! R Que yo sepa, ni sequiera peticion de reconsideracion se presento, ni que se hay dado curso a alguna apelacion. <Steno. Notes, Transcript, pp. 13-H, hereto attached as Exhibit "A">. 41 (Copied from G.R. No. L-2783, pp. 2325, record on appeall." The prosecution moved for the striking out of the above testimony of Judge Cruz, and when t he motion was denied, the prosecution again brought the case to this Court through certiorari <G. R. No. L-2483), and again the petition was denied on the ground that the respondent judge had power and authority to rule on the question ra..ised therein. After the steps taken by the prosecution to foil the attempt to prove the a lleged decree nf divorce by oral evidence proved futile, the private prosecution filed the present petition for declaratory relief. It also appears that the petition was at first filed by City Attorney J ose F. Fernan<,lez, and by attorneys Eulogic R. Le.. rum and G. Viola Fernando a.s pri,·ate prosecutors in the bigamy case No. 962, but later, upon motion filed by City Attorney F ernandez, his name was stricken out from the pleadings, and so an amended petition was filed wherein attorneys ~rum and Viola Fernando appeared as the only petitioners representing the Pt.'<>ple of . the Philippines. It finally appears that attorneys ~ rum aud Viola Fernando made an attempt to have the Solicitor General appear e.s counsel, but this attempt was again ruled out on the ground that under the law the Solicitor General can only be required to intervene when the validity of a statute is involved While the petitioners have nssigned in their brief seven (7) errors which are alleged to have been committed by the lower court, we believe that .the issues raised can be boiled down into two, to wit, Cl) whether petitioners ha.ve the necessary personality and interest to file the petition under consideration; and <2> whe.. ther the ~ubject matter of the petition is among those that can be determined by way of declaratory relief under Rule 66 of the Rules of Court. 1. The incident giving rise to the petition for declaratory relief al'ose in a criminal case for bigamy instituted aga.inst one Nello Y. Roa. The informatiou was filt.d by City Attorney J ose F. Fernandez as required by the Rules of Court, and attorneys Eulogio R. Lcrun1 and G. Viola Fernando appeared as private prosecutors in behalf of the offt1;ded party. The incident concerns tho prr.sentation of the oral testimony of former Judge Roman A. Cruz to prove a decree of divorce issued by him aa judge of First Instance of Manila in an effort to bring about the acquitta.1 of the defendant. The interested party, therefore, in testing the sufficiency or probative value of the aforesaid testimony is t.he People of the Philippines. In fact it is the City Attorney who filed the two certiorari cases with this court in a vain attempt to get a ruling on the matter. This being the case, the City Attorney should be the one to ask for the declaratory relief if it is desired to have sa.id matter tested in court and if and when this step is feasible under the law. It appears, however, that City Attorney Jose F. 'Fernandez has refused to join the petitioners in filin£ the herein petition f'lr declaratory relief as shown by his attitude in asking that his name be striclcen out from the pleadings. This attitude is indica.tive that the government has no interest in prosecuting the petition, and inaa.. much as all cl'iminal actions can only be prosecuted under the d11'ection and control of the fiscnl and for that matter he is the only official who can represent the People of the Philippines <Sec. 4, Rule 106, of the Rules of Court: Herrero et. al. v. Dia.z, 42 Off. Gaz., 1166), it is .evident that the petitioners herein, who as private prosecutors can only intervene subject to the control (Jf the City Attorney <Herrero et al. v. Diaz, id.>, are not the proper parties to file the petition under consideration. 2. Granting for the sake of argument that the petitioners herein can be considered as parties in interest within the mea.ning c.f the statute, the next question to determine is whether the subject matter which they want to be testl..'d is among those mentioned in 11ection 1, rule 66, of the Rules of Court. Under this r ule, only a person who is interested "under a deed, will, contract or other written instrument, and whose rights are affected by a statute or ordinance, may brini::: an action to determine any question of construction or validity arising under the instrument or statute and for a declai-ation of his rights or duties thereunder." This means that the subject matter must refer to a. deed, will, cont(d.ct or other written instrument, 134 THE LAWYERS JOURNAL March 31, 1954 or to a statute or ordinance, .to warrant declaratory relief. Any other matter not mentioned therei11 is deemed excluded. This is under the principle of e:tpTessio unius e.st c:ccltLlf~io 1JUeriu11. Now, does the subject matter under cor.sideration comE' within the import of the rme 1 The answer cannot but be in the negative, 1or it docs not refet' to any wl'itten instrument, st .. tute or ordinance. It merely refers to the su1ficicncy or probat1ve vs.J.ue of an oral evidence concerning a decree of divorce issued by a former judge, which the court trying the bigamy cnse has ample pow<!r .and authority to pass upon. This is not the OPportune moment to look into the correctness of the ruling of the court in said bigamy case allowing the presentation of oral evidence to pro•;e a decree o( divorce under the circumstances at present obtaining, for the bigamy case is still pending determination. This will be determined in due time when properly presented before this Court. For the purposes of this appeal, it suffices for this Court to declare that the subject matter of the petition dOC!s not warrant the granting of declaratory relief within the meaning of said Rule 66. Wherefore, the order appealed from 1s Affirmed, without pronouncement as to costs. Moron, Paras, Feria, Pablo; Bengzrm; Padilla, Tuason: Montemayor, Reyes, and Jugo. - J.J. concur. VIII Lucila Ornedo, Petitioner vs. Judge Eusebio F. Ramos et aL, Res. poncknt G. R. No. L-2898, December 23, 1950. CERTIORARI; CERTIORARI IS PREDICATED ON LOWER COURT'S POSITIVE ACTION BUT NOT A REMEDY FOR INACTION. - By its nature, certiorari is predicated on a positive or affirmative action that is injurious to the interests of the complainant. It is not a remedy for a lower court's inaction irrespective or the re;asons given therefor. F. /Jfilambiling for petitioner. Panfilo M. Manguera for respondents Mabute ans! Magna Labaguis. DECISION TUASON, J.: It appears tli.at Epifania Mabute applied in the Court of l"rist Instance of Marinduquc for letters of administration of the intestate estate of Severina Mistal, application which was docketed as Civil Case No. 656. Shortly thereafter Jacinta Ornedo filed a simjlar ~pplicatfon with reference to the estate of Juan Ornedo, Severina Mistal's husband who died after her. The latter application was docketed as Civil Case No. 659. Lucila Ornedo, Juan Ornl:do's illegitimate daughter whose mother he married after his first wife's death, and Natalia Mus.. nit, Lucila's mother, opposed both applications. It seems that the basis of ... the opposition, or the principal basis, was that the title to the properties of both decedents had already vested in L:...,Ja Ornedo by donation from her father. The two .iipplications, by agref'.ment of the parties, were heard jointly before Judge Mariano Melendres on July 9, 1946. On July 24, before the applications were decided, six cousins of Severina MiDtal filed a complaint in intervention which wns admitted. The intervenors claimed !l share in Severina Mistal's estate by agreement with Juan Ornedo as Severina's surviving es,pou~~dge Melendres having been assigned to a110ther judir;icl district before he could write his decision, and as the stenographic notes taken at the trial had been lost, the two applications for · letters of administration and the intervention were :igain set down for hearing and, a.lso by agreement of the parties, were consolidated for trial before Judge Enriquez who had succeeded Judge Melendres. In the second trial as well as in the first the owner. Ghip to the properties involved was submitted and in Judge En·riquez's decision adjudicated in the manner set forth in the next following paragraph. On July 31 Judge Enriquez dismissed both applications for letters of administrs.tion and the complaint in intervention. The reasons were; (1) all the property of Severina Mistal had passed to her surviving spouse, Juan Ornedo, by operation of law, Mistal having no legal heirs; <2> Juan Ornedo in life had donated his property to his daughter Lucila; and <3) the deed of pa.rti. t.ion between Juan Ornedo and the intervenors by vil"tue of which tho latter were assigned a share in Severina Mistal's estate, was, in the opinion of the court. VC'id and of nC' effect. The two applicants and the intervenors filed motions for reconsideration on ihe ground that "the decision is against the law." As J udge Enriquez this time had been detailed to unother province, like Judge Melendres before him, it fell upon the Jot of Judge Eusebio F. Ramos, .who had taken Judge Enriquez' s place, to act on the said motions ror reconsideration. Judge Ramos' decision or order rende1·ed on October 15 set aside J udge Enriquez's order or decision on the ground that "it Goes not appear that the origin&! hea.ring of the petitiou(s) in said cases have been duly published as required by the Rules of Court" so that the court, Judge Harnos opined, had acquired nu jurisdiction. But Judge Ramos did not stop here. With apparent inconsistency, he decreed the definite dismissal of Case No. 656 and of the intervention and held <U tha.t Natalia Musnit, J uan Ornedo's widow and Lucila Ornedo's co-opponent, had no interest in her deccascd husband's estate "at least <except> as usufructuary over a certain (portion> of the property," and <2> that "when Severina Mistal died her heir was her husband Juan Qr. nedo to t he exclusion of her cousins," the intervenors. In other words, although as he said, the C'Jurt had acquired no jurisdiction, His Honor went into the merit-a of the controversy. With regard to case No. 659, th!' set-a.side order was in keep. ing with the theory of lack of jurisdiction. With reference to this case, the order was that "the hearing of the petition x x x be published as required by la.w, the- dat.e of the hearing to be set at next calendar of this Court." The present petition for certiorari was brought by Lucila Or. nedo without he1· mother, her co-opponent to the application for letters of administration, a nd makes Judge Ramos, Jacinta Or. nedo :ind the intervenors responi:lents. For answer, the respondents queation, among other thingi;, the a.vailability of certiorari tC' review Judge Ramos' order, it being contended that the res-. pondent Judge did not act outside or in excess of his jurisdiction and that there is plain, speedy and adequate remedy by appeal'. The issues and the arguments have been cnmplicatert anJ confused by the inclusion in the proceedings below and in the V&Jious orders, of matters not quite gennanc to t he right of the applicants to appointments as administratrixes, such as the conflicting claims of ownership tn the properties. The order complained of presents two i.spects which should be taken up separatP.ly for clarity's sake. And before we proceed, it is well to ta.kc note that Judge Ramos' order is not assailed jn so far as it refers to case No. 656 which, for that reason, will be left out of the following discussion. · As has been seen, Judge Ramos did not render a decision on the merits o( the application in Case No. 659; he merely directed that the application be published and he postponed the hearing thereof to th(' next calendar of the court after such publicatiOn should have been made, It is at once obvious that this order is not a cause for complaint on the part of Lucila Ornedo. The postponement of the hearing and the publicatioii of the applica.tion are · not the concern of the opponent, except perhaps for the delay they would en. tail. The cost of publication is to be defrayed by the applicant, and the opponent is in possession of the questioned prop~rty to the exclusion of all others and is not being bothered in the enjoyment of its produce. In this aspect of the case the petitioner clearly has no ca.use of action. The true reason, not plainly apparent on the surface of the pleadings and the memoranda, for the seen'ling paradox of the applicant's acquiescence in or delense of the respondent Judge's order and for the opponent's vigorous cxc.eption thereto is, that in setting a.side Judge Enriquez's order, Judge Ramos destroyed an advantage Lucila Ornedo had already achieved. Judge En. riquez's order not only dismissed the application for letters of administration but made a definite declaration that Lucila. Or. nedo was the absolute owner of the properties sought to be placed under judicial administration. By this award the opponent had, March 31, 1954 THE LAWYERS JOURNAL l3S in a manner of speaking, won the first and very important round of the contest which Judge Ramos' order set at naught. It is said, with good reason, apropos of this feature of the case that tire respondent Judge was wrong in saying that the application had not been published. Lucila. Ornedo's counsel points out that the r~uired publication was made in La Nueva Era~ a newspaper of general circulation in the province of Marinduque, before the first trial, and that copies of t.he periodical carrying the notice plus supporting testimonial evidence were introduced at tha.t trial held by Judge Melendres. Lucila Ornedo's counsel also calls attention, with support of precedents and authorities, to the fact that with the consent or acquiescence of the parties concerned, title to property involved in a. testate or intestate proceeding may be litigated and adjuClged by the proba.te court. Lucila Ornedo ti.id not do so but she could also cite the fact that the movants' motions for reconsideration of Judge Enriqucz's order did not impugn the sufficiency ot the publication, nor did they attack the court's jurisdiction to give judgment on the conflicting claims of o~ership between the parties. Even so, certiorari does not lie. Relief must be sought by other mode of procedure. The error, if error was committed by Judge Ramos, was one of omission and not commission. To set aside Judge Enriquez's order was within Judge Ra.mos' jurisrliction, in much the same manne:- and to the same extent that Judge Enriquez, if he had not been replaced, would have authority to change, modify or reverse his decision or order. · Judge Ramos' order amounts &imply to a refusal, notwith .. i:;tanding the parties' 3.gTecmcnt, to determine the validity of the alleged donation executed by the now deceased Ornedo in favor of his dau~hter, partly because, according to the Judge, the ap. plication for letters of administration had not been publisht:d, and principally because, in his judgment, this ma.tter should be tried in a separate, ordinary action. In the last analysis, the petitioner's contentiun could only be that in the present state of the proceedings in the court below Judge Ramos should decide' the motions for reconsideration and affirm Jud"ge Enriquez'a order without requiring· a new publication of1 the application for let.. ters of administration. By its nature, certiorari is predicated on a positive O!' affirmative action that is injurious to the interests of the complain·ant. It is net a remedy for a lower court's inaction, irrespective c.f the reasons gi vcn therefor, Upon the foregoing considerations, the petition for certiorari is dismissed without special finding as to costs. Momn, Feria, Pa/:llo, Bt:'ll9:.:in, Padillo, Montemayor, Reyes, Jugo, and Bautista Angelo, concur. Mr. Justice P<lras voted for di:>mii<:sal. IX Paz ~; ji.qui'on9, Plaintiff.Appellee vs. Go Tecson et al., Defendant. Appet 7its, G. R. Noi;. L.3430. 3431, May 23, 1951. 1. DESCENT & DISTRIBUTION; MORTGAGES; ONLY ACTUAL FILING OF CLAIM IN INTESTATE OR PROCEEDINGS CAN CONSTITUTE WAIVER OF MORTGAGE LIEN. - In order that a mortgage creditor may be said to have waived his mortgage lien again:>t an estate, he must appe<!.r to have formally filed his 'claim in the tRstate or intestate proceeding. The fact that the administrator has merely made an overture to pay the mortgage debt and the mortgagees Cor one of them> have sig~ nified willingness to accept. payment., is not sufficient to constitute a waiver of th~ mortgage lien, where there is nothing to show that the offer of payment has bt>cn preceded by the formal filing of a claim. Without t hat formality, the mortgagees cannot be deemed to have waived their mortgage so as to be estopped from bringing a foreclosure suit. 2.PLEADING & PRACTICE; ANSWER; MATTER NOT SET UP AS DEFENSE IN ANSWER OR MOTION TO DISMISS CAN NOT BE RELIED UPON AS A GROUND ON APPEAL. - The validity or t.he constitutionality of Republic Act 342 c2.11nvt be mo.de an issue on appeal, where moratorium has not been invoked as a defense Or as a ground for a motion to dismiss. Bienvenfr[u A. Tan, Jr. for appellant. J . Perez Cardenas for appellees. D -ECI SION REYES, J.: On October 1, 1927, Paulino P. Gocheco mortgaged to Paz E. Siguion a piece 'Jf registered real property in the City of Manila to secu1·e a debt of 1"30,000.00. Some ten years later, he constituted a second mortgage on t he sa.me p:·operty in fiwor of Paz E. Sigt1ion's son, Alberto Maximo Torres, to secure a debt of !'20,000. Both mortgag,~s were duly registered. Gocheco died in 1943 without having discharged either mortgage. The following year, proceedings for the settlement of his estate were instituted in the Court of First Instance of Manila, and Go Tecson was appointed judicial administrator. On Februa.ry 3, 1949, the present actions were filed against the administrator Go Tecson for the foreclosure of the two n1orl:gages, and judgment having been rendered against him in both, he has elevated t.hc cas"es here by way of appeal, contending that the lower court erred in not holding (1) that he could no longer be sued a~ administrator because the 2..dministration proceedings had ail'eady been dosed; ~2> th:it the matte1· in controversy was already re~ jttdicata; l3) that plaintiffs' claim had already been paid; and <4> that Republic Act No. 342 was unconstitutional and void. The first error assigned deserves no serious consideraticn, it appearing from the certificate of 1.hc Clerk of the Court of First Instance c.f Manila CExh. " B") tha.t the order for the diEtr1bution of the ei;t-ate among the heirs has not as yet been complied with. In fact, counsel for appellant admits in his brief that, technically speaking, the administration proceedings arc still pending. As to the second assignment of error, the record does not disclose facts sufficient to support th~ claim of res judicata. The record of the administration proceedings, if already r econstituted, has not been presented, and nowhere rioes it appear that a claim for the mortgage indebteduess was formally filed in the administration proceedings and that it wa2 there litigated and judicially determined. There is, for sure an alleged order read at the hearing, which says: ORDER "A written constancia having been forwardP.d to this Court by registered mail b)' Paz E. Siguion, whe1·ein she ma.de known her willingness to accept the payment for the mortgage obliga.. tion contracted by the d1..-ceased, Paulino P. Gochocho within ten (10) days after receipt of the written notice from the administrator r.ignifying his intention to pay, the Court hereby advises t he herein administrator to ta.kc the necessary steps to make payment to said P&z E. Siguion. S'l ordered. "Manila, Philippines September 7, l!J44 "<SGD.> ROMAN A. CRUZ Judge' This order conveys the information that the administrator has made an overture to pay the mortgage debt and the mortgagees Cor one o( them) have signified willingness to accept l>ayment. But there is nothing in the order to show that the offer of payment has been preceded by the formal filing of a claim, Without that formality, the mortgagees cannot be deemed to ha.ve waived their mortgage so as to be estopped from bringing a foreclosure suit. "In order that the mortgage creditor may be said to have waived hi;; mortgage lien, he must appear to have filed formally his claim in the test.etc or intestate proceeding. The fact that he requested the committee on claims <now abolished) to take the necessary measures to have h0 is claim p;1id at its ma.. turity, does not imply that he has presented such claim as to be estopped from foreclosing his mortgage. S0:, also, the mere fa.ct of bringing his credit to thC attention of the committee on claim for the purpose of having it included among the debts and taken into account in case the estate should be 136 THE LAWYERS JOURNAL March 31, 1954 sold, but wiih a statement at the same time that said clain1 is secured by a mortgage duly registered, is not equivalent to filing the cla.im and docs not, therefore, constitute a waiver of said mortgage." <II Moran, Comments on the Rules of Court 3rd ed. p. 406). The payment alleged in the third assignment of error is not evidenced by any receipt, and there is nothing to support it except the bare declaration of the administrator's former attorney, Judge Bienvenido Tan, to the effect that, threatened with contempt proceedings for refusing to receive payment, the appellee Paz E. Siguion came to ~e him in his office and accepled the payment tendered by him. But the testimony is denied by this appellee, and we note that Judge Tan has merely inferred from what she told him on that occasion that she was then accepting the money tendered by him in payment for the debt, an inference not warranted by appellee's actual words, as may be seen from following testimony of Judge Tan: "Q Meaning to say that you personally paid her the mon'2!y? "A After the motion <to cite for contempt) was presented Mrs. Paz Siguion went to my office and told me that there was no need of presenting the molion rind for me to ask the court that she be declared in contempt since she was willing to accept payment. -And I told her that if she was willing to accept payment I have the money in my office. I took the money from a 'bayong' ~md delivered it to her but she said : 'Well, I am sorry I c&nnot carry this bag of money with me because it is very dangerous and besides I am going to the province. Will you please keep it yet in your office u:r.til I call for it?' That is what I meant that she accepted the payment. "Q And, the money, Judge Tan, remained with you? "A Yes, it remained with me. ''Q Until when? "A Until now. It is still in the office." Far from exp,ressing actual a.ceptance of payment and contequent significntion '.>f intentbn to have the money k~pt for her by Judge Tan as her depositary despite the fact that fie was attorney for the adverse party, appellee's words should rather be construed as a refusal on her part to receive payment, an intf!rpretation which would be consistept with her previous attitude in repeatedly declining to receive payment, as denounced in Judge Tan's motion for contempt, and also in consonance with What may be expected to be the natural reaction of any creditor to a tender of payment in the depreciated currency of those days <October, 19441. Indeed, had the money really been accepted, consirlering the amount involved, a receipt would surely have been required for the same; and not only a receipt, but also a release or discharge of mortgage. No such document, however, has been signed by Paz E. Siguion, it does not even appear that the money was counted. In the circumstances, we have no hesitation in holding that the lower court did not err in not finding that the mortgage debt has already been paid. As to the fourth and last assignment of error, the record does not show that appellant has in a definite and suitable manner invoked moratorium in the court below. That defense was neither pleaded in the answer nor made a ground for a motion to dismiss. On the other hand, the answer admits the allegation of the complaint that the moratorium on prewar debts has already been lifted by Republic Act No. 342 subject to the exception or condition therein specified in favor of debtors who have filed their claim with the · War Damage Commission, to which class the estate represented by appellant does not belong since it has not filed any war damage claim. All this reveals lack of ir.tention to resort to the defense of moratorium, espedaly when considered in connection with the allegation in the answer that despite defendant's repeated attempts to pay the debt, plaintiffs have i·efused to accept payment. It is true that at the conclusion of the trial appellant's counsel in open court asked for leave to amend his answer "so as to allege therein," to use his own language, "that the moratorium is unconstitutional." By this counsel probably meant to challenge the constitutionality of Republic Act No. 342. But the petition to amend was withdrawn when it encountered determined opposition from the adverse party, and in any event the validity of that Act cannot be made an issue since moratorium has not been invoked as a. defense ground for a motion to dismiss. In view of the foregoing, and without passing on the constitutionality of Republic Act No. 342 because it is not a necessary issue in the case, the decision appealed from 'is affinn~d, with costs against the appellant. Paras, Fr.·ria, Bengzon, Padilla Tttason~ Montemayor, Jugo and Angelf'. - J.J. concur Pablo, J., tvok no part. x Hernandez et al., Petitioners vs. Emilio Peiia et al., Respondents, G.R. o. L-!777, May 19, 1950, F. RCIBLE ENTRY AND DETAINER; DEPOSIT bF RENT URING PENDENCY OF APPEAL; EXTENSION OF TIME NOT ALLOWED. - Section 8 of Rule 72 of the Rules of Court provides that should the defendant fail to make the payment or deposit of the rent during the pendency of the appf':al, tho Court of First Instciice, upon motion of the plaintiff of which the defendant shall have notice, and upon proof of such failure, shall orrlcr the execution of the judgment appealed from. The court has no jurisdiction to allow extensions of time for such payment Leoncio C. Jimenez for petitionerS". Pedro Valdes Liongson for respondents. DECISJON OZAETA, J.: Ines Oliveros, as defendant in an unlawful detainer case pending before the respondent Judge Emilio Pe ii.a on appea.l from the Municipal Court, failed to deposit with the Clerk of Court the rent of P200 corresponding to the month of October, 1948, in accordance with the judgment of the Municipal Court. A motion for the issuance of a writ of execution was Tiled by the petitioners on Novem-' her 23, 1948, which was opposed by the respondent on the ground that her failure to make the deposit was due to the fact that she had instituted in this court a petition for cortiora.ri ~md prohibition <G.R. No. L..2602>, in which she prayed to be relieved of the obligation of making a monthly deposit of P200. Acting upon said motion and the reply thereto, the respondent judge on December 21, 1948, issued the following order: "The Court orders the defendants to deposit in Court the rents corresponding to the months of Oclober and November, .1948, within five days from the receipt of a copy of ";his c.rder, and should they ·fail to do so, it is hereby ordered that the corresponding writ of execution be issued." The above-quoted order, which is the subject of the present petition for certiorari and mandamus, is contrary tu section 8 of Rule 72 and the decisions of this court in various cases. Said rule provides that should the defendant fail to make the payment or deposit of the rent during the pendency of the appeal, "the court of First Instance, _ upon motion of the plaintiff of which the defendant sha.Jl have notice, and upon proof of such failure, shall order the execution of the judgment appealed from . . " This court has repeatedly held that the Court of First Instance has no jurisdiction to allow extensions of time for such payments. <Lapuz vs. Court of First Instance of Pamp:mga, 46 Phil. 77; Arcega vs. Dizon, G.R. No .. L..195, 42 Off. Gaz. 2138 i Meneses vs. Dinglasan, G.R. No. L-2088, Sept. 9, 1948. ) The mere filing by the respondent Ines Oliveros of a. petition for cel'tiorari and prohibtion, praying that she be relieved of the obligation of making the monthly deposit,. did not ipso facto relieve her of such obligation, as the respcndent judge himself impliedly held by requiring her to make the deposit within five days. The order complained of is set aside, and the respondent judge is hereby directed to issue the writ of execution ptayed for by the petitionP.rS, with co1>ts against the respondent Ines Oliveros. Pablo, Bengzon, Tuason, Montemayor, nnd Reyes, - J.J.; concur March 31, 1954 THE LA WYERS JOURNAL 137 Agustina Paro.nete et. al., Petitioners, vs. Hon. Biem;enido Tan, et al., Respondents, G.R. No. L-3791. November ~9, 1950. PROHIBITION; OWNERSHIP OF REAL PROPERTY TN LITIGATION; ORDER REQUIRING ACCOUNTING AND DEPOSIT OF' PROCEEDS OF HARVEST WITH CLERK OF COURT, IMPROPER. - A trial court issuing an order requiring the party in possession of the property whose ownership is in litigation, to to makt- an accounting and to deposit the proceeds of the sale of the harvest with the Clerk of Court acted in excess of its jurisdiction. That order, in effed, m:tde the Clerk of Court a sort of a receiver charged with the duty of re<:eiving the proceeds of sale and the harvest of every year during the pendency of the case with the disadvantage that the Clerk of Cou1·t has not filed any bond to guarantee the faithful discharge of his duties as depositary; and cnnsidcring that in actions involving title to real property, the appointment of a receiver cannot be entertained because Its effcd would be to take the property out of the possession of the defcn<iant, ~xcept in extreme cases when there is clear proof of its necessity to save the plaintiff from grave and irremediable Joss or damage, it is evident that the action of the resoondent judge is unwarranted and unfair to the defendants - Emiliano JU. Ocampo for petitioner$. Jose E. Aforales for respondents Feliz Alcaras, and Fructuosa, Maxima and Norbcrta, all surnamed Vasquez. DECISION BAUTISTA ANGELO, J.; This is a pelition for a writ of prohibition wherein petitioner seeks to enjoin the respondent judge from enforcing his order of March 4, 1950, on the ground that the same was isa:ucd in excess of his jurisdiction. On January 16, 1950, Felix Alcaras, Frucluosa Vasquez, Maxima Vasquez and Norberfa Vasquez filed a case in the Court of First Instance of Rizal for the recovery of five (5) p~rcels of land against Ab>ustina Paranete and si:x other codefendants. (Civil Case No. 1020). On January 28, 1950, plaintiffs filed a petition fo'r a writ of preliminary injunction for the purpose o( ousting the de. fendants from the· lands in litigation and of having themselves placed in possession thereof. The petition was heard ex parte, and <i~ a result the respondent judge issued the writ of injunctio~ requested. On February 28, 1950, the defendants moved for the recC1nsideratiOn of the order granting the writ, to which pla.intiffs objected, and after due hearing, at which both parties appeared with their respective counsel, the respondent judge reconsidered .his order, but requirf'd the defendants to render an accounting of the harvest for the year 1949, as well as all future harvesh:, and if the harvest had already been sold, to deposit the proceeds of the sale with the Clerk of Court, allowing the plaintiffs or their representative to be present during each harvest. This order was issued on March 4, 1950. Defendants e.gain filed a motion for the reconsideration oi this order, but it was denied, hen.::e the petition under consideration. The question to be determined is whether or not lhe respondent judge exceeded his jurisdiction in issuing his order of March .:, 1950, under the terms and conditions set forth above. We hold that the respondent judge has acted in excess of his jurisdiction when he issued the order above adverted to. That order, in effect, m!lde the Clerk of Court a sort of a rer.ei,·er charged with the duty of receiving the proceeds of sale and the harvest of every year during the pendency of the case with the disadvantage that the Clerk of Comt has not filed a11y bond to j!Uarantce the faithful discharge of his duties as dcpC1sitary; and considering th&t in actions involving title to real property, the appointment of a receiver cannot be entertained becaust> its effect would be to bke the property out of the possession of the defendant. except in extreme cases when there is clear cn>Of of its necessity to save th!:plaintiff from grave and irremedi~Lle loss or damage, it is evident that the action "lf the respondent judge is unwarranted and unfair to the defendants. <Mendoza v. Arellano, 36 Phil. 5&; Agonoy v. Ruiz., 11 Phil. 204; Aquino v. Angeles David, L.375; prom. Aug. 27, 1946; Ylarde v. Enriquez, supra; Arcega v. Pecson, 44 Oft. Gaz. <No. 12) 4884; Carmen Vda. de De la Cruz v. Guinto, 45 Off. Gaz. pp. 1309, 1311.) Moreover, we find that Agustina Paranctc, one of the defendants, has been in possession of the lands si11ce 1943, in the exercise of her rights as owner, with h1:.r codcfendants working for her exclusively as tenants, anJ tlrnt during all these years said A.~ustina Paranete had made i;nprovements thereon at her ?Wn expense. Thl"Se improvements were made without any contribution on the part of the plaintiffs. Thf' que:;;tion of ownership is herein in\·oh•ed and both parties seem to have documentary evidence . in :;;upport of their respectfre claims, and to order the defendants to render an accounting of the harvest and t.o deposit the proceeds in case of sale thereof durini; the pendcncy of the case would be to deprive them of their means oi livelihood before the case is dedded on the merits. Th~ situation obtaining is such that it docs not warrant the placing of the lands in the hands of a neutral person as is required when a receiver is appointed. To do so would be unfair and would unnecessarily prejudice the defendants. While the respondent judge claims in his order of March 25, 1950, that he acted as he did because of a verbal agreement entered into between t he lawyers of both parties, we do not consider it necessary tC1 pass on this point because the alleged agreement i3 controverted and nothing about it has been mentioned by the respondent judge in hi.Ii order under consideration. Wherefore, petition is hereby granted. The Court decbre:; the order of the respondent judge of March 4, 1950 null and void and enjoinS him from enforcing it as prayed for in the petition. ParaJJ, Feria, Pablo, Bengzon, Padilla; Tunson; Montemayo1·; Reyes, and J u.90, J.J., concur. XI Tomas T. Fabella, Petitioner, vs. Tibwrcio Tcmcinco et al., Respondents, G. R. No. L.3541, M ay 31, 1950. PLEADING & PRACTICE; EXECUTION; PROCEDURE IN ORDER THAT BOND FOR PRELIMINARY INJUNCTON MAY BE APPLIED TO SATISFACTION OF JUDGEMENT. - A bond filed for the issuance of preliminary injunction is not one given· under section 2 of Rule 39 to guarantee the P.crformance of an cippealed judgment. 'fhe preliminary injunction is;;ued in tliis case wns for the purpose of staying the execution of a judgment which is scught to be set aside on the ground of fraud, accident, mistake or excusable negligence. Such a bond is specifically authorized by se<:tion 5 of Rule 38, and its condition is that if the petition to reopen is dismissed or petitioner fails on the trial of the case upon its rner:ts, the petitioner "will pay the adverse party all damag~s and costs that ma.y be awarded to him by reason of the issuance of such injunction, or the other proceedings following the pe.. tition." Such bond "will not answer for the amount of the judgment sought to be set aside." U Moran, Rules of Court, 636.) As directed by section 9 of Ruic 00 the damages recoverable on a bond of this kind "shall be claimed, ascertained and awarded under the same procedure as prescribed in section 20 of Rule 59, which clearly contemplates that before damages could be recovered on the bond, there must first be an apjliic11tion with due notice to the othe1· party ar.d his sureties setting forth the facts showing applicant's right to damages and the amount thereof. To this application, the other party may interpose his pleading, and upon the issue thus being joined the matter will be tried and determined. Alberto R. de Joya for petitioner. Cecilio I. Lim and Antonio M. Ca.stro for respondents. DECISION REYES, J.: This is a petition for certiocari 'o annul two orders of the Court of First Instance of Manila in Civil' Case No. 3854, entitled Juan A. Ramos et al. vs. Tomas T. Fabella. It appears that on December 24, 1947,. plaintiffs in said case obtained a judgment against defendant for the sum of P4,050.00 plus legal interest and costs. Defendant did not appeal, but on March 17, 1948, he filed a petition to have the judgment set aside, 138 THE LAWYERS JOURNAL March 31, 1954 and, in accordance with section 5 of Rule 38, Rules of Court, and upon the filing of a. bond for !"4,050.00, he had the court issue a preliminary injunction to prevent the jurlgment from being executed. The petition to set aside the judgment was granted. But in the new trial that followed, defendant again lost. Not only that; plaintiffs were allowed to recover more, for in the new judgment that waS rendered, defendant was ordered to pay them !"12,400.00, plus interest, in addition to the sum previously adjudged. Noti4 fo:d of this new judgment on July 21, 1949, defenda.nt filed his motion for reconsideration 33 days thereafter, but it was denied by the court on the ground that the said judgment had already become final. On August 30, 1949, the court, at the instance of plaintiffs, ordered the issuance of a writ of execution, and on the 21st of the following month, again at pla.intiffs' instance, ordered the above mentioned bond confiscated, "to be applied," so the order says, "in partial satisfaction of the judgment r endered herein." Reconsideration of this last order having been denied by the court below, its annulment is now sought in the presi:nt petition. On October 4, 1949, defendant filed a petition to set aside the order of August 30, denying reconsideration of the second de~ cision for the reason that the same had already be"come final. As ground for this petition defendant alleged that the late filing of his motion for reconsideration was due to mistake and excusable negligence, more specifically as follows: "1. That t he said motion for reconsideration was not filed on time, i. e., August 20, 1949, due to mistake and excusable neglect on the part of the clerk of tht: undersigned counsel, which consists in th::i.t said clerk, Miss J ovita Nierr as, had been sick from August 18, 1949 to August 22, 1~49, and consequently she was absent and did not come to the office of the undersigned, during the said period; that inasmuch as foe undersigned had been relying upon her said clerk to remind him of the filing of pleadings, records, briefs, etc. as they become due, and that said clerk had been absent during the said period, and failed to notify the undersigned of the last day for the filing of the said record on appeal, and the undersigned coun:;el not knowing of the exact last day for the perfect-ion of the appeal in this case, he was not a.ble to perfect tbe appeal in this case; that the truth of the ma.tter being said clerk had been preparing the record on appeal in this case; that defendant had not had the intention to abandon his appeal in this case; that the amount invvlved in the appeal is more than !"16,400; that it would be an injustice to the herein defenda.nt to be deprived of his right to appeal in this case; that the said defendant has been the victim of persecution, criminal and civil, which has impoverished him; that his case is meritorious and that the judge then presiding over this Honorable Court. the Hon. Buenaventura Ocampo ha.d not fully appreciated the evidence and the law in this case; that no violation of any substantial right of the plaintiffs in this case could be incurred, in view of the fact that said plaintiffs had a lrea.dy levied upon all the properties of the herein defendant, including those which are by law ex~mpt from execution, thus totally depriving the herein defendant of his only means of livelihood." This petition was also denied in an order rend<:!red November 4, 1949. This is the second order whose annulment is herein sought. Going back to the order for the confiscation of the bond, it should be noted tha.t the said bond is not one given under section ?. of Rule, 39 to guarantee the performance of an appealed judgment, but one required for the issuance of a writ f')f preliminary injunction to stay the execution of a judgment which is sought to be set aside on the ground of fraud, accident, mistake or excusable negligence. Such a bond is specifically authorized by Section 5 of Rule 38, a.nd its condition is that if the petition to reopen is dismissed or petitioner fails on the trial of the case upon its merits, the petitioner "will pay the adverse party all damages and costs that may be awarded to him by reason of the issuance of such injunction, or the other proceedings following the petition." Such ::i bond "will not answer for the amount of the judgment sought to be set a.side." CI Moran, Rules of Court, 636>. As directed by Section 9 of Rule 60, the damages recoverable on a bond of this kind .. shall be claimed, ascertained and awarded under the saml' procedure as prescribed in section 20 of Rule 59," which, in so much as is pertinent to this case, provides: "x x x x. Such damages may be awarded only upon application and after prOper hearing, and shall be included in the final judgment. The application must be filed before the trial or, in the discretion of the court, before entry .>f the final judgment, with due notic<> to the plaintiff and his surety or sureties, setting forth the facts showing his right to damages and the amount thereof. x x x." This provision clearly contemplates ,that before damages could be recovered on the bond here under consideration, there must first be an application with due notice to the other party nnd his sureties setting forth the facts showing applicant's right to da~ mages and the a.mount thereof. To this application, the other party may interpose his pleading, and upon the issue thus being joined, the matter will be tried and determined. But the r espondent judge appears to have completely disregarded this pro. cedure and, without hearjng on the amount of damages and without even notice to the surety, declared the bond confiscated and ordered it applied to the satisfaction of the judgment, merely on the gratuitous assumption that the plaintiffs had suffered damages in the amount of the bond. The order is illegal and should therPfore be revoked. As to the other order herein complained of, it should be recollected that defendant's motion for a reconsideration of the se.c:ond judgnlent was filed after the said judgment had already become final. It was, therefore, properly denied. It may be added that the motion was merely pro forma. But 35 days after the denial of the motion. defendant sought rec(lnsideration of the order of denial, alleging as a ground that the tardiness in the filing of the first motion was due to "mista.ke and excusable neglect" or\ the part of his clerk who, it was all1>ged, had been' absent from office on account of sickness, and invoking the precedent established by this Court in Coombs vs. Santos, 24 Phil. 446, and in Siguenza vs. Mun. of Hinigaran, 14 Phil. 495. It may well be disputed whether an attorney could be excused for the .negligence of his clerk where there is no showing that he himtelf has shown diligence or ha.s clone anything to guard against such negligence. But assuming that a case of that kind is covered by the precedent laid down in the cases cited, it may not be amiss to point out that the defendants in those cases had not had their day in court, for judgment. was obtained against them by default, and this consideration must have weighed heavily in the mind of the Court. Such is not the situation here. The judgment which petitioner seeks to set aside is one that has been rt:ndered after regular trial, and the first motion for reconsideration does not contain any prima .fade showing tha.t the judgn1ent was wrong. Indeed, said motion for reconsideration was merel~· pro forma, based on the bare statement that the decision was contrary to law and was ·not supported by the C!vidence. And nothing was sa.id at that time why the motion was filed out ·)f time. A petition for reconsideration on the ground of excusable negligence is ttddressed to the sound discretion of the court. This discretion can not be interfered with e:xccpt in a clear case of abuse. Taking into account all the circumstances of the case, we are not prepared to say that the respondent judge did not make a good use of its discretion in refusing to set aside his order denying reconsideration of the judgment on the ground that this had alreadf become final. Wherefore, the order of September 2!, 1949, for the confis. cation of the bond is hereby revoked ; but the order of November 4, 1949, denying the motion to set aside the order of August 30. which in turn denies reconsideration of the ' judgment, is affirmed. Without pronouncement as to the cost& Oza.eta, Pablo, Bengzon, Tuason, Montemayor, JJ.; concur. March 31, 1954 THE LA WYERS JOURNAL 139 x;n VJhich leave certain properties of the testatrix for the saying oi Santiago Degala, Plai11.tiff-Appellee vs. Cecil.ia Reyes et al., fenda11.ts-Appellants, G.R. No. 2402, November 29, 1950, De- rna~ses for the soul of the testatrix: and her relatives and for the maintentmce and repair of the church, convent and the old chapel of the Roman Ca.tholic ccmete1·y of Sta. Maria and of the church of Burgos, Ilocos Sur, create a charitable and religious trust, a11d this court in the case of Govermn('nt of the P. I. vs. Ahadilla, 46 Phil. 642, 647, quoting Perry on Trusts, held that m regard to private trust it i:t: not always necessary that the ct-stui (['te trust should he in esse at the time the trust is created in his fa.vor, anrl that in charitable trust the rule is still further relaxed. And (2) as to prohibition to alienate the properties in trust, Art. 785 of the Civil Code provides that in fiduciary substitutions "dispositions, imposing perpetual prohibition and temporary prohibition beyond the limits fixed by Art. 781" are inoperative; :..nd that Art. 792 prescribes that, impossible conditions and those contrary to law and good morals imposed in tcst.amentary disposition shall 00 considered as not imposed, and shall not prejudice that heir or legatee in any manner whatsoever, even should the testator otherPLEADING AND PRACTICE; INDISPENSABLE PARTIES; DECLARATORY REUEF. - The Roman Catholic church, or its legal representative, the Roman Catholic Bishop of Nueva Segovia, has interest in defending the validity of the trust created in the will in question and its interest would be affected by the declaration of nullity of the trust. "When declaratory relief is sought all persons shall be made parties who have 01' claim any interest which would be affected by the declaration ... " <Rule 66, sec. 3.) "And the absence of a defendant with such adverse interest is a jurisdictional defect, and no decla1·atory judgment can be rendered Cl C.J.S., p. 1049). But the Roman Catholic Church, or its legal representati\'es, was not included as party defendant in the present case. J. Quintilian for appellants. Antonio Directo for a.ppellee. DECISION FERIA, J.: During the pendency of the appeal from the o,rder of the Court of First Instance of Ilocos Sur probating a will executed by the late Placida Mina of Santa Maria.. Ilocos Sur, on April 22, 1927, Santiago Degala, alleging tha.t he is one of the legal heirs of said Placida Mina, filed a petition with th('· court ·praymg that the provisions of 11aid will and testament creating a trust be declared null and void because there is no astui que trust nemed therein, under Rule 66 on Declaratory judgment. The said will provides, among others, the following: "SEGUNDO. - Las rentas o productos de mis terrenos, casas y animales cqn exccpcion de las parcelas de terreno arriba mencionadas se aplicaran al pago de amillaramiento de mis propiedades par:i. la reparacion y con. tinuacion de la construccion de mis dos casas de mamJ>OSteria que estan frente a frente, y para la -realizacion de las misas dispuestas en este testamento; y ca.so de que sobrare algo se dispondra, en ca.so necesario, para ayudar en 10s gastos de la reparacion de la iglesia, conver.to y la a.ntigua capilla de! cementerio romano de Santa Maria y l:i. iglesia de Burgos. x x x x OCTAVO. - Ordeno quc todos Jos afios empezando des.de mi muerte se celebren misas cantadas en las fechas del dia de mi nacimiento y muerte, en !!ufragio de mi alma, de las de mis parientes mencionadas al con1ienzo de este testamento y de las de mis difuntos abuelos Santiago Minn y Florentina Degala, padre y madre de mi padre, y de las de Mariano Directo y Anastacia Peralta, padre y ma.dre de mi madre." The only persons who were made party defendants in the petition for declaratory judgment are Cecilia Reyes, petitioner for the probate of the will in Case No. 3689, Valentin Umipig, special administrator of the estate of the deceased appointed by the court, and Leona Leones and Cipriana Alcantara named as trustees under the will. After the hearing of the petition, the Court of First Instance of Ilocos Sur held that if it were not the unanimous desire of al! the parties that the court declare, once and for a.II, whether certain provisions of the will are null and void or not, it would dismiss the petition for declaratory judgment in accordance with .American preced('.nts. becaus(' the judgment of the lower court probating the will was then still pending a ppeal in the Supreme Court. But in view of such unanimous desire, the court declared, among others, that the above quoted provisions of the will creating a fideicorniso or trust are null and void, because the test.atrix has not named the first heir or eestm quo tntat Gnd because they are contrary to the Jaw on perpetuities. The defendants Cecilia Reyes and Valentin Urniplg appealed from the said judgment to this court, The appellants in a well . written brief contend <U that the provisions in the will or testament of the late Placid& Mina wise provide. It is obvious, that the Roman Catholic church or its legal representa.tive the Roman Catholic :Rishop of Nueva Segovia, has intere11t in defer.ding that validity of the trust created in the will "and its interest would he affected by the declaration of nullity of the trust. Sec. 3, Rule 66, of the Rules of Court providC>s thar "when declaratory relief is sought, all persons shall be made parties who have •lr claim any interest which would be affected by the declaration, and no declaration shall, except as otherwise provided in these rules, prejudice th(, rights of persons not parties to the action.'' The nonjoinder of necessary parties would deprive the declaration of the final and pacifying function it is calculated to subserve, as they would not be bound by the declnration and may raise the identical issue <Hoskyns vs. National City Bank of New York, G.R. No. L-1877, promulgated December 29, 1949) "And the absence of a defendant with such adverse interest is a jurisdictional defect, and no declaratory judgment can be rendered <Corpus Juris Secundum, Vol. I, p. 1049). But the Roman Catholic Church, or its lcga..1 representatives was not included as party defendant in the present case. ' In view of the foregoing, the judgment appealed from in so far it declares the trust under consideration null and void, is set aside, without pronounttment as to costs. So ordered. · /Jlor11n, Paras, Pablo, Beng::on, Tuason, Montemayor; Reyes; Jugo, and Bn1tti1Jtn. Angelo, J.J., ct)ncur. XIII Feliciano Jover Ledesme, Petitioner, vs. Buen Morals ei al., Respundents, G. R. No. L-3251, August 24, 1950. PLEADlNG AND PRACTICE; COUNTERCLAIM MAY BE FILED IN ACTION FOR DECLARATORY RELIEF. - In a special civil action for declaratory relief, to the petition filed by the petitioner, the defendant or respondent may s('t up in his answer a counterclaim based on or arising from the same transaction, deed or contract on which the petition is based. He may als::> set up said counterclaim in an amended answer filed before judgment, provided that his faiiure to include the counterclaim in the original answer was due t(I oversight, inadvertence or excusable neglect. Courts should be liberal in the admission, especially of compulsory counterclaims which may be barred unless so interposed. Jover-Ledesma and Zaragoza and Ricardo C. Pun.o for petitione1·. Alberto R. de Joya for respond('nts . DECISION MONTEMAYOR, J.: On April 17, 1944, Huen Morales obtained a lo~n from Feliciano Jover Ledesma. in the amount of !'2,023.86 in Japanese military notes. To secure payment of said loan, Morales executed a real estate mortgage on a parcel of Jarid in the City of Manila. According to the terms of the loa.n, it was . to be paid within three years with\Jut interest but that before the expiration of two years the mortgagee cannot be compelled to accept payment of the debt or any pa.rt thereof; that in case of foreclosul'e, judicially er extra140 THE LA WYERS JOURNAL March 31, 1954 judicially, on account of the failure of the mortgagor to pay the debt, said mortgagor will pay to the mortgagee an additionlll sum equivalent to 15% of the amount due for a.ttorney's fees. On May 10, 1948, mortgagor Morales filed in the Court of First lnstance of Manila a. petition for declaratory judgment against mortgagee Ledesma making reference to the loan and the mortgage already de.scribed alleging that she <Morales) had offered to pay the indebtedness in October, 1944 but that mortgagee LPdesma had refused to accept payment bec!luse of the stipulation c:ontained in the deed of mortgage that the mortgagt.-e may not accept payment until after the expiration of two yeal's; that after the expiration of said two years, after liberation, petitioner Morales had tendered full payment of the debt by offering "victory J>e:S()" rnoney in a sum equivalent to the amount of the loan under the Ballantyne schedule, but that Ledesma had refused to accept the offer, he (Ledesma) insisting that the entire debt be paid in victory peso. that it was the agreement between the parties tha.t in the event that at the time of payment of the debt, the Japanese military note was no longer legal tender, then the debt should be paid only in its equivalent value in lega.I currency, but that this agreement was not expressed in the deed of mortgage for fear of the Japanese. The petitioner in that case asked the court to state and declare the equivalent value in the present currency of the 1"2,023.86 military notes so that she might pay off the obligation, and that said equivalent value declared by the court be accepted by mortgagee Ledesma. Respondent Ledesma. answered the petition claiming thit the real agreement between the parties was that the mortgag·e debt was to be paid in genuine Philippine currency after the war, and fo!' that reason it was stipulated tha.t the loan was not to he paid until after the expiration of two years, within which period the p:;.rties believed that war shall have terminated. and so he prayed tha.t the petitioner be de!=lared indebted to him in the full amount of !'2,023.86. About a month after filjng said answc.'r respondent Ledesma filed a motion to admit an amended answer which included a coul'l.terclaim, the principal purpose of which, was to declare the petitioner indebted to him not only in the a.mount of the loan of !'2,023.86 l::ut also in the additional sum of P303.57 representing attorney's f~es, and that upon petitioner's failure to pay said two sums, within the period provided by the lower court, the mortgaged property be sold thru public auction by way of foreclosure of the mortgage. Petitioner Morales objected to the admiss.ion of the a..mendf'1 answer. She was sustained in her opposition by the triul Judge 1t1.·ho in an order dated July 6, 1949 denied the motion to admit his an1ended answer. Ledesma filed a motion for reconsideration claiming tha.t his failure to include the counterclaim in his original answer was due to oversight and inadvertence. Respondent Judge in an order da.ted July 25, 1949 denied the motion on the ground that the counterclaim relates to matters entirely outside the subject of the petition for declaratory relief. Ledesma has now filed a petition for certiorari in this Court to review and to set aside said order of denial on the ground tha.t the trial Judge had abused his discretion, and that said Judge be directed to admit petitioner's amended ::i.nswer. The question to be determined in this case is whether a countercl&im may be filed and entertained in declaratory relief proceedings. By far, tfie great majority of courts in the United States of America. allow the setting up of a counterclaim in a petition for declaratory relief or judgment. <87 ALR 1249 and 68 ALR 113>. The only requirement is that the subject matter of the said counterclaim be connected with the subject matter of the action and must, of course, arise out of the same transaction. <Anderson 011 Declaratory Judgment p. 263). There, it is even allowed to bring in third parties by counterclaim or cross-complaint. See also Bor. cha.rd on Declaratory Judgment, pp. 812-814. In this jurisdiction we see no objection to allowing the filing of a counterclaim in a petition for declaratory relief. Rule 10 of the Rules of Court provides for the filing of a counterclaim. And SEction 6 of said Rule 10 further provides that a counterclaim not set up shall be barred if it arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication th" presence of third parties of whom the court cannot acquire jurisdiction. This is what is generaUy termed a compulsory counterclaim, one which a defendant must interpose in order to prevent it from being barred in a subsequent, separate action. The philosophy of the Rule seem to be to ·discourage separate actions which make for multiplicit}o of suits and wherever possible, to permit, and sometimes require, combining in one litigation all the cross-claims of the parties, particularly where they arise out of the sa.me transaction. l Gallahar v. George A. Rheman Co., 7 Fed. Rules Service, p. 299, cited in Moran's Comments on the Rules of Court, Vol. I, p. 183>. Of course, the counterclaim involved in the present case was not included in the original answer but was set up in an amended 1!.nswer which the petitioner prayed the court for permission to file. Section 5 of the same Rule 10 provides that when a pleading fails to set up a. counterclaim thru over~ight, inadvertence or e:r:cusal>le nEglect, he may, by leave of court set up the counterclaim by amendment beforP. judgment. In his motion for reconsideration, petitioner herein alleged oversight and inadvertence as reasons for his failure to include the counterclaim in his original answer. In the case of Gallahar v. Rheman Co., supra, a motion- •to strike counterclaims on the ground that they were omitted from the answers as originally filed and were brought ln too late by amendment was overruled since the counterclaims arose out of a transaction which wa.s the subject matter of the opposing party's claim and if not adjudicated in the proceeding, defenda11b might lose all r ight to have them detet·mined. The circumstances attending the filing of the counterclaims in said case bt:ing exactly the same a.s those involved in the present case, this ruling in the Galla.. har case has particular application in the present considerations. One might contend, however, that Ruic IO above-cited and commented on, applies only to ordinary civil actions and not to a special civil action like a petition for declaratory relief. But we should bear in mind that Rule 65 of the Rules of Court expressly states that "the provisions of the preceding rules (including Rule 10 of course), shall apply in special civil actions for dtcla-ratory relief, Ct>rtiorari, prohibition, x x x which are not inconsistent with or may serve to supplement the provisions of the Rules relating to such special civil action." In the special civil action pending in the lower court, at least one of the claims of the defendant, contained in his counterclaim, that referring to attorney's fees, arises from or is intimately connected with the transaction or contract on which the petition for declaratory relief is based. Said counterclaim seeks to incrf'ase the.. amount allegedly payable and due to the defendant by adding thereto the amount corresponding to attorney's fees, and if not .set up in that special civil action, may be forever barred. In conclusion, we believe and hold that in a special civil aetion fer declaratory i·elief, to the petition filed by the petitioner, the dEfenda.nt or respondent may set up in his answer a counterclaim based on or arising from the same transaction, deed or contract on which the petition is based. He may also set up said counterclaim in an amended answer filed before judgment, provided that his failure to include the countercla.im in the original answer was due to ovE:rsight, inadvertence or excusable neglect. Courts should be liberal in the admission, especially of compulsary counterclaims which may be barred unless so interposed. In view of lhe foregoing, the order of the respondent Judge denying the motion to admit the amended answer and the other order denying the motion for reconsiderati~n are hereby set a.si,l.le and said respondent Judge is directed to admit the amended answer, including the counterclaim. No pronouncement as to costs. Moran, Ozaeta, Pabl<i, Bengzon and Re'j/es - J.J. Mr. Tuason took no part. March 31, 1954. THE LA WYERS JOURNAL XIV Trinidad Stm.im Md Isidoro G. Mercado, Petitioners vs. Jua't& Enriq1lez, Respcnulents, G. R. No. L-258Z, March 23, 1950. JUDGMENTS; PETITION FOR CORRECTION OF JUDGMENT AND EXTENSION OF TIME TO APPEAL; DUTY OF COURT TO DECIDE. - In ease a party t.o a case files a petition for correction of the judgment rendered and for an extension of time to perfect an appeal, he is entitled t.o expect action thereon by the courL The latter is in duty bound to decide and resolve the two petitions and it is unfair for it to declare the judgment rendered in the c.aae final and executory without first complying with its duty to act on the petitions for extension of time to perfect the appeal and for correction of judgment. Certiorari granted. Poteftciano A . Magtibay for petitioner. R~ Judge in his own behalf. A!lt<mio L. Azores for respondents Azoru. RESOLUTION PADILLA, J.: This is a petition for a writ of maRdam."3 to compel the :respondent court to correct an erroneous statement made in its order of 26 May 1948, entered in civil case No. 4.3 of the court of first instance of the province of Batangas entitled " Trinidad Sem.ira et al, plaintiffs, v. Jose R. Azores et al., defendants;" to secure declaration by this Court that the motion for correction of 21 Junr. 1948 filed in said case by the rietitioners, the plaintiffs in the court below, suspended the running of the 30-day period within which an appeal could be taken; and to have the order of 25 Sep~ ember 1948 entered by the respondent court in the case, whereby it declared that the judgment rendered therein had become final an executory, set-aside. Answering the petition, the judge of the respondent court alleges that the defendants in the case, in which the judgment aougbt to be appealed wiis entered, are necessary parties and must running of the 30-da.y period within which an appeal could be perfected, because the misstat.ement. waa· just a clerida.l. error which could not and did not mislead the plaintiffs-· now petitioners. The t-espondent court added that if the extension of time prayed for had been granted, the last day would have been 9 (should be- 13> July 1948, M4 if denied, the last day would have been 24 <should be 281 June 1948. That the defendants in the case for wli.om judgment was rendered and from which the plaintiffs -now petitioners-- attempteJ to appeal should have been brought in or joined as respondents, admits of no doubt. They are ihe parties directly affected in these proceedings. The pet_itioners, plaintiffs in ·the case in the court below, were e:nt-itled t.o e::a:pect action by the respondent court on their petitions for extension of time to perfect the appeal and for correction of the order of 26 May 1948. The respondent court was in duty bound to decide and resolve the two petitions and it is unfair for it tO declare the judgment rendered to the case final and executory without first complying with its duty to resolve and decide the petitions for ext!'naion of ti.me to perfect the appeal and for correction of the aforesaid order of 26 May 1948. The petiti:mers are directed to amend their petition to include or implead as respondents the defendants in the case in the court below, within five <5> days from notice or receipt of a copy of this resolution; and, afier such amendment shall have made, let the new respondents answer the petition within five {5) days from date of servic<! upon them of the amended petition. Moran, Ozada., Pablo, Beng-zon, Tuason, Montemayor and Reyea. J .J. concur Torres voted in favor of the dispositive part of this resolution. xv Angel.a Goyana de Quizon, plaintiff-Appe&nt -vs. PhilippiM National Bank et aL, Deferulant.s-A.ppellus, G . R. No. L-2851, Januarv 31, 1950. be joined; and, after setting forth the proceedings in the court below pertinent to the question raised by the petitioners. prays 1. PLEADING AND PRACTICE; CONTEMPT IN EXECUTING JUDGMENT. - When, as in this case, the judgment requires the delivery of real property, it must be e.-,:P.cuted, not in' accorda.nce with section 9 of Rule 39, but in accordance with paragraph d of section 8, Ruic 39, and any contempt proceeding arising therefrom must be based on paragraph H of section 3, Rule 64, and not on pa.ragraph b of the· sam~ sect ion in relation to section 9 of Rule 39. that the petition be dismissed for lack of merit. · The facts all~ed in the petition are a.s follows: The petitioners are the plaintiffs and Jose R. Azores, Sinforoso tuores, Antonio Azores, Norberta Azores, Bienvenido Azores, Apolonio Azores, Manual Azores and Juana Azores are the defendants in civil case No. 43 of the court of first instLnce of Batangas. On 7 July 1944, judgment was rendered there.in for the defendants. Counsel for the plaintiffs received a copy of the judgment on 7 2. August 1944. Twenty...seven <27) <should be 23> days after receipt of the notice of judgment, and three (3) ·<should De 'J) days before the last day of the 30-day period with.in which the losing party could periect an appeal, or on 30 August 1944, counsel for the plaintiffs filed a motion for reconsideration. On 26 May 1948, after the record of the case had been reconstituted, the res;><>ndcnt court denied the motion for reconsideration. On 21 June, counsel for the plaintiffs received a copy of the order denying the motion for reconsideration. But prior to the receipt of a copy of the last order, on 5 June 1948 counsel for the plaintiffs filed an urgent ·ex-parte petition ad cautelam., dated 1 June 1948, for additional 15 days within whidi to perfect the appeal, should thfl court deny the motion for reconsideration. As in the order of 26 May of 1948, denying the motion for reconsideration, a misstatement was made, t.... wit: that the defendants filed the motion for reconsideration and the plaintiffs filed an opposition thereto, when it was just tht- reverse, on 21 June 1948, or on the same day counsel for the plaintiffs received a copy of the last mentioned order, counsel filed a petition for correction and set it for hearing- on 3 July following. As counsel for the plaintiffs did not receive notice of any action taken by the court on the two petitions for extension of time and for correction, he addressed a letter to the clerk of the court of first instance of Batangas inquiring as to what action, if any, ha.d been taken on the petition for correction. On 2 October 1948, counsel for the plaintiffs received. a oopy of the order dated 25 Sept.ember 1948, holding that the judgment rendered in the case on 'l July 19.U had become final and executory, because the motion for extension of time, in the opinion of the court below, could be granted for good reasons only and not when it is for the purpose: of d_ elay, and that the petition for correction did not st.op the ID.; EXECUTION OF JUDGMENT REQUIRI NG DELIVERY OF REAL PROPERTY. - "According to these sections <provisions of Act 190 from which Rule 39, sec. 8-d was " taken>, it is exclusively incumbent upon the sheriff to execute, to carry out the mandates of the judgment in question, and, in fact, it was he himself, and he alone, who was ordered by the justice of the peace who rendered that judgment, to place ihe pla.intiff in possession of the land The defendant in this case had nothing to do with that delivery of possession, and, consequently, his statements expressing his r<"fusal or unwillingness to effect the same, are entirely officious and impertinent and therefore cou1d not hinder, and much less prevent, the delivery being made, had the sheriff known how to comi>ly with his duty. It was solely due to tlie latter's fault, and not to the alleged disobedience of the defendant, that the judgment was not duly executed. For that purpose the sheriff could even have availed himS(!lf of the public force, had it been necessary to resort thereto." <U.S. vs. Ramayrat, 22 Phil. 183.l This means that the sheriff must despossess or eject the 1osing pa.rty from the premises and deliver the possession thereof to the winning party. U subsequent to such dispossession or ejectment the losing party enters or attempts to enter into or upon the real property, for the purpose of executing acts of ownership or possessoin, or in any mann;r disturbs the possession of the person adjudged to be entitled thereto, then. and <mly then may the loser be charged with and - punished for contempt under paragraph h of section 3, Rule 64. A11.dres M. Hagad for appellant. Meuses and Dima.yugo for appellees. 142 THE LAWYERS JOURNAL March 31, 1954 DECISION' OZAETA, J., rend~r~J~;e ~! :.!!% :~~i~:!C:\1ieB:=~ j~d:eenatoo':: entitled case the dispositive part of which reads as follows: "Wherefore, the Court hereby renders judgment approving the agreement above quoted and declaring: a) Defendants Alex F. Magtibay and Paulina B. de la Cruz t.o be the absolute owners of the properties under litigation and described in the complaint; b) Authorizing the plaintiff Angela Goyena de Quizon to buy the properties referred to aOOve for the sum of FIVE THOUSAND FIVE HUNDRED PESOS (PS,SOCl.00). THREE THOUSAND PESOS (P3,000.00) to be paid within 90 days from the date of the said agreement, and TWO THOUSAND FIVE HUNDRED (P2,500.00), within the period of one U) year from the same date of said agreement, both payments to be made without interest. Failure, however, on the part of the said plaintiff Angela Goye.na de Quizon to comply with any of the stipulations contained in the above-quoted agreement shall cause fdrfeiture of the plaintiff's right to purChase said properties, with the obligation on her part to vacate the premises and deliver the possession thereof to said defendant Alex F. Magtibay and Paulina B. de la Cruz:; provided, however, that should the plaintiff pay the sum of THREE THOUSAND PESOS (PS,000.00), as above mentioned,. but failed to pay the balance of TWO THOUSAND FIVE HUNDRED PESOS <1"2,500.00> within the period stipulated as aforesaid, the plaintiff shall forfeit the amount already paid; c) On!~ring said defendants Alex F. Magtibay and Pauli· na B. de la Cruz: that upon payment to them by said plaintifj of the amount of FIVE THOUSAND FIVE HUNDRED PESOS (PS,500.00), agreed upon as herein.above mentioned, to exe· cute a deed of absolut.e sale of the properties under litigation in favor of said plaintiff within 30 days from date of the last payment." Plaintiff paid the first intallrnent of P3,000 mentioned in said judgment but failed to pay the second installment of P2,500, alleging that her failure to do so was due to the subsequent separation of the defendants, the spouses Magtibay and her inability to determine who of said spouses was entitled to receive the payment. Resolving plaintiff's motion for int.erpleader and defendants' motion for execution of the judgment, the court on August 28, 1947, entered the following order: "Con la conformidad de las partes y los abogados que representan a las misma.s, se concede a Angela Goyena de Quiz.on un plam ha.st& el Sabado, 30 del actual, a las 12:00 de dicho dia, para que depos.ito en poder del Escribano de este Juz:gado y en beneficio de Paulina B. de la Cruz: la soma de P2,500.00, corriendo a cuenta de la depositant.e los derechos y comision del juz:gado, y de no hacerlo dentro de ese plaz:o, el juz:gado declararia que dicha Angela Goyena de Quizon ha perdido el derecho sobre la finca envuelta en este asunto, de acuerdo con la decision dict.ada en el mismo.'' Because the plaintiff faiJed to deposit the sum of P'l,500 within the period mentioned in the order last above qwoted, the defendant Paulina B. de la Cruz: again asked for a writ of execution, and Judge Eugenio Angeles, on September 11, 1947, issued an order the dispositive part of which reads as follows: ''WHEREFORE, enforcing the judgment rendered herein, the Court hereby declares that, because of the failure of the plaintiff to pay the amount of P2,500.00 which said plaintiff had a.greed to pay on or before June 18, 1947, the plaintiff has forfeited to the defendants, Alex F. Magtiby &11d Paulina B. de la Cruz: the said amount of P3,000.00, and said plaintiff has lost the right to repurchase the property the subject matter of the present action. and said plaintiff is hereby ordered t.o vacate the promises and deliver the possession thereof to the said defendants Alex F. Magtibay and Paulina B. de la Crus.." On October 2, 1947, the plaintiff deposited the sum of P2,500 with the clerk of the lower court, who in turn th£n and there. de-posited it with the provincial treasurer, as appears on folio 67 of the record below. The record does not show action was taken by the lower court with regard to said belated deposit. But the record does show that by virtue of an order of Judge J uan P. Enriquez: dated January 2, 1948, the clerk. of court issued a writ of execution which reads as follows: 4/lf.1. SHERIFF P.ROVINCIAL DE BATANGAS IJISALUD: "Por cuanto en 18 de Junio de 1946 se dict.o decision en esta causa de conformidad con el convenio firmado por las part.es y sus abogados; "Por cuanto d.icha decision quedo firme y ejecut.oria, y, en 2 del actual. el Juz:gado ordeno la ejccucion de la decision aludida; "POR TANTO es ordenamos que entregueis a los deman-dados AIU F. Magtibay y Paulina de la Cruz: la siguient.e p~ piedad: "A parcel of residential land and building constructed on the same With all existing improvements thereon, situated in the poblacion of Rosario, province of Batangas, bounded on the N. by Provincial Road <San JuanBatangas road); on the E. by property of Rufino Goyena and River; on the S. by River and on the W. by River also. x x x x x which has a total assessment value of !'2,040, under tax declaration No. 35883 in the name of Angela Goyena in the province of Batangas." dichos Alex F. Magtibay y Paulina B. de la Cruz, los demandados, recobraron en 11 de Septiembre de 1947 en nuestro Juz:.. gado, de la demandante Angela Goyena de Quiz.on, y devolvais la prcsente dentro del plazo fijado por la Ley, consignando en su dorso vuestras diligencias correspond.ientes. "Dada por el Honorable JUAN P. ENRIQUEZ, Juez: de dicho Juz:gado, en la Ciudad de Lipa, hoy a 3 de Enero de 1948. (Sgd.) EUSTACIO S. LUSTRE Escribano" · The return of the sheriff states that on the morning of January 5, 1948, he went to Rosario, Batangas, accompanied by Alejandro Magtibay, son of the defendant spouses Magtibay, and with one policeman of the town went directly to the place where the land and building were located, and "I contacted the occupants of the ground floor of the said house and explained t.o him (sic) the writ of execution issued by the Court of First Instance of Batangas, Lipa City. After determining the boundaries as described in the exttution, I delivered the herein - described parcel of residential land and building to Mr. Alejandro Magtiba.y." On May 22 and July 10, 1948, Paulina B. de la Cruz and Alex F. Magtibay, respectively, filed separate petitions in court asking that the plaintiff be declared in contempt of court and punished in accordance. with Rule 64 on the ground that she had disobeyed the order of· Judge Angeles of September 11, 1947, and the order of execution of Judge Enriquez of January 2, 1948, "by refusing to vacate the premises in question and to deliver the possession thereof to the defendants Alex 'F . Magtibay and Paulina B. de la Cruz." After hearing both parties Judge Gustavo Vict.oriano, on October 6. 1948, entered the following order: "This is a petition to declare the plaintiff, Angela. Goyena de Quizon, in contempt of court for having failed to comply with the orders of this Court of September 11, 1947, January 2, 1948, and August 28, 1947. After considering the pleadings and arguments presented by both parties daring the hearing of this petition for contempt, the Court is of the opinion and so holds that the plaintiff Angela Goyena de Quizon has committed contempt of court in failing to obey the aforementioned orders of this Court and, therefore, sentences her to be imprisoned until she complies with the same by vacating the premises in question and delivering the possession thereof to said defendants Alex F. Magtibay and Paulina B. de la Cruz. March 31, 1954 THE LA WYERS JOURNAL 143 In case of appeal, the appeal bond is hereby fixed at P500.00." From the order last above quoted, the plaintiff has appealed to this court. The judgment involved here requires the plaintiff "to vacate the premises and deliver the possession thereof to the said defendants Alex F. Magtibay and Paulina B. de la Cruz." Under section 8 (d) of Rule 39, if the judgment be for the deliv ry of the possession of real property, the writ of execution must ire the sheriff or other officer to whom it must be directed to d ver the possession of the property, describing it, to the party entitled there-to. This means that the sheriff must dispossess or eject the losing party from the premises and deliver the possession thereof to the winning party. If subsequent to such dispossession or ejectment the losing party enters or attempts to enter into or upon the real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession of the person adjudged to be entitled thereto then and only then may the loser be charged with and punished for contempt under paragraph (h) of section 3, Rµle 64. party or person may be punished for cont.empt if he disobeys such judgment!' ) In other words, when as in this case, the judgment requires the delivery of real property, it must be execut.ed not in accordance with section 9 above quoted but in accordance with paragraph (d> of section 8, Rule 39, and any contempt proceeding arising therefrom must be based on paragraph (h) of section 3, Rule 64, and not on paragraph (b) of the same section in relation to section 9 of Rule 39. Acquitting appenant ot" contempt of court, we reverse the order appealed from with costs against the appellees Alex- F. Magtibay and PaYlina B. de la Crnz, Moran, Paras, Bengzon, Tuason, Reyes, Pablo, Padilla, Montemayor, Torr,s, J.J. concur. XVI Pedro P. Villa., Petitioner vs. F·idel l ba:iiez et al., Respondent, G. R. L-3413, March 20, 1951. 1. PLEADING & PRACTICE; EXTRAORDINARY LEGAL REMEDIES; WHEN PETITION FOR CERTIORARI MAY BE CONSIDERED AS ONE FOR PROHIBITION.-A petition for certiorari which iS" in reality one for prohibition, may be regarded as a petition for the latter remedy. In United States vs. Ramayrat, 22 Phil. 183, a similar writ of execution was invoked to punish the defendant for contempt of court. The defendant, who had been adjudged in a ~ivil case to deliver the possession of a certain parcel of land to the plaintiff, 2. manifested to the sheriff in writing that he was not willing "to deliver to Sabino Vayson (the plaintiff) or to the deputy sheriff ADMINISTRATIVE LAW; APPOINTMENT OF ADDITIONAL COUNSEL TO ASSIST FISCAL.-Appointments by the Secretary of Justice in virtue of the provisions of section 1686 of the Administrative Code, as amended by section 4 of Commonwealth Act No. 144, were upheld in Lo Cham vs. Ocampo (L-831, Nov. 21, 1946), Canape et al vs. Jugo et al <L-876, Nov. 21, 1946), People v. Dinglasan (44 O.G. 458), and Ko Cam et al v. Gatmaitan et al (L-2856, Mar. 27, 1950). But in those cases, the appointees were officials or employees in one or another of the bureaus or offices under the Department of Justice, and were rightly considered subordinates in the office of the Secretary of Justice within the meaning of section 1686, ante . An attorney who is, a regular officer or employee in the Department of the Interior, belongs to the class of persons disqualified for appointment to the post of special counsel. The obvious reason is to have appointed only lawyers over whom the Secretary of Justice can exercise exclusive and absolute power of supervision. uf this municipality, Cosme Nonoy, the land in my possession, as I have been directed to do by the said sheriff, in order that, in the latter case, he might deliver the same to the aforementioned Vayson, in conformity with the order issued by the justice of the peace of this municipa.lity." In affirming the order of the Court of First Instance acquitting the defendant of contempt, this court, interpreting the provisions of the Code of Civil Procedure from which paragraph (d) of section 8, Rule 39, was taken, held: "According to these sections, it is exclusively incumbent upon the sheriff to execute, to carry out the mandates of the judgement in question, and, in fact, it was he himself, and he alone, who was ordered hy the justice · of peace who rendered that judgment, to place the plaintiff, Vayson, in posssesion of the land. The defendant in this case had nothing to do with that delivery of possession, and, consequC!ntly, his statements expressing his refusal or unwillingness to effect thC! same, are entirely officious and impertinent and thC!refore could not hinder, and much less prevent, the delivery being made, had the sheriff known how to comply with his duty. It was solely due to the latter's fault, and not to the alleged disobediC!nce of the defendant, that the judgment was not duly exC!cuted. For that purpose the sheriff could even have availed himself of the public force, had it been necessary to resort thereto." In the present case it does not even appear that the plaintiff had been required by the sheriff, and had refused, to vacate the premises described in the writ of execution. All that appears in the return of the sheriff is that he contacted the occupar.ts of the ground floor of the house and explained to them the writ of execution, and that after determining the boundaries as described in the execution he delivered the premises to Mr. Alejandro Magtibay, the son of the winning parties. Who those occupants of the ground floor were, has not been specified. For all we know, they may be strangers to the Appellant cannot be punished for contempt under paragraph (b) of section 3, Rule 64, for disobience of or resistance to the judgment of the trial court because said judgment is not a special judgment enforcible under section 9 of Rule 39, which reads as follows "See. 9. Writ of execution of special iudgment.-When a judgment requires the performance of any other act than the payment of money, or the sale or delivery of real or personal property, a. certified copy of the judgment shall be attached to the writ of execution and may be served by the officer upon the pa.rty against whom the same is rendered, or upon any other person required thereby, or by law, to obey the same, and such 3. CRIMINAL PROCEDURE; JURISDICTION; MOTION TO QUASH.-The chief of the division of investigation in the office of the City Mayor, was appointed by the Secretary of Justice as special counsel to assist the City Fiscal in the cases of city government officials he had investigated. In pursuance of that appointment, he subscribed, swore to and presented an information charging a criminal offense. The defendant had pleaded to the information before he filed a motion to quash. It is contended that by his plea he waived all objections to the information. HELD: The contention is correct as far as formal objections to the pleading ·are concerned. But by clear implication, if not by express provision, of section 10 of Rule 113 of the Rules of Court, and by a. long line of uniform decisions, questions of want of jurisdiction may be raised at any stage of the proceedings. Now, the objection to the special counsel's actuations goes to the very foundations of jurisdiction. It is a valid information signed by a competent officer which, among other requisites, confers jurisdiction on the court over the person of the accused and the subject matter of the accusation. In consonance with this view, an infirmity of the nature noted in the information can not be cured by silence, acquiescence, or even by express consent. lltacario M. Peralta for petitioner. City Fiscal Eugenio Angeles, Assistant Fiscal of Manila Lorenzo Relova and Abelardo Subido for respondents. DECISION TUASON, J.: Attorney Abelardo Subido, chief of the division of investigation 144 THE LA WYERS JOURNAL March 3_1, 1954 in the office of the Mayor of the City of Manila, was appointed by the then Secretary of Justice, Honorable Ricardo Nepomuceno, as special counsel to assist the City Fiscal of Manila in the cases of city governn1ent officials or employees he had investigated; and in pursuance of that appointment, he subscribed, swore to and presented an information against Pedro P . Villa, the pr~sent petitioner, for falsification of a payroll of the division of veterinary service, l\Ianib health department. Attorney Subido\. authority to file the information was thereafter challenged by the accused but was sustained by His Honor, Judge Fidel lba1i.cz. Hence this petition for certiorari, which is in i·eality a petition for prohibition and will be so regarded. Chier grnund of attack, the resolution of which will dispose of the other and to which this opinion will therefore be confined, has to do with Attorney Subido's legal qualifications for the appointment in question under Section 1686 of the Revised Administrative Code, as amended by Section 4 of Commonwealth Act No. 144, which reads as follows: to the very foundations of jurisdiction. It is a valid information signed by a competent officer which, among other 1·equisitcs, confers jurisdiction on the court over tl1e person of the accused and the subject matter of the accusation. In consonance with this view, an infirmity of the nature noted in the information can not be cured by silence, acquiescence, or even by express consent. The petition will therefore be granted and the respondent Judge ordered to desist from proceeding with Criminal C:i.se No. 11963 upon the information filed by Attorney Abelardo Subido, without costs. Moran, Paras, Pablo, Beng::on, Padilla; Re71es; Jugo and Bautista,. Montemayor did not take part. Paras voted to grant the petition. XVII Urban Ei>tates, Inc., Pctilio11e1· v.~. Agustin P. Montesn aiul the City of Ma.nila, !2csvo1ulent.s, G. R. L-~830, M ardi 15, 1951. Sec. 1686. Additional co1rn.sel to assist fiscrtl.-The Sec- 1. retary of Justice may appoint any lawyer, being either a ::mbordinate from his office or a competent person not in the public service, temporarily to assist a fiscal or prosecuting attorney EXPROPRIATION PROCEEDINGS; MOTION TO DISMISS; EVIDENCE ON TO MOTION DISMISS.-U, the owner of the division sought to be expropriated, alleged and offered to prove in support of his motion to dismiss (1) the true and fnir market value; C2J that one-half of its t,1tal area. has been already sold at a very fair and reasonable price, some lots having been paid for in full and down payments having been made on others; and (3) that a big portion of the tract is reserved for playground as evidenced by Plan duly approved by the National Urban Planning Commission and the Director of Lands. The trial court refused to receive evidence on these allegations on the theory that a motion to dismiss assumes the truth of the facts stated in the CQmplaint. HEL D: In expropriation proceedings "each defendant, in lieu of an answer, shall present in a single mo-tion to dismiss .. all of his objections and defenses to the right of the plaintiff, to take his property for the use specified in the complaint" (Rule 69, sec. 4) . "The ascer- · tainment of the necessity must precede or accompany, and not follow, the taking of the land" (City of Manila v. Chinese Community of Manila, 40 Phil. 349) . As the City itself, the plaintiff, objectect to the substantiation of the facts set forth in the motion to dismiss, and since on their !ace and by their nature these facts are based on documentary proof, they can be taken for granted instead of remanding the case to the court bplow for further proceeding. in the discharge of his duties, nnd with the sam·e authority therein as might be exercised by the Attorney General or Solicitor General. Appointments by the Secretary of Justice in virtue of the ·foregoing provisions of the Revised Administrative Code, as amended, were upheld in Lo Cham vs. Ocampo et al., Canape et a\. v. Jugo et al., People v. J?inglasan et al., 44 0. G. 458, and Ko Cam et al. v. Gatmaitan et al., G. R. No. L-2856. But in those cases, the appointees were officials or employees in one or another of the bureaus or offices under the Depaitment of Justice, and were rightly considered subordinates in the office of the Secretary of J ustice within the meaning of Section 1686, ante. The case at bar does not come within the rationale of the a!Xive decisions. Attorney Subido was a regular officer or employee in the Department of Interior, more particularly in the City Mayor's office. For this reason he belongs to the class of persons disqualified for appointment to the post of special counsel. That to be eligible as special counsel to aid a fiscal the a ppointee must be either an employee or officer in the Department of J ustice is so manifest from a mere rending of Section 168G of the Revised Administrative Code as to preclude construction. And thP limitation of the range of choice in the appointment or designation is not without reason. The obvious reason is to have appointed only lawyers over whom the Secretary of Justice can exercise exclusive and absolute power of supervision. An appointee from a branch of the Government outside the Department of Justice would owe obedience to, and be subject to orders by, mutually independent superiors having, possibly, antagonistic interests. Referring particularly to the case at hand !or illustration, Attorney Subido could be recalled or his time and attention be required elsewhere by the Secretary of Interior or tht> City Mayor while he was discharging his duties as public prosecutor, and the Secretary of Justice would be helpless to stop sucil recall or interference. An eventuality or state of affairs so undesirable, not to say detrimental to the public service and specially the administration of justice, the legislature wisely intended to avoid. The defendant had pleaded to the information before he filed a motion t.o quash, and it is contended that by his plan he waived all objections to the information. The contention is correct as far as formal objections to the pleading arc concerned. But by clear implication if not by express provision of Section 10 of Rule 113 of the Rules of Court, and by a long line of uniform decisions, questions of want of jurisdiction may be raised at any stage of the proceeding. Now, the objection to the respondent's actuations goes 2. EXPROPRIATION; NECESSITY FOR.-"The very foundation of the right to exercise eminent domain is a ~enuine necessity, and that necessity must be of a public character" (City of Manila v. Chinese Community of Manila, 40 Phil. 349). The decisions in Guido v. Rural Progress (L-2089, Oct, 31, 1949), Commonwealth v. Arellano Law College C L-2029, Feb. 28, 1950), warned of the tendency to expand the construction of Section 4, Article XlII, of the Constitution "to t he limit of its logic." The Constitution contemplates large-scale purchases or condemnation of lands with a view to agrarian reforms and the alleviation of acute housing shortage. These are vast social problems with which the Nation is vitally concerned and the solution of which would redound to the common weal. Condemnation of private lands in a makeshift or piecemeal fashion, random taking of a small lot here and a small lot there to accommodate a f~w tenants or 1 squatters is a different thing. This is true be the land urban or agricul· tural. The first sacrifices the rights and interests of one or a few for the good of all; the second is deprivation of a citizen of his property for the convenience of another citizen or l?. few other citizens without perceptible benf'fit to the public. The first carries the connotation of public Ma.rch 31, 1954 THE LAWYERS· JOURNAL 14ri use; the last follows along the lines of a faith or ideology alien to the institution of property and the economic and social systems consecrated in the Constitution and embraced by the great majority of the Filipino people. 3. ID.; ID.;-Wherein resorting to expropriation, the city gov· crnment was prompted, not by the unwillingness of t.hc owners to part with their property but by the inability of the present tenants or squatters to meet the owner's price, e.xpropriation proceeding is not proper. The City cannot acquire land, by the simple expedient of eminent domain, for a price far below t11e capital invC!sted therein and sel1 it at cost to help the homeless who may have been forced to migl'ate from the provinces in search of safer haven in this city. If the price of lot-s for sale is beyond the reach of some people who want to buy, the City cannot. bring down the price to the level the poor could afford. That the city authorities have no power to do such thing, however altruistic may be the motive behind their action, seems too obvious for argument. 4. ID.; PARTIES.- In expropriating 11. subdivision, if the intention is to expropriate the lots that have been disposed of but have not been fully paid for, along with 1he rest of the entire tract, the purchasers should be made parties. Gibbs. Gibbs, Chuidian and Quasha for petitioner. City Fiscal Eugenio Angeles and Assistant F'iscal Ettlbgio S. Sr1'rano for respondents. DECISION TUASON, J,, This case, brought here on appeal from an order of Judge Agustin P. Montesa denying defendant's motion to dismiss, con· cerns the authority of the City of Manila to expropriate a tract of land situated within the c°ity limits and having an area of 49,553.10 square meters, more or less. Urban Estates, Inc., defendant, alleged and offered to proved in support of its motion to dismiss, that the true, fair market value of the property in question is f"l,002,074.00 and the assessed value f'363,150.00 ; that this land is mortgaged to Juan E. Tuason for P470,530.00 and is used to secure an overdraft with the People'~ Bank & Trust Co. in the sum of f'150,000.00, so that it has at least a Joan value of P'620,530.00; that the said land is a subdivision property and one.half of its total area has been sold already at a \•ery fair and reasonable price, some lots having been paid for in full and down payments having been made on others; and t hat a big portion of the tract is reserved for playground as evidenced br Plan Psd-24832 duly app~oved by the National Urban Planning Commission and the Dir..;ctor of Lands. But the trial court refused to reeeive evidence on these allcga· Hons on the theory that they were improperly made in a motion to dismiss; the court was- of the opinion that a motion to dismiss assumes the truth of the facts stated in the complaint. Section 4, Rule 69, of the Rules of Court, entitled "Defenses and Objections" provides: "Within the time specified in the summons, each defendant, in lieu of an answer, shall present in a single motion to dismiss or for other appropriate relief, all of his objections and defenses to the right of the plaintiff to take his property for the use specified in the complaint. All such objections and defenses not so presented are waived. A copy of the motion shall be served on the plaintiff's attorney of i·ecord and filed with the court with the proof of service." And in the City of Manila v. Chinese Community of Manila, 40 Phil. 349, this Court laid down this rule: "The very foundation of the right to exercise eminent domain is a genuine necessity, and that necessity must be of a public character. The ascertainment of the necessity must precede or accompany and not follow, the taking of the land." The Court cited this passage in Blackstone's Commentaries: "So great is the regard of the Jaw for private property that it will not authorize the least violation of it, even for the public good, unless there exists a very great necessity thereof." As the City itself, the plaintiff, objected to the substantiation of the facts sel fo1-th in tho:i mot.ion to dismiss, and since on their face and by nature these facts are based on documentary proof, we will take them for granted instead of rcmandini: the case to the court below for further proceeding. The matter of the right of the Government to condemn urban private lands for subdivision or resale to private persons has been discussed so extensively in Guido v. Rural Progress Administration, G. R. No. L·2089, De Borja v. Commonwealth of the Philippines, G. R. No. L-1496, and Arellano La.w Colleges v. City of Manila, G. R. No. L-2929, that we should think the question is no longer open, at least as far as inferior courts are concerned. Lest thosC! decisions may have been misread or misconstrued, a few rcmark:J are in order in further elucidation of their meaning. The Guido, De Borja and Arellano Colleges decisions expressly recognize the power of the Government to expropriate urban lands or rural estates for subdivision into lots. What those decisions empl1asize is the distinction, set in broad outline, between taking that inures to the welfare of the community at large nnd taking that benefits a mere handful of people bereft of public character. Jn explaining the distinction we mentioned public benefit, public utility, or public advantage as the universal test of the exercise of the i·ight of eminent domain, and warned of the tendency to C!X· pand the construction of Section 4, Article XIII, of the Constitution "to the limit of its logic." It is a matter of common knowledge that there were and there arc lands, comprising whole towns and municipalities, which werr or arc owned by one man or a group of men from whom their In~ habitants hold the lots on which their homes are built as perpetual tenants. These are urban lands. And there are private lands which it may be necessary in the public interest for the Government to convert into townsites and the townsites into house lots. It is also a matter of past and contemporary history that feudalism has been the root cause of popular discontent that led to revolutions and of present unrest and political and social disorders. Jt was such lands taken for such purpose which we said the framers of the Constitution had in mind and which the National Government and, with appropriate legislative authority, the cities and municipalities may condemn, We stated that it is economic Rlavery, feudalistic practices, endless conflicts between landlords and tenants, and allied evils which it is the authority, nay the dut.y, of the State to abolish by acquiring landed estates by purchase if possible or by condemnation proceedings if necessa-ry. In brief. the Constitution contemplates lari?e-scale purclrnses or condemnation of lands with a view to agrarian reforms and the alleviation of acute housing shorta~e. These are vast social problems with which the Nation is vitally concerned and the solution of which would redound to the common weal. Condemnation of private lands in a makeshift or piecemeal fashion, random taking of small lot here and small lot there to accommodate a few tenants or squatters is a different thing. This is true be the land urban or agricultural. The first sacrifices the rights and interest of one or a few for the good of all; th~ second is deprivation of a citizen of his property for the convenience of another citizen or a few other citizens without perceptible benefit to the public. The first carries the connotation of public use; the last follows along the lines of a faith or ideology alien to the institution of property and the cco· nomic and social systems consecrated in the Constitution and em· braced by the great majority of the Filipino people. Strickley v. Highland Boy Gold Min. Co., 50 Law Ed. 581, cited to hoist.er the plaintiff-appellee's case, is in reality against its con· tention. In that case the finding was that the plaintiff was a "carrier for itself and others (and) that the line (right of way) is dedicated to carrying for whatever portion ·of the public may desire to use it." The expropriation in that case was thus affected with public use and public interest. Our own railroad companies have been conferred with power of eminent domain. Clark v. Nash, 49 Law Ed. 1085, mentioned in Shickley v. Highland Boy Min. Co. was a case in which the Supreme Court of 146 THE LAWYERS JOURNAL March 31, 1954 Utah had found and decided that the plaintiff was "entitled to a Manila Herald PulJlishfog Co., et al., Petitioners, '!IN. llon. Simeon decree condemning a right of way through defendant's said ditch, Ramos, et al., Resvonde11ts, G. R. No. L-4268, Janiwr11 18, 1951. to the extent of widening said ditch one foot more than its present l. PLEADING AND PltACTICE; DISMISSAL OF ACTION BY width, and to a depth of said ditch as now constructed through the COURT MOT U PROPIO.-Scdion 1 of Rule 8 enumerates the entire length thereof down to plaintiff's said land, for the purpose gl'ounds upon which an action may be dismissed, and it of carrying his said waters of said Fort Canyon creek to the land ;11::ci!i~:~1:t~~1~~n:x~!11:~sa 1;~:~~m~nt~hit~ieen~0~~ f~;dFir~~ of the plaintiff for the purpose of irrigation, and is entitled to an Instance has no power to dismiss a case, wherein no moeasement therein to the extent of the enlarging of said ditch, and tion to dismiss or an answer had been filed. Even if th<:! for the purposes aforesaid, and to have a perpetual right of way parties file memoranda upon the court's indication in to flow waters therein to the extent of the said enlargement." This which they discuss the proposition that the acticn wa;<; w11s the background of Mr. Justice Holmes' statement "thal there might be exceptional times and places in which the very foundations of public welfare could not be laid without requiring concessions from individuals to each other upon due compensation." To condemn private land and give it to another is a far cry from "the condemnation of the land of one individual for the purpose of allowing another individual to obtain waters from a stream iu which he has an interest, to irrigate his land, which otherwise would remain absolutely valueless.'' Similar rights or riparian owners are e.."<pressly recognized by our own Civil Code independently of constitutions. Attempts are made to differentiate this Court's recent decisions 2. from the nresent case. Actually the material differences which we can disce~ serve to show that there is Jess necessity for condemnation in this case than in either of the three cases before referred to, from the standpoint of the persons intended to be favored, let alone the public. In the first :Jlace, it has been seen that the land sought to be condemned here has actually been subdivided by its owners, who have spent considerable money for its improvements and in the laying out of streets, and is being offered for sale. Some loh. in fact ha,·e already been sold a.nd paid for in full or in part. The people on whose behalf this action has been instituted c~uld acquire the remaining lots by direct purchase from the defendant like those purchase.rs. In the face of these circumstances, it would appear that in resorting to expropriation, the plaintiff was prompted, not by the unwillingness of the owners to part with their property but by the inability of the present tenants or squatters to meet the owner's price. By the simple expedient. of eminent domain, the City would acquire the land for a price far below the capital invested therein and sell it at cost to help the homeless who, it is said in the appealed decision, have been forced to migrate from the provinces in search of safer haven in this city. What all this adds up to then is ceiling price for lands. If the price of Jots for sale is be· yond the reach of some people who want to buy, the City would bring down the price to the level the poor could afford. That the city authorities have no power to do such thing, however altruistic may be the motive behind their action, seems too obvious for argument. In the second place, the remaining Jots after eliminating the lots that have already been alienated, are said to be about one-half of the entire subdivisions or smaller than the land involved in the Guido case. If the intention is to expropriate the lots that have been disposed of but have not been fully paid for, along with the rest of the entire tract, the purchasers have not been made parties, unlike the buyers to whom title has been issued and who have been included in the complaint but as to whose Jots the complaint has been dismissed. The order is reversed and the action dismissed with costs of 3 · both instances against the plaintiff. Moran, Paras, Feria, Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo, Bautista Angelo, - J.J. concur. necessary and was improperly brought, this would not supply the deficiency. Huie 30 of the Rules of Cou!'t provides fo;· the cases in which an action may be dismissed, and the inclusion of those therein provided excludes any other, under the familiar maxim, "inclusio unius est exclusio alterius." The only instance in which, according to said rules, the court may dismiss upon the court's own motion an action is, when the "plaintiff fails to appear at the time of the trial or to prosecute his action for an unreasonable length of time or to comply with the Rules or any order of the court." To dismiss the case without any formal motion to dismiss, would be acting with grave abuse of discretion if not in exct!ss of j urisdiction. ID. ; PHELIMINARY INJUNCTION ; THIRD - PARTY CLAIMS.-Section 14 of Rule 59, which treats of the steps t,o be takcm when property attached is claimed by any 0U1cr person than the defendant or his agent, cout!lins the proviso that "Nothing herein contained shall prevent such third person from vindicating his cbim to the p1·operty by any proper action." What is "proper action"? Section l of Ruic 2 defines action a '> "an ordinary suit in n court of justice, by which one party prosecutes another for the enfor~ement or protection ')f a right, or the prevention or redresi: of a wrong," whi!e section 2, entitled "Commencement of Action." says tl1at "civil :'!.Cl.ion may be com~ menced by filing a complaint with the court." "Action" has acquil'l'd a wcll-dcfi1l(>d, technical meaning, and il is in ' this rcsfricted seHse that the word •·action" is used in the above rule. In employing the word "CommPncement" the rule cle::arly indicates an action which originates an entire proceeding and put~ in motion the instrum.mts of the court calling for summons, answer, etc., and not any intermediary step taken in the course of the proceeding whether by the parties themsr>lves or by a stranger. It would be strange mdeed if the framers of the Rules of Court or the Legislature should ha.ve emt)loyed the term "proper action" instead of "intervention" or equivalent expression if the intention had been just th:it. Tht> most liberal view that can be taken in favor of the attachin~ party's position is that int'!lrvention as a means of protecting the thirrl-party claimants' right is not exclusive but cumulative and suppletory to the right to bring a new, independent suit. It is siwiificant that there are courts which go so far as to t<!.ke the view that even where the statute l"Xpressly g1·ants the right to intervention in such cases as this, the statute rfoes not extend to owners of propPrty attached, for under this view, "it is considered tlrnt the ownership is r.ot one of the ess;;-ntial questions to be determined in tht> litigation behl'een plaintiff and d<'fCJ1dant;" that "whether the property b'"!!cngs to defendant or claimant, if detenr.ined, i;; c'lnsidered as shedding no light upon the qu~stion in COP - troverry, namely, that '.lefondant is indebted to plaintiff." <See 7 C.J.S. 545 and footnote N0. 89 where extracts from the decision in L<'wis v. Lewis, 10 NW. 586, leading ca!>e, are printed.) I D.; JD.; I D .. - Separate action was indeed said to be the cQrrect and only procedure contempbted by Act No. 190, intervention being a new remedy introduced by the Rules of Court 2.S addition to, but not in su bstitution of, the old process. The new Rules ad.:>pted section 121 of Act No. 190 March 31, 1954 THE LAWYERS JOURNAL ,,, and added thereto Huie 24Ca) of the Federal Rules of Civil Procedure.. <See I l\Ioran's Comments on the Rules or Court, 3rd Ed., 238, 23!).) Yet, the right to intervene, unlike the r ight to bring a 11ew action is not absolute but left to the sound dism·etion of the court to ullow. This qualification makes intervention less prefcmble to an independent action from the standpoint of the third-party clnima11ts, at least. 4. I D.; ID.; ID. - Q filed a civil action against B and secured prelimina .. ry attachment on B's propel'lies. :M: and P filed with the sheriff separate third-p. :nty claims alleging that tl1ey were the owners of the propc1ty attt>.chcd; and instead of intervening in the case, M and P filed an independent action jointly against the sheriff and Q.. The first case was pending before the branch of the court presided ove1· by Judge S, and the new action is bcfo1·e the brnnCh of the court. pr,.sidc·d O\"t:l' by Judge R. Can Judge R entertain a motion to dischal'ge the preliminary attachment in the action iiending before J udge S? Hehl: The sheriff is not holding the properties in question by order of Judge S; in -reality this is true only to a limited extent. Judge S did not direct the sheriff to attach the pi.rticnlar JH'Operty in dispute The order was for the sheriff to at.. t9.ch R's properties. He was not supposed to touch any property other than that of B, and if he did, he aetecl beyonJ the limits of his autho1·ity and upon his persori~I l'esponsi\Jility. It is true of con1·se that 1woperty in custody 1 1f the law cannot be intel'ferred wit.h without t.he permission of the proper court and property legally attached is 1 n·o1>erty in cuslodia leyis. But for the 1·eason just stated, this rule is confined to cases where the property belongs to B or one in which B has proprietary intel'e::it. When the shedff, acting beyond the bounds of his office, seizes M's and P's properties, the rule does not apply and interfc. rence with his custody is not interference with another court's order of attachment.. None of what has been said, however, is to be construed as implying that the scttinA" aside of the ·attachment prayed for in the case before J udge R should be granted. The preceding disc:ussion is mlended merely to point out that Judge R has jurisdiction to e.ct in the pl'emises, not the way the jul'isdiction should be exercised. Edmundo M. Reye:; and A11to11fo 8 u1'rcdo for petitioners .. Ba11sa and Ampil fo1· i·espondents .. DECISION TUASON, J.: This is a petition for "certiorari with J)l'elimina1·y injunction" arising upon the following antecedents: Respondent Antonio Quirino filed a libel suit, docketed as Civil Case No. 11.53i, against Apruniano G. Bones, Pt!dro Padilla and Loreto Pastor, editor, managing editor and rcnorter, respectively, of the Daily Record, a daily newspaper published in ?Jfa_ nila asking damages aggregatinrr f'90 000.00.. With the filing of this suit, tile plaintiff secured a writ of preliminary attachment upon certain office and printing equipment found in the p1·emises of the Daily Record. Thereafte1· the : Manila Hernld Publishing Co. lnc. and Pl'inters, Inc., filed with the Sheriff separate thh·d-party claims, alleging that they were the owners of the property attached. Whereuvon, the Sheriff rP.<1uired of Quirino a counterbond of P'41,500 to meet the claim of the Manila Herald Publishing Co., Inc., and another bond of P59,500 to meet the claim of P1·inters, Inc. These. amounts, upon Quirino's motion filed under Section 13, Rule 59, of the Hules of Court, were reduced by the court to Pll,000 and Pl0,000 respectively. Unsuccessful in their attempt to quash the attachment, on Octo. be~· 7, 1950, the Manila Herald Publishing Co., Inc. and Printers, Inc. commenced a joint suit against the Sheriff, Quit,ino and Alto Surety & lnsumnC'e Co. Ille., in which the fonner sought Cl) to enjoin the ~atter from proceeding with the a.ttachmC'nt of tl1e properties above mentioned a.nd (2) P45,000 .. 00 damages. This suit was docketed as Civil Case No. 12263. Whereas Case No. 11531 was being handled by Judge Sanchez or pending m the branch of the Court presided by him, Case No. 12263 fell in the brm1ch of Judge Pecson who iSsue<l a writ of preliminary injunction to the SheL·iff directing him to desist from J>rOCeeding with the atlachmcnt of the said properties. After the issuance of that preliminnw injunction, Antonio Qui1 ino filed an cx-pm·te petition for its dissolution, and J udge Simeon Ramos, to whom Case No. 122G3 had in the meanwhile been tr:msferred, grm1\.ed the petition on a bond of P21,000.00.. However J'uclgc Ramos soon set aside the order just mentioned on a. motion for reconsiderntion by the Mariila He1;ald Publishing Co. Inc. and Printers, Inc. and set the matter for hearing fo1· October 14, then c011tinnccl to October J 6 .. Upon the conclusion of that hearing, J udge Ramos rcquire_i lhe pa.rl'ies to submit memoranda on the question whether "the subject matte1· of Civil Case No. 12263 should be v~ntilated in an independent action or by mem1s of a complaint in intervention in Civil Case No. 11531." !\lcmonrnda ha,,i11g filed, His Honor declared that lhe suit, in Case No. 12263, was "unnecessa.ry, superfluous and illegal" and so dismissed the same. He held that what l\Janila Herald Publishing Co., Inc., and Printers, lnc .. , should <lo wns intervene in Case No. 11531.. The questi!;:ms th<!.t emerge from these facts and the at,1tuments are: Did Judge Ramos have authority to dismiss Case No. 12263 nt the stage when it was thrown out of court? Should the l\funila Herald Publishing Co., Inc., and Printers, Jnc., come as intel'"enors into the case for libel instead of bringing an indepenrlNlt s>..ction? And did Judge Pecson or Judge Ramos have jmisdiction in Case No. 12263 to quash the attachment levied in Case No. 11531"! In Case No. 12263, it should be recalled, neither a motion to dismiss nor an answer had been made when the decision under consideration was handed down. The matter then before the court wi1s a motion sccki11g a provisional or collateral remedy, connected with and incidental to the principal action. It was a motion to clissolvc the preliminary injunction granted by Judge Peceon res. traii1ing the Sheriff from proceeding with the attachment in Case No. 11531. The question of dismissal was suggested by J udge Ramos on a ground perceived by His Honor. To all intents and pur!\OSes, the < lismissal was decreed by the court on its own initiative .. Section l of Rule 8 em1me1·9.tes the grounds upon which an action may he dismissed, and it specifically ordains that a motion !!'I this end be filed. Jn the light of this express requirement we do not believe that the court had 11ower to dismiss the case without the rct1uisite motion duly presented.. 'fhc fact that the parties filed mcmorandu upon the court's indica.tion or order in which they discussed the proposition that the action was unnecessary and was improperly brought outside and independently of the case for libel did not su11ply the deficiency. Hule 30 of the Rules of Court 1n·ovides for the cases in which ai1 3ction may be dismissed, anrl the inclusion of those therein provided excludes any other, under the fa.miliat· maxim, friclusio iuills est exclusio alterius. The only instance in which, aC'cording to said Rules, the comt may dismiss upon the court's own motion an action is, when the "plaintiff f ails to ap11ear at the tilnfr of the trial or to prosecute his action for an ui.rcasonu\Jle length of time or to comply with the Rules or e.ny order of thc court." The Rules of Court are devised as a matter of necessity, intended to be observed with diligence by the courts as well as by the 1iarties, for t he orderly conduct of litigation and judicial rules which gh'es the court jurisdiction to act. We a re of the opinion that the comt acted with gl'a.ve abuse of discretion if not in excess of its jurisdiction in dismissing thP tase without any formal motion to dismiss. The foregoing conclusions should suffice to dispose of this proceeding f,..,r certiorari, but the parties have discussed the second question and we propose to rule u1ion it if only to put out of the way a probable cause for future conh'oversy ·and consequent delay in the disposal of the main cause. Section 14 of Rule 59, which treats of the stepi:i to be. taken when property attached is claimed by any other pe1·2ons than the defendant or his agent, contains the proviso that "Nothing herein contained shall prevent such third pel'Son from vindicating his claim THE LAWYERS JOURNAL March 31, 1954 Utah had found and decided that the plaintiff was "entitled to a Jl!anila Herald Pnblishina Co., et al., Petitioners, v:q. Flon. Simeon decree condemning a right of way through dcfe11da11t's said ditch, Ramos, ct al., Re11po11dc11ts, G. R. No. L-4268, Ja.nuary 18, 1951. to the extent of widening said ditch one foot more than its present 1. PLEADING AND PHACTJCE; DISMISSAL OF ACTION BY width, and to a depth of said ditch as now constructed through the COURT MOTU PROPIO.-Section 1 of Rule 8 enumerates the entire length thereof down to plaintiff's said land, for the purpose grounds upon which an action may be dismissed, and it of carrying his said waters of said Fort Canyon creek to the land :ri;ci1~~:~1~t~~1~~n:xt~::~sa 1:~:~:m~lt~h~~ieen~0:;/~rFir~; of the plaintiff for the purpose of irrigation, and is entitled to an Instance has no power to dismiss a case, wherein no moeasement therein to the extent of the enlarging of said ditch, and tion to dismiss or an· answer had been filed. Even if th~ for the purposes aforesaid, and to have a perpetual right of way parties file memoranda upon the court's indication in to flow waters therein to the extent of the said enlargement." This which they discuss the proposition that the acticn wa:: wa the bnckground of Mr. Justice Holmes' statement "that there might be exceptional times and places in which the very foundations of public welfare could not be laid without requiring concessions from individuals to each other upon due compensation." To condemn !)rivate land and give it to another is a far cry from "the condemnation of the land of one individual for the purpose .of allowing another individual to obtain waters from a stream in which he has an. interest, to irrigate his land, which otherwise would remain absolutely valueless." Similar right.s of riparian owners are expressly recognized by our own Civil Code independen~ly of constitutions. Attempts are made to differentiate this Court's recent decisions 2. from the nresent case. Actually the material differences which we can disce~ serve to show that there is less necessity for condemnation in this case than in either of the three cases before referred to, from the standpoint of the persons intended to be favored, let alone the public. Jn the first place, it has been seen that the land sought to be condemned here has actually been subdivided by its owners, who have spent Considerable money for its improvements and in the laying out of streets, and is being offered for sale. Some loti, in fact ha,·e already been sold a.nd paid for in full or in part. The people on whose behalf this action has been instituted coUld acquire the remaining lots by direct purchase from the defendant like those purchasers. In t he face of these circumstances, it would appear that in resorting to expropriation, the plaintiff was prompted, not by the unwillingness of the owners to part with their property but by the inability of the present tenants or squatters to meet the owner's price. By the simple expedient of eminent domain, the City would acquire the land for a price far below the capital invested therein and sell it at cost to help the homeless who, it is said in the appealed decision, have been forced to migrate from the provinces in search of safer haven in this city. What all this adds up to then is ceiling price for lands. If the price of lots for sale is beyond the reach of some people who want to buy, the City would bring down the price to the level the poor could afford. That the city authorities have no power to do such thing, however altruistic may be the motive behind their action, seems too obvious for ar~ gument. In the second place, the remaining lots after eliminating the lots that have already been alienated, are said to be about one-half of the entire subdivisions or smaller than the land involved in the Guido case. If the intention is to expropriate the lots that have been disposed of but have not been fully paid for, along with the rest of the entire tract, the purchasers have not been made parties, unlike the buyers to whom title has been issued and who have been included in the complaint but as to whose lots the complaint has been dismissed. The order is reversed and the action dismissed with costs of 3. both instances against the plaintiff. Moran, Paras, Peria, Pablo, Bengzon, Padilla, Montema11or, Reyes, Ju{Jo, Bautista Angelo, - J.J. concur. necessary and was improperly brought, this would not supply the deficiency. Huie 30 of the Rµles of Com·t provides fo;· the cases in which an action may be dismissed, and the inclusion of those therein provided excludes any othe1·, under the familia1· maxim, "inc\usio unius est exclusio alt(!rius." The only instance in which, according to sa.id l'Ules, the court may dismiss upon the court's own motion an action is, when the "plaintiff fails to appear at the time of the trial or to prosecute his action for an unreasonable length of time or to comply with the Rules or any order of the court." To dismiss the case without any formal motion to dismiss, would be acting with gre.ve abuse of discretion if not in excess of jurisdiction. ID.; PHELIMINARY IN'Jl'NCTION; THIRD - PARTY CLAIMS.-Section 14 of Rule 59, which treats of the steps t.o be taken when property attached is claimed by any 0U1er person than the defendant or his agent, coutains the proviso that "Nothing herein contain(!d shall prevent such third person from vindicating his cl:iim to the property by any proper action." What is "proper action"? Section ! of Rule 2 defines action a-; ''an ordin:iry suit in a r.f.urt of justice, by which one party prosecutes another for the enfor~ement or protection ...,f a right, or the prevention or redress of a wrong," while section 2, entitled "Commencement of Action," says that "civil ~tion may be commenced by filing a complaint with the court." "Action" has acquired a well-definPd, technical mciming, and it is in this restricted seuse that the word •·action" is used in the above rule. In employing the word ''Commrncement" the rule cl<:arly indicates an action whirh originates an entire proceeding and put,; in motion the instruments of the court calling fot· summons, answer, etc., and not any intermediary step tak1>n in the course of the proceeding whether by the parties thems!!lvcs or by a stranger. It would be stran~ mdced il the framers of the Rules of Court or the Le;:islature should ha.ve em1 )loyed the term "proper action" instead of "intervention" or equivalent expression if the intention had been just th::it. The most liberal view that can be taken in favor of the attaching p:irty's position is that i11t€rventio11 as a means of protecti?1g the thirrl-party claimants' right is not exclusive but cumulative and suppletory to the right to bring a new, independent suit. It is significant that there are courts which go so far as to t<:.ke the view that even where the statute expressly grants the l'ight to intervention in such cases as this, the statute rloes not extend to owners of propP.1-ty attached, for under this view, "it is considered that the ownership is r.ot one of the essential questions to be determined in the liti~ation between pln.intiff and defendant;" t hat "whether the property b~Jongs to defendant or claimant, if determined, i,; C'>nsidered as shedding no ligl1t upon the qu~stion in controverf'y, namely, that ".lefondant is indebted to plaintiff." (See 7 C.J .S. 545 and footnote No. 89 where extracts from the decision in Lewis v. Lewis, lO N-W. 586, leading cai.e, a re printed.) I D.; ID.; ID .. - Separate action was indeed said to be the Cl)rrect and only procedure contemphted by Act No. 190, i1tterv€ntin11 being a new remedy introduced by the Rules of Court as addition to, but not in substitution of, the old process. The new Rulca advpted section 121 of Act No. 190 Ma.rch 31, 1954 THE LAWYERS JOURNAL 147 and added thereto Uulc 24<n> of the Federal Rules of Civil Procedure. <See I l\Ioran's Comments on the Rules of Court, 3l'd Ed., 238, 230.) Yet, the r ight to intervene, unlike the right to bring a new action is not absolute but left to the sound discretion of the court to allow. This qualification makes intervention less preferable to an independent action from the stamlpoint of the third-1mrty cklimants, at least. 4. I D.; ID.; I D. - Q filecl a civil ;i.ction against B and secured preliminayy attachment on B's p1·operties. M and P filed with !he sheriff separate third-pal'ty claims alleging that they were the owners of the property ath•.ched; :md instead of intervening in the case, l\'I and P filed an independent action jointly against the sheriff and Q. The first case was pending before the brnnch of the court presided ovel' by Judge S, and the new act-ion is before the branCh of the court Jll'"Sid<-d ovc1· by Judge R. Can Judge R e11. tertcdn a motion to dise~arge the preliminary attachment in the action pending before Judge S? Hefel: The sheriff is not holding the properties in question by 01·der of Judge S; in -reality this is true only to a limited extent. Judge S did not direct the sheriff to attach the pv.rticulal' prop£>rty in dispute Tht> order was for the sheriff to at. heh R's propi;>rties. He was not sup1 )osed to touch any property othc1· than that of B, and if lie did, he acted beyond the limits of his authority and upon his persam>J responsibility. It is trne of course that property in custody {•f the law cannot be interfened with without the permission oft.he proper court and property legally attached is property in custorlia legis. But for the reason just stated, tliis rule is confined to cases where the property belongs to B or one in which B has 1iro1 n·ietary intere8t. When the sheriff, acting bcyOnd the bounds of his office, seizes M's and P's propct'lies, the rule docs not apply and interfe. rence with his custody is not interference with a11othe1· court's order of attachment. None of what has been sai'd, howe\•er, is to be construed as implying that the setting aside of the'attachment prayed for in the case before J udge R should be granted. The pr~eding discussion is m - tended merely to point out that Judge R has jurisdiction to a.ct in the pi·emises, not the way the jurisdiction should be exercised. Bdmu1 1do lit, Reye~ and Antonio Barredo for petitioners. Rcnt.'la and A m7)il fol' respondents. DEC I S I ON TUASON, J.: This is a petition for "cel'tio!'ari with preliminai·y injunction'' arising upon the following antecedents: Respondent Antonio Quirino filed a libel suit, docketed ns Civil Case No. 11531, against Apruniano G. Borres, P~dro Padilla and Loreto Pastui-, editor, managing editor and renorter, respectively, of the Daily Record, a daily newspaper J)Ublished iu ~la nila asking dama.ges a,irgregatin~ P90 000.00. With the filing of this suit, the plaintiff secured a writ of preliminary attachment upon certain office and printing equipment found in the premises of the Daily Record. Thereafter the Manila He!'ald Publishing Co. Inc. and Printers, Inc., filed with the Sheriff sepa.rate third-party claims, alleging that they were the owners of the property attached. Whereu11on, the Sheriff rPquired of Quirino a counterboncl of f41,500 to meet the claim of the Manila Herald Publishing Co., Inc., and another bond of P59,500 to meet the claim of Printers, Inc. These amounts, upon Quirino's motion filed under Section 13, Rule 59, of the Rules of Cout"t, were reduced by the court to Pll,000 and Pl0,000 1·espectively. Unsuccessful in their attempt to quash the attachment, on Octobe:· 7, 1950, the Manila H erald Publishing Co., Inc. and Printers, Inc. commenced a joint suit against the Sheriff, Quhino and Alto Surety & Insurance Co. Inc., in which the former sought (1) to e,njoin t he ~atter from JH'Oceeding with the attachml'nt of the pro1ierties above mentioned a.nd (2) P45,000.00 damages. 'J'his suit was docketed as Civil Case No, 12263. Whereas Case No. 11531 was being ha ndled by Judge Sanchez or pending 111 the branch of the Court presi<led by him, Case No. 12263 fell in the branch of Judge P~son who issue<! a writ of 1 n'eliminary injunction to the Sheriff directing him to desist from 1>roceeding with the attachment of the said pro1ierties. After the issua11ce of that preliminary injunction, Antonio Quil ino filed an cx-parte petition for its <lissolution, and Judge Simeon Ramos, to whom Case No. 12263 had in the meanwhile been lrunsfcl'!'ed, grnnted the petition Oil a bond of r21,ooo.oo. However Judge Ramos Boon set aside the ordet• just mentioned on a motion fo1· reconsideration by the Manila Herald Publishing Co. Inc. and P rinters, Jnc. and set the matter for hearing for October 14, then contim1cd to Octcbcr 16. U11on the conclusion of that hearing, Judge R:m1os require.I the part·ies to submit memoranda on the question whether "the subject mattcL· of Civil Case No. 12263 should be ventilated in an independent action or by means of a complaint in intervention in Civil Case No. 11531." l\fcmoranda having· filed, His Honor declared t hat the suit, in Case No. 12263, was " unnecessary, superfluous und illegal" a11d so dismissed the same. He held that what l\lanila Herald Publishing Co., Inc., and Printers, Tnc., should do wns i11tetvcne in Case No. 11531. The qucsti91•s the.t emerge from these facts and the atgumcnts are: Did J udge Ra111os have authority to dismiss Case No. 12263 nt the stage when it was thrown out of court? Should the Manila Herald Publishing Co., Inc., and Printers, Inc., come as intel"\•eno1·s i11to the ease for libel instead of bringing an independent e.etion? And did Judge Pecson or Judge Ilamos have ju1isdiction in Case No. 12263 to quash the attachment levied in Case No. 11531'! Jn Case No. 12263, it should be recalled, neither a motion to dlsmiss nor an answe1· had been made when the clecision under consideration was handed down. The ma.tter then before the court was a motion seeking a provisional or collateral remedy, connected with and incidental to the principal action. It was a motion to clissolve the preliminary injunction gra.nted by Judge Peceon rest-rai11ing the Sheriff from proceeding with the attachment in Case No. 11531. The question of dismissal was suggested by Judge Ramos on a ground perceived by His Honor. To all intents and purposes, the clismissal was decreed by the court on its own initiative. Section 1 of Rule 8 enumel''ltes the grounds upon which an action may he dismissed, and it specifically ordains that a motion l:l this end be filed. Jn the light of this express requirement we cb not believe that the court had power to dismiss the case without the requisite motion duly presented. The fact that the parties filed m~mornndu upon the court's indica.tion Ol' 01·der in which they discussed the proposition that the action was unnec£:ssary and was improperly brought outside and independently of the case for libel did not suJ)1 >ly the deficiency. Rule 30 of the Hules of Court. 1irovides for the cases in which an action may be dismissed, and the inclusion of those therein Jll'Ovided excludes any other, under the familial· maxim, £ncfosio i1tiw1 est exclu.sio alteriits. The only instance in which, according to said Rules, the court may dismiss upon the court's own motion an action is, when the "plaintiff fails to appear at the time of the trial or to prosecute his action for an u11reasonable length of time or to comply with the Rules 01· a.ny 01"de1· of tht> comt." The Hules of Court are devised as a matter of necessity, intended to be observed with diligence by the courts as well as by the pa1·ties, for the ordel'ly conduct of litigation and judicial rules which gives the court jurisdiction to act. We are of the opinion that the court acted with grevc abuse of discretion if not in excess of its jurisdiction in dismissing thP ease without any formal motion to dismiss. The foregoing conclusions should suffice to dispose of this proceeding fryr certiorari, but the parties have discussed the second question and we propose to rule upon it if only to put out of the wuy a probable cause for futu1·e controversy' and consequent delay in t he disposal of the main cause. Section 14 of Rule 59, which treats of the ste1ll> to be taken when property attached is claimed by any other persons than the defendant or his agent, contains the proviso that ''Nothing herein contained shall prevent such third person from vindicating his claim 148• THE LA WYERS JOURNAL Marc11 31, 1954 to the property by any proper action." What is "proper action"? Section l of Ruic 2 defines action as "an ordinary suit in a court ~~e~~s~~~c~1~~e;;:l~\~n: ~-~;~~. ~~os:,~:1t~~·c:~~~~:~ ~~-1· r~~~-e::f~~ce~ wrong," while Section 2, entitled "Commencement of Action,'' says that "civil action may be commenced by filing a. complaint with the court." "Action" has acquired a well-defined, technical meaning, and it is in this restricted sense that the word "action" is used in the al-ove rule. In employing the word "commencement" the rule clearly indicates an action which originates an entire proceeding and puts in motion the instruments of the court calling for summons, answer, etc., and not any intermediary step taken in the court of the proceeding whether by the parties themselves or by a stranger. It would be strange indeed if the framers of the Rules of Court or the Legislature should have employed the term "proper action" instead of "intervention" or equivalent expression if the intention had been just that. It was all the easier, simpler and the more natural to say intervention if that had been the purpose, since the asserted right of the third-party cla.imant necessarily grows out of a pending suit, the suit in which the order of attachment was issued. The most liberal view that can be taken in favor of !.he respondents' position is that intervention as a means of' protecting the third-party claimants' right is not exclusive but cumulative; and suppletory to the l'ight to bring a new, independent suit. It is significant that there are courts which go so for as to take th" view that even where the statute expressly grants the t·ight of inter\'ention in such cases as this, the statute does not extend to owners of property attached, for, under this view, "it is considered that the ownership is not one of the essential questions to be determined in the litigation between plaintiff and defendant;" that "whether the property belongs to def<Jnclant or claimant, if determined is considered as shedding no light upon the question in controversy, namely, that defendant is indebted to plaintiff." Sec 7 C. J. S. 54li a.nd footnote No. 89 where extracts from the decision in Lewis v. Lewis, 10 N.W. 686, a leading case, are printed. Separate action was indeed said to be the correct and only procedure contemplated by Act No. 190, intervention being a new remedy introduced by the Rules of Court as addition to, but not in substitution of, the old process. The new Rules adopted S('('tion 121 of Act No. 190 and a.ddcd thereto Rule 24 (a) of the Federal Rules of Procedure. CombineU, the two modes of redress are now SE:ction I of Rule 13(1) the last clause of which is the newly added prO\'ision. The result is that, whereas, "under the old procedure, the third person could not intervene, he having no interest in the debt <or damages> sued upon by the plaintiff,'' under the present Rules, "a third person clniming to be the ·•wner of such property may, not only file a third-party claim with one sheriff, but also intervene in the action to ask that the writ of attachment be quashed." <I Moran's Comments on the Rules of Court, 3rd Ed. 238, 239.) Yet, the right to intervene, unlike the right to bring a new action, is not absolute but left to the sound discretion of 'the court to allow. This qualifica.tion makes intervention less preferable to an independent action from the standpoint of the claimants, at least. Because availability of intervention depends upon th<r court in which Case No. 11531 is pending, there would be no assura.nce for the herein petitioners that they would be permitted to come into that case. Little reflection should disabuse the mind from the assumption that ·an independent action creates a multiplicity of suits. There can be no multiplicity of suits when the parties in the suit where the attachment was levied arc> different from the pa.rties in the new action, and i,:o are the issues in the two cases entirely diffrrent. In the circumstances, separate action might, indeed, be tht more convenient of the two competing modes of redress, in that intervention is more likely to inject c0nfusion into the issues between the parties in the case for debt or dama.ges with which the> third-party claimant has nothing to do and thereby retard instead of facilitate the prompt dispatch of the controversy which is the underlying objective of the rules of pleading and JJractice. That is why intervention is subject to the court's discretion. The same reasons which impelled us to decide the second que':I~ tion, just discul:!sed, urge us to take cognizance of and express au 011inion on the third. The objection that at once suggests itself to entertaining in Case No. 12263 the motion to discharge the preliminary att&.chment levied in Casc> No. 11531 is that by so doing one judge would intel'ferc with ancither judge's actuations. The objection is superficial and will not bear analysis. It has been seen that a sepa.rate action by the third-party who claims to be the owner of the property attached is appropriate. If this is so, it must be admitted that the judge trying such action may render judgment onlering the sheriff or whoevr!r has in posH'l!Sion the attached property to deliver it to the plaintiff-cla.imant N desist from seizing it. It follows further that the court may make an interlocutory order, upon the filing of such bond as may be necessary, to release the property pending final adjudication of the title. Jurisdiction over an action includes jurisdiction over a.n intci:locutory matter incidental to the cause and deemed necessary to preserve the subject matter of the suit or prot<'ct the parties' interests. This is self-evident. The fault with the rcsp011dcnts' argument is that it assumes that the Sheriff is holding the property in question by order of the court handling the ease for libel. In reality this is true only to a limited extent. That court did r.ot direct the Sheriff to attaeh the particular property in dispute. The order was for the Sheriff to attach Bol'!'es', Padilla's and Pastor's property. He was not :~~:.:s:~dtoif t~~echdi~~Yh~n:~t:~ty .:::~~ ~~:n li~~~! ~~ .t:seau~~~e~:; and upon his personal responsibility. It is true of course that property in custody of the law ean not be interfered with without the permission of the proper court, end property legally attached is property in custodia fegis. But for the reason just stated, this rule is confined to cases where the pro~ perty belongs to the defendant Ol' one in which the defendant has proprietary interest. When the sheriff acting beyond the hounda of his office seizes a stranger's property, the rule does not apply and interference with his custody is not interference with anoth<'r court's order of attachment. It mar be argued that the third-party claim may be unfounded; but so may it be meritorious for that mattE>r, Speculations are • however beside the point. The title is the very issue in the case frr the recovei·y of property or the dissolution of the attachment, and pending final decision, the court may enter any interlocutory order calculated to preserve the property in litigation and protect the parties' rights and interests. None of what lias been said is to be construed as implying that the setting aside of the attachment prayed for by the plaintiffs in Case No. 12263 should be granted. The pre>ceding discussion is intended merl'ly to point out that the court has jurisdiction to act in the premises, not the way the jurisdiction should be exercised. The granting or denial, as the case may be, of the prayer for the dissolution of the attachment would be a proper subject of a new proceeding if the party adversely affected should be diSsatisfied. The petition for certiorari is granted with costs against the re!'pondents except tho respondent Judge. M01·an, Paras, Ferin, Pa.blo, Benyzon, Padilla,· Montemayor; Rtyes, Jugo, Bautista Angelo, J.J. concur. (I) Section I. When P ropeR.-A person mny. At: ny Pd:iW or o trinl, !ic 1'<'r· 1n'lled lw the court, in it• d h~lion, to inuirvcne in r,n ""'ion if;,~ h11s leg:il ln• tcrqt in the matU!r in liti1mtion or ln the suce~s of <'ither of the r·11...;ie1. or 11n ln· t<ir,~t as:rainst both. or when he la llO eituuted 111 to l\fo aoVHllCI~ nf~..:r.tr•I by a ,Jlat1·i· bl'tion or o!hcr dl&POBltion <.of 1•ro1 ierty In the custody of til~ ~Ollrt <•t of an (>lfi~r thereof. RECOGNIZE THEIR RESPECTIVE RESPONSIBILITY <Continued from page 111) (which, by the way, is repl'esentcd not only by the Supreme Court but also Ly the Court f)f Appeals, Court of F irst Instance, municip::;,I and justice of the peace court!', and even such' other commissions and boards as are exercising quasi-judicial powers). As tr.is Convention closes and the conventionists return to their own localities, it is my fervent hope and pica that all concerned will' evc1 · be responsibility <'Onscious. Happy New Year to all. Ma.1·ch 31, 1954 THE LAWYERS JOURNAL 149 REPUBLIC ACTS <REPUBLIC ACT NO. 8,l7) / AN ACT 1-'HANSl"ERHlN_G THE MEDICAL AND ~TAL SERVICE8 TO THE DEPAHTl\IENT OF EDUCATION. /Jl it cm1rtc<l by the Senn.I" 1mcl Hou1Jr of RepYesentatives of the Philippines in Congress a~sem/Ji<d: · - · SECTION L 'fhc Medical and Dental Services i11 the Public Schools which iS now fUnctioning as a division of the Bureau of Health, since January first, nineteen hundred aud fifty-one, is herebv transferred or i·eturned back to the Department of Education a~ a division of that Department where it originally belonged from uineteen hundred and forty-six to nineteen hundred and fifty: P-ro. 'l.·iclecl, That th>? supervision of hygiene and sanitation shall be exercised by t.he Department of Health. Sec. 2. All laws, acts, exccuti\'e orders, or p:nts thereof inconsiitent with JWO\'isiou of this uct are hereby repented. Sec. 3. This Act shall take effect upon its approval. Enaett>rl on May 2~;, 1%3, withcut the Executive e.pproval. <REPUBLIC ACT NO. 837) AN ACT REORGANIZING THE GENERAL AUDITING OFFICE Be it. emwicd by the Se1w!e oml House of Rp1·c11e11tntive!I of the Pl1ilippiueR hi Co11grfss Mscnibfecl: Section 1. The Auditor General is hereby authorized to reorganize with the npproval of the President of the Phili1 >pines, the General Auditing Office within six nionths from the dnte of approval of this Act. Sec. 2. The reorganization he1·ein 3.uthorized shall be done within the limits of the· appropriation of the General Auditing Office as pt'O\'ided in the General Appropriation Act in force at the time of such reorganization. The Auditor General, is howeve1", a-utho1·ized b use sn\'ings from said appropriation to cafry oul the provisions this Act: Provided, Tha.t the Deputy Auditor General shall receive an annual salary not exceeding twelve thouFand pesos and each head of department and his assistant, not C!'Ceeding seven thousand two hundred 1>esos and six thousand pesos, l:iJ!:!pecth"ely. Sec. 3. Effectivf' u11on the ~ppl'Oval of this Act, lhe safades of provincial and city Auditors shall be paid in the same manner as they are paid now from provincia l and cily funds, as the case may be, at rates not less than those fixed by la.w for provinrial and city t reasur(>rs in the respective places where they a1·e appointed. Sec. 4. The reorg~nization to be made by the Auditor General pursuant to the provision3 of this Act shall be reported, thrt>ugh the Pr(;sident of the Philippines, ~o the Congress not later than thirty days from the de.te it becomes effective and shall be valid and subsi:;tin!r until Congress shall provide otherwise in its next J'(;gular session in connection with the annual appropriation law. Sec. 5. All law!- or perts of laws which are or may be in conflict with any <ii. the JH'ovisions of this Act are hereby repealed. · Sec. ·G. Tl1is Act shall take f'ffect upon its approval Approved, Marcl1 20, 1953. <REPUBLIC AC1' NO. 945> AN ACT TO AMEND SECTION ONE THOUSAND SIX HUNDRED AND FIFTY-NINE OF THE REVISED V ADMINISTRATIVE CODE, AS AMENDED. Be it er.rtctcd by the Senate and Howie of Rpre.9entatwe11 of the PhiliPpines in Congress assembled: Section l. Section one thousand six hundred and fifty-nine Of the Revised Administrntive Code, as amended, is hereby furth(>r amended to read as fellows: · "Sec. 1659. Chief Officials of Office of the Solicitor Gener'l/. .._The Office of the· iiolicitor General shall have one chief to be knowll as the Solicitor General whose salary shall be twelve thouSand pesos pe1· annum. and shall have the ra.nk of an Undersecretary of a Department. He shall Ix:: assisted by one First Assistant Solicitor General whose salary shall be ten thousand pesos pe1· annum. When the Solicitor Gcnersl is unablf! perform his duties 01· in cas~ of a vacancy in the office, the First Assistant Solicitor General shall temporarily perform the functions of said officer, or, in his absence, the next Assistant Solicitor General who is senior in the service. There shall also be four Assistant Solicitore General each of whom shall 1·eceive a salary of seven thousand eight hundred pesos pei- ammm, and twentf-four Solicitors whose salaries shall bo as follows: ··«,> Foul· Solicitors, six thonsand six lnrndred pesos per an. 1.11,n each; "(b) Four Solicitors, six thousand pesos per mni1rni ~ach; "(c) Five Solicitors: five thousaml four hundred pesos per a111111m each; ''(d) Five Solicitol's, five thot1sand one lnindred pesos per 1 in. num each; "(e) Six Solicitors, four thousand eight hundred pesos per aimmn each. "The qualifications for appointment to the posistion of Solicitor General, the First Assistant Solicitor Genera.I and the four Assis.. tant Solicitors General shall be the same as those prescribed for Judges of Courts of First Instance and those of Solicitors shall be t.he same as those prescribed for provincial fisca~' Sec. 2. To carry out the put•poses of this Act and in addition to such sum n.s may have been provided for under current appropriation there is hereby appropriated out of any funds in the National 'freasu!'y 119t otherwise appropriated the amount of twenty-two thousand nine hunch·ed pesos for the fiscal year nintecn hunclreit nnd fifty-four. Sec. 3. This Act shall take effect on July first, nineteen hundred and fifty-three. Approved, J une 20, 1953. / <REPUBLIC ACT NO. 912> AN ACT TO REQUIRE THE USE, UNDER CERTAIN CONDITIONS, OF PflILIPPINE MADE MATERIALS OR PRODUCTS IN GOVERNMENT PROJECTS OR PUBLIC WORKS CONSTRUCTION, WHETHER DONE DIRECTLY BY TH E GOVERNMENT OR AWARDED THRU CONTRACTS. B.· it e1wcted by the Se11ate and House of Rep1·esen~otive1t of 1/11' Philippine.<1 in Cot1gre1t8 m~sembled: SECTION 1. Jn construction or repair work undel·taken by the Government, whether done directly or thru contract awa1·ds, Philippine made materials and products, whenever available, pra::ticablc and usable, and will serve the purpose as equally well as foreign mad(> products 01· materials, shall be used in said construction or repair work, upon the proper certification of the availability, practicability, usability and dmability of said materials or products by the Director of the Bureau of Public Works and/ or his assistants. SEC. 2. For lhc purpose of carrying into effect the purposes of this Act, the Director of Public Works shall prepare <'r cause to be prepared, from time to time, a list of building and coustrnctfon materials and products made in ihc Philippines that are available, d1:1rab:e, usable a11d practicable for construction and building purposes. Sr.c. 3 . No contract may be awarded under the provisions of ll:is Act unless the contractor agrees to comply with the i·equirements of this Act, and a conll'act already nwa}'(le<l may be rescinded fo1· unjustified failure to so comply. SEC. 4. It shall be the duty of the Director of Public Works and/or hin assistants, including the district engineNs, to see to it that the requirements of this Act are faithfully complied with by the persons ccncerned, and failure on their part to do so shall subject them to rlif'-missal from the govemment ser\'ice or other clisci1..linary action. SEC. 5. The DirectOl· of Public Works, s~bject to the approval of the Secretary of Public Works and Communications, is hereby empowered to promulgate such rules and i·egu}ations as may be neC(>ssary to cany into effect the pur1>0scs of this Act. SEC. G. This Act shall take effect upon its approval. Approved, J une 20, 1953. JOO :l'.llF: LAWYF.RS Jour:.:-IAL Mnl'ch 31, 1954. MEMORANDUM OF THE CODE COMMISSION <Conlinlwl fnnn the February Issue) This memorandum comments upon proposed amentlnwnts tc Book Ill of the new Cvil Code. F,xccpt in regard lo succession, tile nl"ticles are consecutively dcalth with, tlrns: Arts. 712, 719, 721, c;tc. In the part concerning succession. the amendments are com .. mentcd upon by placing togefher those that are proposed by the same propon1::nt. Moreover, tho.;;c suggestions not coming from either Congressman 'folentino or Justic~ .1. B. L. Reyes are discussed tc.gcther. ARTICLE 712 J ustice .J. B. L. Rey1::s cdli<'iZCf' the placing of donation in Book III as 011e of the modes of acquiring ownership. The Cod~ C"lmmission knew tlml there were civilists v:ho disM agreed with this a.n:rngemcnt, amo11g them Sanchez Roman. However, aftei cal'efu\ consideration, the Commission pc1·fe1Tcll to retain the :ll'rang:emrnt of the Spanish Civil Code, for these reasons: 1. The 1"easo11ings of Sm1chez Roman did not quite convince the Commission. 1t should be noted that the Commission adopte<l the !'olution of Sanchez Roman conceming i11tellcctual creation uid prescription :rnd therefore induded th(Se two .mbjeCts among the modes of acquiring owne1·shi1}. However, in regard to donation, Sanchez Roman dicl not quitr convince the Commission, and pref~rred the reasons of Manresi; found in Vol. 6 of his comm~n taries where he discusses the grounds for not placing d'>nation among the contracts. Manl'esa says: "Atendiendo a estos preccplos, Ins donacionf·s entre vivos sen indudatlemente contratos, porque hay concurso de voluntades, hay objeto y causa. Scin contrntns f.!'ratuitos o <le purn ben'!ficencia, cuyo objetn es la dacion de unn cosa o de un dcr<'<!ho sobre esa cos.'\: "Pero este argumento es de aquellos que, pro probar denrnsiado, nada prueban contra la idea de! lcgisla<lor, al se1mrar la donacion C'omo un modo es11edal de adquirir. Coi\sentimiento, objeto y eausa hay en las sucesiones, en el matrimonio. et cet'era, y podrian estimar:;e tambicn contratos dC'ntJ'O de estos limnamentos generales que tanto abat·can. El Codigo 110 niega que pucda rstimarse como contrato la donacion, pcro la estudia aparte y la considcra como un modo especial de adquirir, p01~ue no ha podido menos de observar que son clemasiadas las especialidades que l)resenta respccto a los dem.'.ls contratos ordinarios, especialidades que la acercan bastante a las sucesiones. "A que obcdece esa esrrcialidad? La unica diferencia, dice Savi~y, entre el contrato y la donacion, consistr e11 quc aquf' puede aplicarse a toda clase de relaciones de derecho, mientras quc esta aplica solamente al dcrecho de bicnes. Pero no es esto solo : no ohedece le especialidad de la donacion a que sea su objeto la dacion de una cosa, y, por tanto, modo de adquirir y trnnsmitir la propiedad, porque lo mismo ocune en la compraventa, la permuta, el censo, etc., y a estos actos se Jes llam& contratos y sc incluyen cc.mo un modo distinto de transmiti!' r de adquiril'. No obedece tempoco la especialidad a que constituyan las donaciones un acto de pura libcralidad, porque cl mand.::ttario que administra gratuitamente los bienes de un amigo o pttrientr, el gcstor de uegocios, en ii:ruale.J casos. el quc voluntal'iamente y sin premio ni interes alguno prcsta un servicio cualquier'.I., obrr:n t.ambicn gratuit~.mc>nte y por mera libcralidad, y, sin embargo, cstos octos son tratados nor el Codigo entrC' los <'Ontratos. "El caracter especial d<' las donuiones nace de bs dos circunstancias reunidas a quc nos hemos referido, no de una sola de ellas. Notese que los actos gratuitos <le que hcmos hech:) mendon no constituyent modos de adquirir el dominio uo, consisten en la dacion de cosas. Notese que los otros modos de adquirir que, como contr:?.tos, estudia el Codigo, tienen todos m1a causa onerosa o remuneratoria. Notese, por ultimo (articulo 1,1871 que la condonacion, unico acto quc puede reunir los exprPMdos cRractcres, sigue las reglas de las donacio!leS, como que es una. verdadera rlonacion. " Hay, pues, un grupo espcci:i.l de actos, o ei se quiei-e de contratos, que a l mismo tiempo tiencn una causa gratuita y constituycn un modo de adquirir. Estc grupo esta formado exclusivamente por las donaciones. "Pero tambien es un modo de adquirir, con causa puramente gratuita, la sucesion tcstada o intestada. Luego las donaciones titJ11.en 11111J. naturaleza muy semejante a las sucesiones, I'nes de csta casi identid11.d de naturctleza, de esta estrecha rclacion entre ambas instituciones, 1iace fo1·zosamente y contra la volimtarl de todo legisludor que intendra. desconocerlo, la. especialiclad de la dmwcion cQmo modo de adquirfr. "Cierto que las donaciones producen sus efectos en \'ida. del donunte, y en las sncesiones csos efcctos se producen poi· la mucrte <lcl que dispone c fo los bienes; ciel'to que, como una eonS<.'Cuencia de los dicho, es inevocablc la donacion y puedc revocarse el testamento hasta 1.::t hora dfl la muerte. Pero ])tecisamcnte por eS(IS motivos. 2..mbii~ instituciones sin deju de ser semajantes no son identicas. Si bien el heredero, continua a veccs la personalidad de causante no hacemos mPncion de est.a circunstancia ponrne no es till caractcr distinto todas las sucesiones, y quc los legatarios y aun los mismos herederos, si aceptan la herenci2 a beneficio de invent-ario. suceden por testamento y 1 w confuden su pcrsonalidad con la del difunto. "Desde el momenta en que hay actos poi· los que se transmite ~ratuibmente la propiedad en vida, y actos por los que gratuitamcnte sc transmite In propiedad para despues de la mucrte, la ley tiene que impo ... er a unos y otros actos i~uales Jimitaciones. Como va a p1·ohibl'r a 1tn testador qite disponga libremente de s11s bienes para despnes de sit miterte. si consif-mtc 1ue se despre11dr1 de dlos rrm.t1dtame1de durflnte sit 1:ida? 0 ha.bin que supr imir las lcgitimas, o era necesario limitar las donaciones. "Ante esln tiecesidncl, las re(llas ge1ierales de fas contratos 110 podian sevir para fas donaciones. Y no sc diga que cada contrato tiene su modo de ser esnecial. dcbiendo fonms~mente seguir reglas distintas la compraventa que la sociedad, el mandato qui! la fianza, etc., porquc ni nos i·eferimos solo a las rcQ'\as esprciales. ni contrato a!i::-mio, como la donac10n, es. <lei mismo modo qne las sucesiones mndo de adquirir pm· titulo gratuito. ' 4Asi es que emneznmos por notar que muchos quP pueden contrnta.i· no nne>den hncer donacioncs, y qne, en camhio, puede>'l ser tfnne.tnl'ins y nun accntar <lonacionPs muehos quP no rine>den co11tratar. Raio el primer aspecto, cnmo van a .iustifica1· e>l padre o el tutor la necrsicb•d o la utilidnd de (]tie el hiio o el mcnor nal!'llTI don9.cion eimnle rle sus Menes? Baja el !'Cg11ndo, basta leer los articulos 62!'i y 626 nara convenecrse de one la can.<1cidad para :Hfquirir nor donaeion se acerca mas a la capacirlad pari:i. adquirir por here.,cia o le17.ado, y aun tiene menos tn1b<1s let?alrs. porque hay menos temor df" que sea oYLri·osa la adquisicion. "('ontinuamos vien<lo nue um>, pc1·sonn nue>de contratar snh,·e todns sns bie>nes. riero no torlos rmerle danarlos. y que nadif" nut'rle cl"r ni recihir rior via rle dnnacion mas de lo que pue<la dar recibir por tcstamento. "Vcmos. por ultimo. la esnecialidad de las reglas de b donacil'ln para. su resrision en el caso de que haya frande de acreedore>s. sus especinles causas de r cvocacion, su r+"dnccion por inoficiosl\s. y, en fin. las reglas que Hemm el Codi"'O ('TI el tral:ido de los sucrsion, y no se anlican a los contratos, sino soln a JP.~ dnnncio""~ de las nue ofrecen eiemnln los articnlos 811. 812 817. al 820, 825, 869, 968, 1.035. 1,039. 1.040, 1044, 1()46 a 1.048, etc. " Y como todas esta reglas no snn caprichosas, como ohcdecen a una verdadera necesidad y a.l'l'ancan de la naturaleza mis1nn di! h domicion, 110 hay ma~ remedio que reconoc"!r con cuanta ruzon el Codi~ espaiiol, siguie11d0o el ejemplo de otros muchos, h.:?. considc1·ado a las donaciones como un modo esoecial de> adqui1fr y las ha estm!i~do sep~radamente de Jos ce>ntratos." ltfa.rch 31, 1954 THB LAWYJmS JOURNAIJ 101 2 Aside from the fo1·egoing con!!idcl'ntions of ?o.'la1Hes~1, the Code Commission had in mind thC' distinction between actos ;uri~ dicos and contrn.tos. The former arc more under the control of Jaw tho.n of the will of the parties. Therefore, in adoption and marriage, for example, the parties arc not free to ap:rec upon the conditions of the marriage or adoption b~·ause the law steps in for i·easons of public policy to fix SJJedal conditions :rn<I lirnitalionP. The same thing occurs in regard to don2.tion; thus there is a limit as to the amount t.hat may be donated (Art. 750 to 752), incapacity to succeed by will is applicable to donations inie1· 'Vivus (A1·!. 740); donat ions have special wsys of revocation and reduction (Chap. IV, Title IJJ, Book III. ) in this conJlect.ion, Sanchez Roman himself, in spite of his reasonings, had to defitl<' donation ns "un acto de liberalidnd" and did not USC' the word "contrnto." He also admits that: "x x x si pucdc tener cl ucto indcpendientc existcncia jul'idica por In sola \"'lhmta.d dcl donant.e, y si bajo cste punto de vista, en sit orige11. la donacinn, coma consccucncia del dcrecho que tcuemc.s a disponcl· de lo quc cs nuest.l'o, ei. unica y exclusivamente un acto de nusetra libcrrima vohmtad, sin tener para nada en cuento. el consentimicnto de\ donatario, y m~ este sentido hemos co;isid11rado la cfrmacio1i en ~encral, ai <letcrminM sit 'wt1o·alez1i x x x." 3. But Sanchez Roman says that.: "una ,·ez conClrrricndo las dos volunt.a<les de donante, y donatario 1ior la uccptacion, csc acto unilateral vienc a com·crti1·sc en una relacion contractual, y la do11acion de simpla acto de bcndiciencia o libcrnlidad, transformasc en un contrato," Our comment is that the 1 1crfection of the· act of liberality by the donee's acceptance does not give rise to v.. contract but to a donation. 4. Lastly, there is something to be said in favor of Nn1>0leon's view that "f>l contrato impone cargas mutuas a los dos cont1·atantes, y por ttuito esta exoresion contrato 1 10 puede conveni!· a la donacion." A pm·e .gift being a shccr :let of generosity im1 ;oses no obligati011s on the doncc. Therefore, in the common nccept:mce of the word "contract," it can not properly be applied to a simple donation. , With rt>gard to the proposal of Justice Reyes that the title of t radition- should .be dealt with separately and not merely unde1· the Title on Sales, that suggestion should be discussed in connection with t he proPosed amendment adding Title VI 011 traclition. Title I . - OCCUPATION J ustice Reyes says that the Code fails to make an exception of goods found and sakagcd at sea, which ni·e governed by speci:i.l rules. <Salvage Act). He further says that the Code also fails to clarify t.he situation of the movables cast ashore by the seu waves and those £unk nnd lying in the water, at the bottom of the sea or rivers. Our comment is that, as to the ffrst point, this matter is governed by the Salvage Act P.nd should not be coYered again in the new Civil Code. With regard to the second class of cases, they should be the subject of special legi~lation. (See our comment under Art. 507.l J'itle II . - IN TELLECTUAL CREATION J ustice Reyes says that paragraph 4 should be & mended so al!I to read: "(4) . The discoverer or inventor with regro·d to his discovery or invention," omitting the words "scientist or technologist" in order that by the ejusden generis rule of interpretation t he sentence ma.y not be limited to technologically trained men. \Ve nre sorry to disagree with the proposed amendment hecause th& phrase "any other person" is broad enough to cover a11y other person. The1·e is no ground to fear that if any layman, not a scientist, shOuld make a scientific discovery any cout't would deny him the right to have a. patent just because he is not a scientist. Moreover, there is nothing in the !aw on Patents which limits the 1:ight to give a patent to a scientist or technologist. In this connection Art. 742 provides that special Jaws govel'n copyright and pat.ent. ARTICDE 724 Justice Reyes says that this article should include trade-mar..:s and trade-names. The suggestion is accepted. Moreover, the word ''service-mark" should also be included. As amended, the a rticle should read as follows: · )5~ 'ART. 724. Special laws govern copyrights, patents, tmdP.ma.rks, service-marks and tn1de-names." Tit/I' Ill . [JONATJON ARTJCI.,E 725 J ust.ice Reyci; i·eiterntes his suggestion that this entfre tit.le should he transfened to nn appropriate place in Book JV on Obligations ~rnd Contracts. Reference is made to our comment under Arl. 712. ARTICLES 73.'l aml 754 Justice Reyes suggests the amr.ndment of Art. 733, by caning <lonations with a bUl'den, onerQllS < lonations, so that thP. 2.rticl.-. will not conflict with Ari. 754. There is no cont.radiction b1:tween Ads. 733 and 754 i:.ecause they refer to the same kind of donation with · a bu~den, although the donntioa in Art. 733 is looked at from the sta.ndpoint of the c'l."1se, while the donation in A1-t. 754 is vicw€d from the standpoint of effect, In both articles the thing doila.ted ii:: wo1·th more thnn the burden, Castan diVidcs donations on the basis of their cause, into simple and remuncrntory; and on the l.iusis of theh· effect, into pure, conditional and onerous. The vr:ry wording- of Art. 733 show;; lhnt a remuncratory donation may ca.i·ry with it a burden, that is to say, a donation motivated by a <lesi1·e to l'Q\\ al'Cl suvice;; n;ay impose a burden on the donce. This makes Art: 733 i:ntirely Nmsistent with Art. 754 where an onerous donation, Yiewed from the st::mdpt.i11t of its effect, also implies a. burden. In suppo1·t of the foregoing, we quote Caslan's "Dcrecho Ci\'il Espfliiol," iu his ex1 iositio11 of "D<.macion" < vol. 3, Jlp. !>6-~9): ":-:! . Sus rlaseS.x x x. "B, Por sn ca11sa o motivo. - Se dividen a este pccto las donaciones en simples y 1·emuw.eratorias. Son simples las que no reconoccn otras causa quc la. libel'alidart del donante; r remmicratori({s acqucllas a que alude el art. 619 del codigo civil, nl decir que cs tambien donncion la que se hace n una pc1·sona. por sus mc1·itos o por los sel'vicios prcstados al do. nante, siempre que no constituyan deudas exigi.bles x x x. "C, Por sus efectos. - Se dividen las donaciones en purns, condicionalis y onerosas. El Codigo se refiere a estns ultimas al d('cir quc son tambien clonaciones aquellas en que se imponc al donat2.rio un g:rnvamen inferior al valot· de lo donndo Cal't. 619), y quc las donaciones con causa onerosa se rigen por las reglas de los contratos, (art. 622L Pero esta nltimn disposicion hay qw~ 1mtende1· scra solo ar1ic<tble a las donacionrft fmpropm:J que fmpongan un g1·avamen equivale11tc at 1utlo1· de lo donado; p1tes rn las otras es natural q1 1e al excedentc de l<i donacion sobre el grrwamente se le a71liqmm las 1·eglas de la donacion." Our comment is that this la.st is a donacion r c'111me1·<itoria by its c<msa or tnoti'vo. AR'f/Cl,E 797 Congressman Arturo M. Tolentino suggests that Art. 737 be nmended so as tr, read as follows: "The dono1· must have th1; capacity to donnte at the time he mclt~s the donation and when he learns of its acceptance." Atty. R. l\1. Jalandoni also makes the same proposal. The reason adduced is that inasmuch us undel' Art. 734 dnne.tion is perfected from the moment the donor kncws of its ucceptance by the donee, therefore, the capacity of the donor r 1ust also exist at the said moment in order that the donation may be valid. However, the Code Commission docs not believe that Art. 734 should require the capacity of the donor at the time of t he accept. ance by the donec is conveyed, because if, for exr.mp!e, the donor ha.s become insane, his guardian's k.nowledg-c of the acceptance should be sufficient. In the case the donor should become a bank1·upt, the knowledge of the acceptance communicated to lhe assignee should like be sufficient. J ustice Reyes proposes that it should be made clear that bankruptcy or civil interdiction of the donor after making the donat.ion doc!'! not bar the effectivity. However, it is quite clear from the wording of the article, t.hat if the donol' loses liis capacity after making the donation, that does not rescind t h;:i donation, because it is cxprt!ssly stated thnt tht' donol''s capacity shall be determined a.s of the time of the niakin9 Qf t he donation. In other words, subsequent incapacity dees not <iffect the donation. THE LAWYERS JOURNAL J\l;nch 31, 1954 ARTICLE 799 Justice Heyes says that the word "void" should be changed to "voidable". However, the intention of the Code Commission is to make these cionations void from the beginning, because they are immoral or ngainst public policy. The fact that the last paragraph refers to an action for declaration of nullity does not mean that the donation is only voidable, because even if a contract is void from the beginning, a judicia.l declaration to that effect is necessary. Art. 1410 provides: "The action or defense for the declaration of the inexistencc of a contract does not prescribe." In this connection, A1't. 1409 provides: " The following con .. tracts arc inexistent and void from the beginning: "xxxxx . . "(7). Those ex1111ssly prohibited or declared void by law." The donations ii1 Art. 739 are among the transactions prohibitP.rl or declared void by law.' This is clear from the fact that the first lino! of Art. 739 clearly states, "Tl1e following donntio1ls shall be void.'' ARTICLE 741J J ustice Reyes proposes that the words "and vice verso!' shonld be added to .iccord with Art. 1028. The latter a1·ticle P\'Ovidcs: "The prohibitions mentioned in article 739, concerning donations inter vi11011 shall apply to testamen~P.ry provisions." In view of the clearness of Al't. 1028, the words "and vice versa" need not be added to Art. 740. ARTICLE 74£ There is no vagueness in Art. 742 because Arts. 311, 316 and 32(), clearly state who represent the child. · ARTICLE 7.$9. Last Par. Justice Reyes asks who is supposed to make the notificl!tion t<' the donor that his donation has been accepted. He states that it is doubtful if notaries he.ve the power undCr the Administratiw• Code, to make the notification. The last paragraph .of this article states lhat the dono1· shall be notified "in an authentic form." The notifica.tion need not lw. done by the notary; it may be done by the donee himself in writing signed by him, transmitting the separate instrument of acccpta:nce, which shall be in a public document, accordil)g to paragraph 2 ARTICLE 750 Justice Reyr.s p1·oposes th;1.t donations exceeding, say P500, be approved by the court in order to be valid. He says this would ioave ulterior litigation. The Code Commission believes that such requirement would be an expensive red-tape and would hamper the generosity of bene:actors. Before the donation is approved, creditors and heil'S would appear a.nd. make objections which may not be well founded With regard to the possibility of fraud on creditors, if an:v person wants to perpetrate such fraud, he usually makes a simulated sale of his prope1'ly. Therefore, to he logical, it should a!s'.l be required that all sales shall be appl'Oved by the court, becausl' they may be intended to defraud the creditors. We believe that the rcquiremment herein proposed by Justice Reyes will be an un<l,ue interference with the citizen's freedom of action. If he is violating the law, the st:;.tutes both penal ar.d civil are sufficiently comprehensi\·e to make him suffer the consequences. AR7'1CLE 159 Justice Reyes suggests that the last part of the first. pa.ragrapl. bi'! amended to read: "There shall be no right of accretion among them by reason of p, donee's i11capetcity, refuml or frtilure to accept the dt»mtin11, unll'ss the donor has otherwise provided." His reasons P.re as follows: 1. That predecease is not applicable unless the death takes place before t!le donation is perfected. 2. It is rare to meet an express repudiation of do11ations; most of the time, the donee will simply fail to1accept. With regard to the first reason, inasmuch a.s J ustice Reyes himself admits that dPath before the donation is perfected may give rise to accretion, therefore, predecease is one of the possibilitics foreseen in the a1ticle. The first paragraph, therl'fore, urovides that in such a case there shall be no right of a.ccretion, uniess the donor has otherwise provided. With regard to the second reason, failure to act is an implied repudiation. ARTICLE 760 Pa-r. 9 Justicr. Reyes asks why adoption in paragraph ~ should refer or.ly to a minor child, whereas Art. 337 permits adoption of a person of legal age. The intention of the Commission is that the subsequent adoption of a minor child f!hould be the only case where adoption may cause the revocation or reduction of the donation, for these reasons: 1. The adcption of a person of legal age is usually not to have an heir but only for purpose of expressing the adopter's affection. 2. The subsequent adoption of a person of age should not give the latter a chance to ask the donee for the revocation or reduction of donations previously made, because this would give him 1:.11 opportunity to meddle with, or inquire into, past generositiea of the adopter. The Code Commission believes that such would be a reprehensible a.ct of interference •m the part of the adopted person. ARTICLE 761 J u!'=tice J~C"y~s pr(lpnscs that the foul'th and fifth lines of this article be eliminated, that is to say, "taking into account the whole estate of the donor at the time of the birth, appearance or ndoption of a child." The question involved is whether the basis of computation should be the prQperty of the donor a.t the time of the birth, appearance or adoption of a child, or at the time of the donor's death. Justice Reyes says that it should be the latter. But inasmuch as the :iction is wmally brought during thl' lifetime of the dcnor, there is no way of computing his property at the t ime of his death, therefore, the only way to have an approximate cc·mputation is to take into account the prc..perty of the donor at the time of the birth or appearance or ado?tion of the child. But, Justice Reyes says, that testator may acquire sufficient assets after the nppeara.nce of the child to i·ender revocation or reduction of the donation unnr.cessary. Tn such a case the revocation may be rescinded or the l'eduction modified upon petition of the donor. There is some similarity in this way of computation to the case of the cvmpulsory dowry unC!er the olrl Civil Code. In ae-. cC'rdance with Art. 1341 of the vld Cocle. the compulsory dowry. consisted in one-half of the presumptive strict Iegitime. ARTICLE 762.769 Justice Reyes proposes the elmination of these two a.rticles for the reasons he stated in Art. 761. Inasmuch ns the reasons have been refuted, these tv.·o articles should be retained ' ARTICLE 'lfi9 Atty. R. M. Jalandoni proposes that th<' words " or from his legitimation. recognition" be eliminated from Art. 763 became, hl• says, the mere birth of a child of the ,fonor, whether the child be legitimate or illegitimate, is a ground for a revocation. It is true that even a spurious child is entitled to a legitime under the new Civil Code. However, the relation of parent and child, that is to say, paternity and filiation, must be jurlicially declared in order that th(' spuriQUS child may be entitled to a legitime. For this reason. the words "from the judicial declaration of fili?.tivn" are used in Art. 703. The words "birth of the first child" i·efer to a legitimate rl1ild ; "or from his legitiffiatioH" refer to a Jegit;mated child; "recognition" refers to an ackn.:'lwledged natural child or a n:iturnl child by legal fiction; "or adoption" refer tv an adoptM child. And, lastly. thi; word<i "or from the judicial dedaration of filiation" refer to a spurious child. Therefore, the amendment would not be necessary or in order. ARTICLE 765 Justice Reyel'! proposes that this article should rnake reference to Art. 107 ai; an additional grvmid for revo!dng donations by reason of ingratitude. Art. 107 provides: "The innccent spouse, after a decree of legal separetion has been granted, may revoke the donatir>ns by reason of mal'l'iage made by him or by her to the off~nding spous&. Alienutions and mortgazes madl' before the notation <.'f the complaint for revocation in the Registry of Pr6perty sh'lll be \.alid. "Tl1is action lapses after four yea.rs following the date the decree b\.>come final." Ma1·ch 31, 1954 THE LAWYERS JOURNAL lt is not necessary to refer e>:pressly lo Art. 107 because par. I without the necessity Qf resorling to Art. 10'1. 1 of Art. '165 says: ''CU If the donec should commit some offense a.gainst tlle person, the honor or the property of the donor, or of Respectfully submitted, his wife or children under his parental auihority." Art. 107 is JORGE BOCOBO a mere applicaticn of the principle in par. 1 of Art. 765, so t hat Chairman, Code Commission revocation under Art. 107 may be effected under Art. 765, par. :\Janila, Febru:l!'y 24, 1951 · l\lEMORANDUJ\1 ON THF. PHOPOSED AMENDMENTS TO THE PROVISIOKS THE NEW CIVIL CODE ON SUCCESSION (HOOK JU) EMBODIED IN HOUSE BILL NO. 1019. ARTICLE 719 This article defines testamentary succesFion but fails to define legal or intestate succession. It is proposed to have this article amended so ss to gi\'e the concept of legal or intestate succession. Jn the original draft of the Code Commisaion, legal or i11testate succession is defined in Article 799 thus: "Legal or intestate succession takes place by operation of law in the absence of a v:.>.lid will." The Code Commission agrees with the amendment. so that Al'ticle 799 will give the concept of both trstamentary an.d intestate successions, while Article 780 provides for mixe<l succession. ARTICLE 78i! An amendment to this article is pl'OJlosed to read thus: "Art. 782. An heir is a person called to th~ WHOLE Oll AN ALIQUOT PORTION OF THE INHERITANCE either bv the provisior. of a will or by operation of law. "Devisees and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will." The proposed amendment is not necessary because the word "succession" as used in t his article does not mean "property" but a right, and an heir · may not be entitled to the "whole or an aliquot portion of the inheritance" because of diBinheritance unworthiness. ARTIC~E 815 It is proposed to amend this Article so as to read, thus: "Art. 815." When a Filipino is in a foreign country, he is authorized to make will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines, AS IF EXECUTED IN ACCORDANCE WITH ITS LA ws.i• There is no serious objection to the proposed amendment, although it seems that there is no necessity for the same inasmuch a<:; if the will may be probated in the Philippines, it goc:i without snyiug that said will shall be considered as if executed in accordance with the laws of this country. ARTICLE 838 The last paragraph of this Article is sought to be amended by adding the following: "THE RIGHT OF fHE TESTATOR TO REVOKE HIS WILL, HOWEVER, SHALL NO'r HF. BARRED BY ITS ALLOWANCE DURING HIS LIFETIME." The proposed amendment is a superfluity because of the provisions of Article 828, which ordains that a "will may be revokeu by the testator at any time before his death", and which is in accordance with the principle that ~vel'y will is !'evocable. Moreover, Article 777 provides that "the right to the succession t ransmitted from the moment of the death of the decedent." ARTICLE 878 The following amendment to this Article is suggested: "Art. 878. A suspensive term OR CONDITION IN A TESTAMENTARY DISPOSITION does not prevent tho instituted heir from acquiring his rights and transmitting them to his heirs even before the arrival of the tem1 OR THE HAPPENING OF THE CONDITION." The Code Commission begs to disagree with the proposed amendment for the following reasons: 1. This Article of the new Civil Code avoids the conflict be. tween Articles 759 and 799 of the Spanish Civil Code. 2. Article 878 of the new Civil Code speaks only of a "suaprnsive term" which does not prevent the instituted heir from acquiring and h-a11smitting his rights to his own heir! ever. before the e.rrival of the term. The law allows the acquisition and ti·ansmission of 1·ights before the arrival of the term because the ''term" or pe-riod is sur~ to C01n6 although the exact arrival may not be ascertained. Condition is an uncertain event, so uncertain tha.t it may not happen; hence, the instituted heir should not acquire nor transmit any right to his own heirs before the ful fillment of such sus1n·nsive condition - which fulfillment gives rise to his right to succeed. 3. Article 884 of the new Civil Code providca that "conditions imposed by the testator upon his heirs shall be governed by the 1·ules established for conditional obligations in ali matters not provided for by this Section." Jn uccordance with the pro\ isions of the new Ci\'il Code on conditiorn> ~l obligations, the fulfillment of sµspensive condition gives rise to. a.n obligation .ol' right as t he case may be. Hence, if the said suspensive condition is not fulfilled, no right or obligation at'ises. ARTICLE 10!7 No. ( 4) of this Article is pror-oscd to be amended to read ao; followA: •• (4) Any attesting witness to the execution of a will, th~ spouse, pa1ents, ni· children, or any one claiming under such witness, spouse, parents, or children, UNLESS THERE ARR THREE OTHER COMPETENT WJTNESS TO THE WILL." The Code Con1mission has no 'Jbjection to the pr'.>posed amendment. This Article is also proposed to be amended by adding No. <5> whieh reads: "<5> THE NOTAHY PUBLIC BEFORE WHOM THE WILL IS ACKNOWLEDGED." The Code Commission also accepts the proposed amendment. An amendment to Article 1035 is proposed to read as follows: "Art. 1035. The person excluded from the inheritance by reason of incapacity SHALL LOSE HIS RIGHT TO THE LEGITIME, BUT SHOULD HE be a child 01· descendant of the decedent and should have children or descendants, the latter shall acquire his right to the legitime. 4'The person so excluded l'hall not. enjoy the usufruct and and administration of the property thus inherited by his chil. dren." We cannot accept the above amendment for three reasons: 1. The use of the word "person" in the first line may imply tha.t there may be persons entitled to the· Iegitime although they are not compulsory heirs. 2. The causes of depl'ivation of succession by reason of incapacity may apply to persons other than compulsory heirs. <Set #<\rticle 1027 and 1032>. 3. The provisions of Article 1035 as they nl'e in the Civil Code do not need any clarification. ARTICLES ON SUCCESSION PROPOSED TO BE REPEALED I N HOUSE BILL NO. 1019 ARTICLE 799 This Article of the new Civil Code provides: "Art. 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention." · 1'he Code Commission believes t.hat the above provisions should 1'€main in the Code for t.he following reasons: 1 . Jt is necessary to prevent the occ~rrence of mixed succission. 2. Theo law should favor testate succession as much a.s "'' THE LAWYERS JOURNAL March 31, 1954 PUBLIC CORPORATIONS (Continued from tlw Febrnary Issue) [§ 2Gl] 5. Pa1·ticular regulations. - a. fo general, ''Wh;Ie there is some C'illflict as to whut grBnt of authority will justify particulat· regulations, under the power to regulate and control markets municipal corporations may enact and enforce a~J r egulations which are desirable for the protertion of public health, and they mny adopt and e:iforce any :reasonable and proper rules and rtgulaticns in regard b the market and the business transacted therein. The corporation may enact any reasonable regulation necessary to pre!'crve the cleanliness of market places; may confine the sale of particular articles to certain designated stands or portions of the market and prevent their ~ale elsewhere; may limit the sales in e. m:irket to sp(!('ific articles; may forbid df'liveriug within the municipal limits meat that. has not been exposed for sale in !he public market; may prohibit the sale of groceries in meat and vcgf!table markets; may prohibit the sale of less than a spe<:ified quantity of meat outside of market stulls; may prohibit the standing wagons comaining perishable produce within the mar. ket limits for over a specified period of time between specified hours unless permitted by a designated market official; may prohibit the selling of provisions at the public market .which have been previously purchased within the municipal boundaries out~ide of the markets; may regulate market hours; or may require diseased or unwholesome articles to be removed. The corporation cannot prnhibit the sale of perishable articlC's entirely within the municipal limits. "The ordinary rules of co11struction apply to the construction of statutes e.nd ordinances or regulations relating to the establishment and regulation of markets.1112a Jlliaitration. The municipal council of Daet, Province of Camarines Norte, passed Ordinance No. 7, which was duly approved by the provincial board on June 12, 1948, "prescribing the zonification of the public markets, an<l rules a.nd regulations with regard to the rights to occupy space in the market buildings, and penaltiPs therefor." The pertinent portions of said ordinance 11re as follows: "Sec. 2. All cecupnnt!I in the building publicly kn<>wn as market proper, should obsen'e strictly the regulations with regards to the zonification in the following manner: "Zone 1. Market Building No. 1. - Opposite M:i.rket Tienda11 block A and B will be designated to all merchants or dealerF of dry goods and general merchandise; "Zone 2. Market Building No. 2. - Opposite Market Tiendas block C and D will be designated to all merchants dealing in "Cafeterias',' 'Carcnderias' and 'Sari-Sari'; and "Zone 3. Market Building No. 3 - New Market Building will be designated to all merchants of dry and fresh fishes, meat and vegetable vendors. Sec. 3. It is hereby prohibiter! for any merehe.nts or d<'alers in goods to sell his goods and wares in the zone not alloc:i.ted for the purpose as regulated above. It :!ppears that prior to the pas!;age of said Municipal Ordinance No. 7 and the approval of Resolution No. 104 of the municipal c'luncil of Daet, the public market of the municipality consisted of only two buildings designated as Nos. 1 and 2. A third building known a~ building No. 3 h<iving been complet<.d, the nmnicipal council p<issed the ordinance in question and by said Resolution No. 104 decided to enforce the provisions of said ordin~cc by requiring the merchants and vendors occupying the places in 128 43 c. J. 396-397. possible, and the proYisions of this article have this policy in mind. 3. There may be cases where a person intends 1.o have property which he mlly acquire subsequent to the making of his will to be distributed according to his own perscnal wishes. Section 615 of the Code of Civil Procedure contains the same provisions although O?! real tslu.te only. <See n.lso Article 596, LOWt'f Ca11ada). ARTICLE 891 This Article provides for the "ReserYa Troncal" which was eliminated from the original draft of the Code Commission, but Buildings Nos. 1 and 2 to transfer their places of busir.ess in accordance with the classification provided for in section 2 of the ordinance, so that "dealers or merchants of dry guods end general merchandise" shall be located in Zone 1 CBuilding No. 1); "merchants operating cafeterias, carenderias and sari-sciri" are assigned to Zone NCt. 2 or Market Building No. 2; and merchants dealing in "dry and fresh fishes, meat and vegetables" sh'.lll operate their place of business in Zone 3, known as l\larket Building No. 3. The atove.quoted section 3 of the Ordinance exp!'cssly prohibits "any merchants or ckaler in goods to sell his goods and wares in the zone not allocated fer the purpose as regulated above." Prior to the completion of Building No. 3 and the passa.ge in 1948 of l\.Iunicipal OrdinanC'e No. 7, the petitioners, engaged in the business of caren<leria and cafeteria, were located in Building No. 1, and they contended that Municipal Ordinance No. 7 which required and compelled them to transfer to another building, is nnconstitutiona.l, illegal, null and void, because it is unjust, discriminatory, unreasonable and confiscatory in so far as it refers to the plaintiffs and their business in the market stall occupied hy them in the Market Building No. 1 of the municipality or Daet. They filed a complaint against the munieipa.lity of Daet, praying that said Ordinance No. 7 be declared uncC'nstitufonal, illegal null and void, and that, pending the d~termination of this case, a writ of preliminary il'junction be issued against the defendants, its in!ltrumentalies, agents, officers and representatives, enjoining them from evicting, removing or throwing out the plaintiffs frorr. their rm:rket stalls in Market Ruilding No. 1 of Dact, and that after trial of said case the injunction be made permanent. After hearing, the Court of First Instance of Camarines Norte upheld the constitutionality and legDlity of the ordinance in question nnd declared that the municipal council of Daet, being empowered to enact said ordinance and the same ha,•ing been enaeted for the good of the public, the same is not null, void and unconstitutionP~l unrl con~ficator}' as contended by the petitioners. The court, therl'fore, dismissed the complaint without pronouncement as to costs. · In the appeal, the plaintiffs-appellants, besides assailing the constitutionality and .legality of the ordinance, contend thr.t the court should have found that the plaintiffs are entitled to continue in the occupancy of their stalls in the market of Daet in accordance with Republic Act No. 37 and should have perpetnally enjoined the d~fendant, its officers n.nd n:!presentatives, from evicting and throwing them out from their market stalls in Building No. 1. There is no dispute as to the facts. It has been established at th~ hearing that these nppellant.1 were occupants of stall in Building No. 1 of the market of the municipality of Daet, a.nd were E'ngaged in the business of conducting cafeterias and carenderias r;rior to the passage of Resolutio~ No. 104. series of 1948, '~nercLy the municilml council of Daet seeks to enforee the provisions of :Municipal Ordinance No. 7. With 1·efert'nce to the contenti')n of appellants that Republic Act No. 37 is applicable to them, t'.!Ur perusal thereof shows that it can not be of any help to their case, because said act has for its purpose the "granting preference to Filipino citizens in the lease of pi.blic market stalls:" In the case at bar, th•! issue of the nationality of the stallholders has not been rai~ed by app~llants, an".! is nvt at all mentioned in the provisions of Ordinance No. 7 and Resolution No. 104 of the municipal council of Daet, and under the provisions of said ordinance the appellants are not divested of the The Code Cl)mmission would be glad to see this Article elimi . nated and repealed as recommended in the House Bill No. 1019. '£he presence of this article in the new Civil Code contravenes t he fundamental philosophy of the law on successio:-i - socializatic.n of ownership of property, economic stability, and elimination of feudalistic heirarchy, as explained in the Report of the Commission, p. 116-117. Respectfully submitted, PEDRO Y. YLAGAN l'i!ember, Code ·commission inserted by the House of Representatives. Manila, February 20, 1951. March 31, 1954 THE LAWYERS JOURNAL 155 possession of their stalls in the m'a.rket. Held: Regarding the alleged unconstitutionality and ilkgat;ty, de., of the ordinance in question, upon close scrutiny of its p1·0visions, its wording and its purpose, we find nothing that would support the contentions of appellants. The)' can not deny that under the general welfare clause contained in Sf'ction 2238 of the Revised Administration Code, the municipal council of Dact, is empowered to "enact ordinances and make regulations, not repugnant to law, as may be necessary and proper to carry into effect and discharge the powers and duties conferred upon it by law and such as shall seem necessary and proper to provide for the hc:..lth nnd safety, promote the prosperity, improve the morals, 1 1ea.ce, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of property therein." "Ordinance No. 7 provides for the good, comfort, and convenience of the public and the market vendors as well. By the z.onification and classification provided for by its m·ovisions, the public, the consumers, can easily locate the place where they can find the p:i.rticular goods or commodities they want to buy. Even the merchants and wndors oc"cupying the stalls nre likewise benefited by the zonificntion and classification provided for in the ordinance, in that they will be placed where they should be!ong, ir.stead of being mingled in the .snme building with vendors or merchants dealing in goods or rnercha.ndise or foodstuffs or goods iu which they are dealing. To be sure, these appellants who according to the petition, :i.re dealing in cafeterias and carender m!I, and consequentlr their customers, will not feel happy to be am.ong fish Yendors or the like. "That the a.ct performed by the municipality of Daet in enacting Municipal Ordinance No. 7, is entir!'!IY within the power of the municipal corporation, is decided by the Supreme Court in various similar c:i.ses <Seng Kee & Co. vs. Earnshaw, 56 Phil., 204). In U.S. Salaveria (39 Phil. 102) which holds that the presumptio11 is all in favor of the validity of the ordinance, foe Supreme Court held: "Although such regulation often interferes with an owner's desire as to the use of his property and hamper his fr~dom ·in regard to it, they have generally been sustained as valid exercist; of the police power, provided that there is nothing arbitrary or unrensonable in the laying out of the zones, and that 110 unconh olled discretion is vested in an officer as to 'the grant or refusd of building permits. "Not only the State effectuates its purpose through the exer. cise of the police power, but the municip:i.lities docs also. Like thE State, the police power of a municipality extends to all matters affecting the peace, order, health, morals, convenience, comfort, and safety of its citizens - the security of social order - the best and highest interests of the municipality. The best considerea decisions have tended to broaden the scope of action of the municipality in dealing with police offenses. The public welfare is rightly m9.de the basis of construction.''129 [§ 2G2] 6. Sales outside mn.rkcts. "Asi a genernl rule a. municipal corporation may prohibit by C'rdinance or by-law the sale of marketable articles within certain limits <Jr during certain hours except at the established market. And it f9 withm the power ::if th1:: legisla.turc to authorize municipal corporations to do so. While there are decisions which deny the right of a municipal corpi:.ration k prohibit selling outside of the public markets, under a general 1iower to regulate and control m:trkets, it is ordinarily hc!d that such restrictive regulations as to selling outside of market limits may be made under a general power to establish and regulate markets, and that, where adequate market facilities are furnished, s•Jch regulations ar~ not unreasonable or in restraint of trade but a r·roper regulation of it, although the rule is otherwise where mar. ket facilities are not furnished. In some cases such ordinances or by-laws have been held void on the ground that t~r:y were unreasonable and m restraint of trade. The validity of such ordinances and .by-laws as being in restraint of trade obviously de. prnds very largely upon the extent of the prohibition or regul'lt ion contained in the particular ordinance or by-law, it being well £.:!ttled that such ordinances or by-laws must be ressonable. The <1rdinance or by-law must fall within the scope of the power grant. ed. i_;:ore particularly municipal corporations mar, when duly au129 Ebona et 111•. va. Mun. of Daet, 47 O.G. 1147 9-348~. thorized, regulate private markets, prohibit the maintainance t)f private markets within certain distance of a. public market, prohi)!it the sale of anything but fruit by keepe£s of fruit stand:;i with. in two thousand one hundred feet. of the m:i.rket, or prescribe such i·cgulations as ~ the tim<: and place of selling outside of the mai·kct limits as the general welfare of the municipality ma.y de. mand. It seems to be uniformly held that under a power to regulate the vending of meats, etc., a municipality may prevent thei1· being retailed outside of the public markets. A municipality may also, under a power to prevent the obstruction of streets, prohibit the standing of wagons for the sale of market produce within c«rtain limits, or 11rcvent any street vending without a permit. It may prescribe that huckster wagonsi shall not stand in the mai·kct place longer than a prescribed time."130 end 1:!~:~:~!~0~~ t~e "~::~ :;d,;~~ ~~~;:n~:r~~n~a:::~ fo:~~::;~: sold meat at a place other fhan the public market in violation of a municip:i.I ordinance of Catannan, Samar. They appealed, contending that the said ordinance was discriminatory, unreasonable and oppressive: discriminatory, because its provisions applied exclusively to the defendant Maria Vda. de Saban·e as ma.y be seen from a r eading of article 1, which prohibito.>d butchers and uny other person from selling meat in any place except the public market; . and from that of nl'ticle 2, which prohibited fishermen or anr other person from se\ling fresh fish and other commodities in the public streets of the pobla,cion, thereby permitting their sale in other place!; be<"ause the public market of Cntarman was located in an unsanitary place, in the ontskirt of the town an<I amidst muddy, dirty, and obnoxious surroundings to which nobody went to sell foodstuffs. The municipality having failed to keep it in proper condition for la.ck of funds, and its locetion not being easily accessible to the health authorities for their inspection; and oppressive because the prohibition to sell meat in any place other than the public market compelled the meat vendors to offer their goods for snle in one determined place without taking into ac::ount the peculiar conditions prevailing in the small town of Catarman, the insanitary condition of its market, and, tihove all, the absence of vendors and buyers therein, thus forcing said meat vendors to move their business to another place where there were no people, no other vendors, merchants or customers. Held; ''Although the ordinance in question makes a d:stinction by prohibiting in its article 1 butchers and meat vendors from selling meat outside of the public market and in article 2 the fishermen and fish vendors from selling fi sh in the public streets e,,f the poblacion, said distinction is not unreasonable because in ;:o far as the public health is concerned there is a great difference between meat and fi sh in their susceptibility to decay, especially where no ice is used to preserve them. "In the case of People vs. Monti! C53 Phil., 580), this court laid down the following do<"trinc: "'l. MUNICIPAL CORPORATION MAY PROHIBIT. - As a general rule, a municipal corporation may prohibit by ordinance the sale of marketable articles within certain limits or during certuin hours outside of nn established market. "'2. WHAT MAY BE DONE UNDER A GENERAL POWER. - Under a general power to regulate and control markets, restrictive regulations a.3 to selling outside the market limits may be made under a genel'al power to establish and regulate markets, and where adequate market facilities are furnished, such regulations arc not unreasonable or in restraint uf trade, although the rule is ctherwise where market facilities arc not furnished.' "The ordinance in question, therefore, is not unconstitutional inasmuch as the classification is based on a substantial distinction, which constitutes a real difference; is germane to the purposes of the: ordinance; is not confined to existing conditions only; and ap. plies equally to all fishermen and fish vendors and to all butchers and meat vendors <People vs. Chan, 38 Off. Gaz., 1539; 12 Corpus J uris, 1128, sec. 855.) "The fact that the public market is dirty &nd unsanitary and is located in a muddy and filthy place to which no people go to make purchases, does not render the ordinance oppressive and unreasonable. It being a duty of the municip~lity to maintain its public market in sanitary condition and the municipal council be130 43 C.J . 397-398. 156 THE LAWYERS JOURNAL M:ll'ch Sl, 1954 The section in which the a.hove-quoted provision is to be found is entitled "Certain legislative powers of mat1datory chC11"<1cter". [§ 269) <2> i\lunicipalitic;J m specially organized provinces. ·'The municip~l council shall have power by ordinance or resolution: . . ... "Caa) NuisM1ces. - To declare, prevent, and abate nuisances. • i:: * "138 [§ 270) (31 Municipalities in speciolly or9anizcd pnivinces. "The municipal council shall ha\'e power by ordinance or resolution: ... • * *" ing made up of pP.rsons chosen by the veople to administer their interests and safeguard the health of the inhabitants, the latter have a remedy, if their officials are neglectful in the discharge of their duties, by complaining to the higher authoritit:>s."131 [§ 263] c. lnsp11ction. "A municipal corporation, in the t:>"\'.erdse of its power now under consideration, may provide for the inspection of the quality of articles sold within the market and the weights and measures employed in making sales. It also may provide that the market itself shall be regularly inspected by design&ted public officin.ls, and ilnpose the cost of inspection upon the "fee> Ri11.qi11g of /,ells. - To regulat~ and restrain the ringing owner or operator of such markets. The governing body of the of b~!~s and the making *of loud, or unusua! Mises. ~~r~~:a~,:~1 r~:e1;~i:;:ct~o:i~:tdi:~;~ti~;e i~~nd:~~r~~n~:~.e~~~0;:i~u~! [§ 271) <4> City of Manila. "The Municipal Board shall have arbitrary; the f!!e must be in proportion to th!! amount nel!essary the following legislative powers: to meet the expense and cost of the service."13:l. '"" • 1 • *"l3t [§ 264] 6. Boo.rds and offfo<Jrs, "In the exercise of the power "Cee> To decla1·e, prevent, and1 provide for the abatement of municipa.1 corpC!rations may create administrative offices for tho? nuisances; to regulate the J"inging of bells and the making of loud enforcement of their market regulations, and may p1·escribe the .. n· unusual noises ; to provide that. owners, ag!!nts, or tenants of duties of market officials, and their salaries. Ordinarily the selecbuildings 01· premises keep and ·maintain the same in sanitary con- tion of market officials, follC1wing the general rule, in the absence dition, and that in case of failure to do so, after sixty days from of provision to t.he contrary, is made by the municipal governing the date of serving of a written notice, the cost thereof be assessed body. Market regulations are enforceable by, and only by, those to the owner to the extent of not to exceed sixt.y per centum of officials or the board in whom the power to enforce such regulathe assessed value, which cost shall constitute a lien ·against the tions has been vested. The fact that a board of health is authortn'op~~ty . ~~~ ~~a;::;~:tea1:ai;;e~~einsur;;e~:: !:t~~~·ii~y,cil~a~-~i;::.~· t:en~!~~~~~ [§ 272] 2. Whar constittlte:i nuisa11ce; detennim1tion by muni- affecting the public health, does not prevent the jepartment having cipal authorities. "The Civil Code defines and classify nuisanCes.141 · the general control of markets from making regulations in further"For pur9oses of municipal regulation and suppression, as, ance of the same objects; but a board of health invested only with gf:nerally speaking, in qther instances, nuisances may thus be class- powers necessary to the preservntion of the public health and life ified: Cl) those which in their nature are nuisances per se, or cannot, irrespective of these considerations, order the removal of are so denounced by the common Jaw or by statute; (2) those stands or stalls attached to the public market on the ground that which in their nature arc not nuisances, but may become so by they arc ('lbstructions upon the public street-"133 reason of tht:ir locality, surroundings, or the manner in which they [§ 265) P. Needy; statutor11 statement as to Philippine mu1!imay be conducted, managed, etc. ; <3) those which in their nature <'ipal cor11orations. - 1..Municiprt!itics in reguln.r provinces. "The may be nuisances, but as to which there may be honest differences municipal council shall have authority to '.?Xercise the following disof opinion in impartial minds. With reference to things wl1ich cretionary powers: fall into the first and third classes - that is, thim?;s which in their nature are n.uisances and nre so recognized by the law, and things which are of such a character that in their nature they may be nuisances but as to which honest differences of opinion niuy exist among men of impartial minds as to whether they are actually nuisances - it is settled that a municipality may appl"Opriately deal with them by legislative police ordinances and enactments under grant of power from the legislature. On the other hond, as to things which fall into the second class - that is, things which in their nature are not in themselves nuisances, but which may become such by reason of t11eir locality, surroundings, or the manner in which they arc conducted - a municipal corporation has no power conclusively to declare them to be nuisances, but can only declare such of them to be nuisances as are so factually, because general authority to define and abate nuisances does not empower a municipality to declare that to be n r.uisance which is not a nuisance in fact, or which is not a nuisance [H se and does not come within the common-law or a statutory definition of a nuisance. There has been a tendency in municipal councils to imagine that by declaring a certain use of property to be a public nuisance nil discussion is foreclosed, and that by virtue of such declaration, the power of the municipality to suppress such use is unquestionable. Such a notion, however, r ests upon a failure to distinguish between the different classes of sub-. jects which may under some conditions fall within the category of nuisances."142 [§ 273) 3. Method of abatement. It would seem that the method of abating municipal nuisance is now governed by the new C:vil Code.HJ [§ 274] R. Newspapers. - 1. In general. "!\Iunicipal corporations may within reasonable limits regulate the sale of newspapers or similar publications. But such regulations must be reascnable."144 138 Sec. 2628. Rev. Adm. Code. 139 Sec. 2625. Rev. Adm. Code. UO See. 18. Rep. Act N<>. 409. 141 SC<! Art~. 694 k 695 N. C, Cod<:-. 142 37 Am Jur. 93~-939 143 See Art. <:-t Seq., N.C. Code. 144 43 c. J. 399. "(b) To make provisions for tlic care of the poor, the sick or Jlersons of unsound mind. ''* * [§266] 2. City of litanil<t. "The Municipal Board shall have the following legislative powers: "* • " (() To aull1orize the free distribution of medicine by the city physician to the employees ::i.nd labol'crs of th-a city, and of fresh native milk, if available, to indigent mothers nsiding in the city. ""' .... "' * "135 [§ 267] Q. Nuisrmces. - 1. In general. - a. Gvneral111. "It is definitely settled, without dissent, that a state legislature may lawfully delegate to municipal corporations, to be exe1·cised within their corporate boundaries, the power to declare what shall constitute nuisances, and to prevent or abate them; such power is, as a matter of fact, generally given to the municipalities, either in their specific charters or general state statutes. The regulation and abatement of nuisances is one of the ordinary functions of the pclice power, and municipali.ties arc generally considered as hm·ing been given the iight, in connection with their exercise of such power, to suppress them. It has been held or stated on numerous occasions, however, that municipal corporations have no control vver nuisances within their coq>0ratc limits except such as is conferred upon them by their charters or by general laws, and can t:xercise no powers in this regard beyond those expressly given or n£:cessarily implied."1~6 [§ 2G8] b. Stal.u.tory statement as to Philippine 1nu.nicipal corporatio"'·~. - <I) MunicipalitietJ in regular provinces. "It shall be the duty of the municipal council, conformably with law: "* • * ... "(h) To declare and abate nuisances. !~~ r3eog:~.o~9~~e Philippines vs. Sabarre. 65 Phil. 6~4. 133 43 C.J. 3n 134 See. 22~2. R.iv. Adm. Cod.:. 135 Sec. 18 Rei>. Act No. 409. 136 37 Am. Jur. 933·934. 137 Sec. 2242. Rev. Adm. Code. March 31, 1954 THE LAWYERS JOURNAL i57 "Establishment of m1tnicipal ga;:ettc. It has been held within the powers of a municipal corporation to establish a paper or i;razette for the purpose of giving information to its inhabitants upon matters of general interest affecting the municipal wel1arc."10 (§ 275) 2. Prohibition. "It is generally held thnt it 1s without the powers 'Jf munici11al corporations to prohibit the p\1blication of ne\vspapers."1445 Reasons for, a11.d discussion of, -ride. "The power to prohibit the publication of newspapers is not within the compass of legislative al'tion in this Sta.te, and uny law enacted for that purpose would clearly be in dercigation of the Bill of Rights. 'The constitutional liberty of speech and of the press, as we understand it,' ss.ys Mr. Cooley, 'implies a ri~ht tc freely uttf:r and publish whatP<er the citizen may please, and to be protected against any res.. ponsibility for 5('! doing, except so fa.r as such publications, from their bh1spht-my obscenity, or scandalous character may be 3. public offense, or u!:I by their falsehood and nialice they may injur:icusly affect the stnnding, reputatio .. , or pecuniary bterests of individuals. Or to state the sa.me thing in som~what differl!nt words, we understand liberty of speech a'n.i of the press to imply r.ot cinly liberty to publish, but complete iinmunit)' from legal censure and punishmPnt for the p1:1blication, .ro long as it is not harmful in its charncter, when tested by such standards as the law affords.' Cool. Const. Lim., 518. To prevent the abusP oi this pt ivi.lcge al a.ffecting the public, the Legislature has prescribed penaltiPS to be enforced at the suit of the State, leaving the matter of private injuries to be determined between the parties h1 civil proceedings. We are not informed of any authority which sustains the doctrine, that a municipal corpora.lion is invested with the p:lwer to declare the sale of newspapers a nuisance. The power to suppress one concedes the power to suppress all, whether such publications are political, secular, religious, decent or indecent, obscene or otherwise. The doctrine of the Constitution must prevail in this State, which clothes the citizen with liberty to speak, write, or publish his opinion on any a.nd all subjects, subject alone to responsibility for the abuse of such privilege."14T [§ 276] S. Obscenity. - I .. fo general, "While municipal corporations may enact ordinances forbidding particular acts of obscenity which are' unlawful or which tend to corrupt the public morals, the power to forbid particular acts of obscenity must be expressly granted or necessa.rily incident to a power expressly granted. By force of statute municipal corporation'3 may prohibit the publication of obscene matter. A publication of !lrticles in a paper, attacking the J ews as a race, is not indecent, obscene, or scanda.lous, within a municipal ordinance prohibiting the offering for sale of a publication containing indecent, obscene or scand&.lous articles. The limit of the power to enforce an ordinan<'e vrohibiting the sale of obscene or l'candalrms publications is to conduct a prosecution for the specific offense thus committed. The corporation cannot, by establishment of a. censorship in advan~~ of future publications, prohibit generally the sale thereof upon th<' streets."1415 [§ 277] 2. StatutOry provision..s as to Philip1Jirie municipal co-r. porations. - a . . j!,.fanicipalities in specialty o-rganized provinces. "Tht; municipal council shall have power by ordinn.nce or resolution: "* • • •" "Cg~> to prohibit the> printing, sale, or exhibition of immoral pictures, books, or publications oi nny description. ... . . [§ 278] b. City of Manila. "'l'he Municipal Board shall have the following legislative powers: ..• . "(r) To provide for the prohibition and suppression oi the printing, circulation, exhibition or sale of obscene pictures, books. or publications, and for the maintenance and preservation of peace and good morals. • •"150 [§ 279) T. Patrfll sen·ic~ or duty from male t'csidents; sta. tutory prot:isioris as to municipalitks in regular provinces. "When the province or municipality is infested with outlaws, the municipal U 6 Id. 399-400. 1445 43 c. J. 4110. 147 Ex p, Nelli. 32 Tex. Cr. 276, 22 SW 9245. 148 43 c. J. 410. 1(9 ~. 2626. Rev. Adm. Code. 1:;0 Sec. 18 Rflp. Act No. 409. council, with the approval of the provincial governor, may authoriz£l the mayor to requil"e able-bodied ma.le residents of the municipality, between the ages of eighteen anJ fifty years, to assist, for a period not exceeding five days in auy une month in apprehending -Outlaws or other lawbreakers and suspicious ch?.racters, and to act. es patrols fur the protection of the municipality, not exct~eding en~ ddy in each week. "Nothing herein contained shall authm·ize the mayor to require such service of officers or employees of the National Go\•err.ment, or the officers or s~rva.11ts of companies or indiYicluals E'ngaged in the business of c-ommon carriers on sea or land, or priests, ministers of the gospel, physicians, practica1ite.s, dru,qgists or practicantes de farma.cia actually engaged in business, or lawyers when actually engaged in court proceedings.'11s1 Illustration. A resident of the municipality of Iloilo was in 1914 charged with having criminnlly and without justifiable motive failed to render service on patrol duty, in violation of the municipal ordinance of Iloilo on the subject patrol duty. The accused contended that the ordinance upon which the criminal complaint was based was unconstitutional, for the i·eason that it was contrary to the provisions of the then Organic Act of the Philippines, the Philippine Bill, which gnarantecd the liberty of the citizens. The said ordinance appeared to have been adopted in accord. a nce with Act No. 1309, Which amended section 40 of Act No. 82 ' fithe Municipal Code at the time). The amendment empowered the municipal council, by ordinanc(!, to authorize the president: <t.) To require able-bodied male residents of the municipality, between the ages of 18 and 55, to assist, for a period not exceeding five days in any one month, in apprehending ladrones, robbers, nnd other law breakers nnd suspicious characters, and to act as patrols for the protection of the municipality, not exceeding one day each week; lb) To require each householder to report certain facts, enume1·ated in said amendment. Held; "Is there anything in the law, organic or otherwise, in force in the Philippine Islands, which prohibits the central Gov. ernment, or any governmental entity connected therewith, from adopting or enacting rules and regulations for the maintenance of 11cace and good government? May not the people be called upon, when necessary, to assist, in any reasonable way, to rid the state and each community thereof, of disturbing elements? Do not individuals whose righh are protected by the Government, owe some duty to such, in protecting it against lawbreakers, and the .:listurb. er.~ of the quiet and pea.cc? Are the sacred rights of the individual violated when he is called upon i"o render assistance for the prot ection of his protector, the Government, whether it be the local or general Government ? Does the protection of the 'individual, the home, and the family, in civili7.ed communities, under e.i>tablishcc.l government, depend solely and alone upon the individual? Doea not the individual owe something to his neighbor, in return for the protection which the law affords him against encroachment upon his rights, by those who might be inclined so to dO? To answer these questions in the negative would, we believe, admit that the individual, in organized governments, in civilized society, where men are governed by law, does not enjoy the protect:on afforded to the individual by men in their most primitive rehtions. "If tradition may be relied upon, the primitive man, living in his tribal relations before' the days of constitutions and states, eujoyed the security and assurance of assistance from his fellows when his quiet and peace were violated by malhechorcs. Ev<'n under the feudal system, a system of land holdings by the Teutonic nations of Europe in the eleventh, twelfth, and thirteenth centuries the feudal lord exercised the right to call upon all his vassals of a certain age to assist in the protection of their individual and collective rights. <Book 2, Cooley's Blackstone's Commentaries, 44; S Kent's Commentaries, 487; Hall, Middle Ages; Maine, Ancient Law; Guizot, History of Civilization; Stubb;:' Constitutional History of England; Chisholm vs. Georgia, 2 Dall. lU. S.' 419; DePeyster vs. Michael, 6 N. Y., 467.) Each vassal wa3 obliged to render individual assistance in retUrn for the protection e.fforded by all. "The feudal system was carried into Britain by William the Conqueror in the year 1085 with all of its' ancient customs and usages. i51S,;-227li. Rev. Ad.Ill. Code. 158 THE LA WYERS JOURNAL Ma1·ch Sl, 19G4 MR. BROWNELL'S •• , <Continued from page 120> in addition to the naval reservations and fueling stations, any l'.nd all reservations of the United Statefl as he may deem necessary for the mutual protection of the Philippir.e Islands and the Unitetl States, and by such means as he finds appropriate, In addition, he has been authorized by the same joint resolution to r.cquire bases and to retain them for the same purpose and by the same means. As a rtsult, the President was and is vested with compk•te discretionary authority to retain or convey to the Philippir.1? government the title in and to any military bases 'lf the United States in the Philippines. The language of the joint resolution of June 29, Hl44, 58 Stat. 62G, referring to ''ba~e~" without qualification and "in addition to a11y providPd for by the Act of i\'larch 24, 1934," is comprehensive enough to include the naval reservations and focling stations &s well as military reservations, so that the President's earlit!r authority as to naval reservations and fueling stations is r einforced b? the joint resolutivn. Again, as in the (!ase of the n::ival rese1 -vations and fueling stations, there is no ubligation on the part of the President to transfe!" t itle to the bases without comntnsation. LikewisP, there is 11n nbligation on thtl part of the President to demand compensation ir. connectfon with s fransfer. His discretion is complete. A fnrther question has been raised in regard to th.ose properties of the United States which :iave heen or are bein,:r used as "temporary Installations" under Article XXI of the )'filita!':v Bases Apeement In cor.trast to the Annexes A and B baf::es under _ fnat r.greement. It is said that because of their temp•ll·ary naturr. it might be implied that upon krminstion of thelr use the temporary installations would be conveyed to the Philippine government without compensation. But there is nothing in the agrfr.ment mnking provision for such conveyance of title; and as noted earlfo1· in thi11 ')pinion. the contemporaneous exchange of notes uccompanyln~ the Military Bases agreement was inlenderl to resPrve the whole issue of title to properties involved in the b'lSes a.1?TePment f or ft:ture settlement in accor<la'"lce with the acts and joint resoluticm of the congress. Article XXI, like the rest of ·the a,2'J"P.ement pertaining to the Annexes A and B bases, is concerned with the use for niilitary purposes of the property involved, rathe1· than its ownership. Tht:: memorandnm of the legal adviser points out that the number of temporary installations has been grc:atly rc,duced by the specific, formal conveyances to the Philippine government of most of the United. States military prope1 ties coming unde1· tl;ic head of t<·nmorary installations. In the category of real property constituting 3 temporar~· installation tliere remains, he says, •mly the F'Clrt McKinley r('ServatiC111, and the P1Tt ,,f Manile. rest:!rvation as "We find in the days of the 'hundreds,' which meant a division of the state occupied by one hundred free men, the individual was liable to render service for the protection of all. (B(;nk 3, Cooley's Blackstone's Commentaries, 160, 245, 293, 411.) In these 'hnnrireds' the individual ,'hundredor,' in case of the commission nf a crime within th.:! country or by one of the ''hundredors,' as against another 'hundred,' was obliged to join the 'hue a.nd cry' <11,ttesfom et clamor> in the pursuit of the felon. This purdy cu~tomary ancient obligation was later made obligatory by stat-.ite. <Book 4, Cooley's Blackstone's Commentaries. 294; 3 Edward I., Chapter 9; 4 F.dward I., Chapter 2; 13 Edward J., Chapters 1 and -i.) "Later the statute provided and directed : 'That from thencP.forth every county shall be so well kept, that, immediately upon rcbberies and felonies committed, fresh suit shall be made from town <pueblo> to town, and from county to county; and that 'hue anrl cry• shall he raised upon the felons, and they that keep the town (pueblo) shall follow with 'hue and cry,' with all the tcw:i <pueblo}, and the towns Cpueblos) near ; and so 'hue and cry' shall be made from town .CpuebJo) to town, until they be taken aud de. livered to the sheriff.' "Said statute further provided that in case the 'hundred' failed k join the 'hue and cry' it should he liable for the damages done by the malhecho·res. Later, by statute <27th Eli?.aLeth, chapter 13) it was provided that no 'hue and cry' would be suffi('icr.t unless it was made with both horsemen and footmen. The "hue und cry" mi:;ht be raised by a justice of the peace, or by any peace to which Atticle XXI makes special p1·ovisfon. The past con. vey.'.lnces of almost all of tempvrary instr..llations without compensation in 1947 and 1949 might. be claimed to be some evidence of a "moral obligation" to convey the remainder of the temporary iustallation without compensation. I do not find a11y legal obligation rEquiring the Unitt.-d Stat'.!:;; to cC1nvey title to the r emainder of the temporary installations; m.r 1s thHt &ny provision C1f l<ow 01 agreement dealing differently with those titles th:!.n is provideJ in the case of the Annexes A and B bases and the naval reservations arid fueling stations. If in the, past the President was moved to convey to the Philippine government title to the military installations which were surplus to the United States needs, without compensstion, he was well within hi:, authority, as has been already described. As the hil'\tClry of the period indicates, he 1nay well have lu~en motivated by the desire to obtain Philippine cooperation in supplying other prot.iert1e!> ot· f&.cilitic~ for United States use. Equally, the President may find today that those expectations havi; not been realized, in view ::if the f~ct that at the preser.t time the United States is having difficulty obtaining property from the Philippme government needed for expa nsion of the bases. But these are reasons of policy, calling for the exercise of the discre. lion vested in the President. They do not constitute legal obligations. l tht:reforc conclude that ther~ is no different law governing the disposition of United States titles to pnperties comprising the Article XXI temporary install<?.tions than is provided for dis1iosition of the titles to the Annxes A .'.lnd B basts ryf the Military Bases Agreement. · As to all thrt:e categories of bas<: pr0perty, vi?.., AnJJ<·xes A :.nd D basrs, 11avnl reservation~ !.nd fueling stations, and Article XXI installations, there is no obligation on the part of the United States to trnnsfcr pr('sently to the Philippine gover nment title to any such properties, with or without compensation. Howevtr, the President is authorized in his discn:tion, to mah trimsfers C1f such base pro1ierty as he deems to bi; in the:. interest of ihe United Stutes on such terms and condit10us as he may deem advisable, in agi-eement with the government of the Philippine Republic. In view of the fiossible negotiations with the Philippine government, which lie a.head, it is my understanding that you do nClt want this opinion to be published. T hertfore, for the present, I am ' maintaining the same classification fo? thh, opiuion as has ·been asSIJ!IlE:d tr. bt- the incoming material. I am sending copies of this opinion to the director of the bureau of the budget, the secretary of the navy, anJ the secretary of rhe au- force. Sincer('ly, HERBERT BROWNELL, JR. Attorney General officer, or by any priva.te person who knew of the commission of the crime. "This ancient obligation of the individual to assist in U.e protection of the peace and good Ol":ler of his community is sti\1 recognized in all well-organized governments in the 'posse comitalt!s' (power of the county, poder del condado}. <Book I Cooley's Blackstone's Commenta:ries, 342; Book 4, 122.) Under this power, these persons in the ~tute, county, or town who were charged with the maintenance of peace a.nd good order were bound, ex ofticio, b> pursue and to take all persons who had violated the law. For that purpose they might command all thC' male inhabitants of a certain age to assist them. This power is called 'posse cornitatus' Cpow('r of thf' ('nunty). This was a right well J'ecognized at com. mon-law. Act No. 1309 is a statutory rccvgnition of such comF mon-law right. Said Act att'1mpts simply to designate th~ c:i.ses r.nd the method whpn and by which the people of the town Cpueblo> may be called upon to rendP.r assis~a.nce for the protection of the 1millic and the preservation of peace and good order. :f., * * "' ~ "We are of thet opinion, and so hold, that the power exerci~ed under the previsions of Act No. Ul'09 fails within the police power Vf the state and that the state WUl'I fully authorized and justified in conferring the F:>.Jl'IC ll)ll)n the municipalities of the Philippine Islands, and that, therefore, the provisions. of said Act are r.onstitution;il and not in \'iolation nor in derogation of the rights c·f the persons affected the1·eby."1:;2 1G2 U.S. vs. Poml)Cya, 31 Phil. 246, 250·252. March 31, 1954 TI-,IE LAW\".EHS. J:OURNA.L "LAUGHTER IS LEGAL" CROSS.COUNTRY CLASSIC Have you heard a story about the man in the market for a nrw car who saw an ad in a Long Island paper offering a H152 Cadillac for sale for .$50? Th(' first day he passed it up as a joke, but when it appeares for the third time he went to look at the car. The address given turned out to be a beautiful estate. The owner, Rn attractive middle-aged woman, showed him the car and let him drive it. It was in perfect condition, and he promptly r.Jinched th"! deal. After the bill of sale was in his hand, he couldn't suppress his curiosity any longer. "Would you mind," he asked the woman," tellin~ me why you are sellintZ' a beautiful car for $50 when you could have gotten a.t least $4,000?" .. Not at all." she replied." In my husband's will he left ini•tructions to deliver the procee<ls from the sale of his cadillac~tp his s<!Cretary, who liad been so kind to him." SLIM CHANCE In Manchester, Enefand, aft"r Mrs. Maude MitchPll l'lrodnce photn1?ranhs to show her husb:rnd's allPt?ed crueltv harf ca11se her tn lnse 2 no11nds in two years. the judl?e rPmnrked that the lngg ot weight had enhanced her e.ppearance, denied her separation plea. GOOD OLD MOUNTAIN JUSTICE Jn Kentucky hill Muntry, a man w<>9 on trial fo ... bei""' clrunk, r.nd the jndf""e t'ouldn't find an unnrefudir,.rf iury. ThP f~ll"W h<td tOI' many frienrl!'I and too manv l!nem;l"S, nnrt the,.P W"!'I only one ll"BTI in town who s:iid hP was nP11tral. So the iu~ ... e decirled Qn 11 one-,.,An jury. The trial ended. nnd the iury went oft to con~Mer ;b verrl1d. After an h(lur went bv- without n wnrrt. fhe iudC?e tnlrf th0 rl"rlt° to l?O and see what was h<>npenin<?. Th ... tw<>lvl! fo..-v m"n all ,.n1led into OnP sent a messai?e: "We ain't de<"id0 d . .Tudf!e." The .i•1de-e keflt SP"<HTIC? TIPW mess<>n!!'f'r!'I Pvcry hour .!Ind a.lwl\VS P"nt thP same answf>t'. F!nallv ahni1t midnight he was pretty mad and went to the jury room himself, The fellnw was sittinl? there. lookinl? worried. ''Judge, I was just coming to tell you, the jury can't argree." WITNESS NEEDED ''Wnnlrt you like an 11diournr'l"ent to nb~<>in an attor1pv?" the Judge asked a bewildered foreign-born defendant who sto~d before him. "N'o thanks, Judge.'' "Have you money for a lawyer'!" "I ain't i;rot no money." "'Vo111tl you like the r.ourt to an"nint a lawye1· who will pro~t. your interPst and reflrpscnt you - without any cost to you?" "Thanks, your honor. J 11r'l1?e. This is a wr>nd"rfnl roun+ry. You aTP so P'OOd tn men - you offn me a lawyer, hut . • TudJ?'e. to trll yn11 the truth. I don't nCPd a l:>wyer so much - what I r.eed rii.;ht now Is a helluva good witness!" 108 "Wht1t is your age?" asked the judge. "Remember you're under nath." "Twenty-one years and some months.'' the woman answered. "How many months?" the judge persisted. "One hundred and eight." THE BIG QUESTION \Vhen Henry Norris R11ssetl, the Princeton a!'ltronomer. concluded a 1ecturP on Milky \Vay, a wQman asked him: "Tf our world is sr. little and the unive!'se is so great, can we really belive that God pays any attention to us?" "That, madame,'' replied Dr. Russell, "depends entirely on how big a God you b<:!lieve in." ... - ;;. SALARY ~ Two ~·cars a:;?o my son, who was t.hen 13, proudly anr.ounced one day: "I was the only one .in our class that got a 100 in 11ocial living test." "That's fine,u I said. "Were the questions ha.rd?" "Well, the only one I didn't know the answer to was 'what is the salary of the chief Justice of the United States?' but T figurf'd it out. I knew that Ted Williams got $100,000 a yt'at' from the RP.d Sox, and I decided that a Chief Justice woulri probably get about a fourth as much. So I put down $2!>,000, and it was right." W.4.SHINGTON WONDERLAND A busy man forgot to ii1e his income tax return until a few days after the dee.dline. "I have no excuse," he con!essed to the Government in an act'ompanying note. "I just forgot. I am enclosing the required five percent fine ." Shortly, he received a ponderous aml official letter. Would he be good enoui;i:h to fill ont enclosed form. i;etting forth the reasons for his delinquency, and have it notarized? "No excuse,'' he wrote back. "Have paid fine.'' Last week he got anoth<>r letter : No excuse. it said in es .. sence. is not an excuse. "Please file notarized affidavit testify~ ng that you had no Excuse." WISE Gia The Commandinfl' General of a line divis:on in Korea was insJlPctin!? one su,,ny afternoon when three sniller bullets from nr.a.rby hill whizzed over his head. Jumnin~ intn a b11nkcr that was occupied by a sergeant, he barked, "Locate that sniper!" "We know exactly where he is,'' the sergeant r<?p!ied calmly . "Why in the devil don't you shoot h ini then?'' demanded the gc:neral. "Sir. that fe11nw has been ."n:ni"2' at th:s hill '"" woeks now :intl hasYJ't hit anyhn-iv yet. w~•re afrn;rl if we kill him, they night replace him with someone that can shoot." EMERGENCY "How rlo vou know you were P"oini? n,,ly 15 miles an hourT" th!! judge asked the driver accused of sneeding. "I was on my way to the dentist!" TEXAS TALK Whf'ln a wnmn'1 havi"i:? 1Hnner in R n<11Tas re."bmrant Piive thP w11iter ~ '-!lOO hill to pav fo,. 11n cliPrk. the rnan<tger suggel'lted, "See if she doesn't have something smaller.'' ••v,.s. sir''. said the wl\iter." but I d"n't tli;nk she do, boc;s. She had to rummage around in her money to find this." THEY ASKED F'OR IT The ·OwnPr of a $10.000 limous:no. nnllinl? un at a liglit b0~tdl" a small car driven by a frien.d, couldn't resist the chance to het'kle. "Gosh sakf's m•m," he said, "whet is that dreadfull rattling sound in your car?" "Oh. that? said the small car's driver calmly. That's just $9,000 jingling around in my pocket!" QUOTABLE QUOTES Herbert Hor.ver: All Presidents go fishin~ because they want to be alone to thii1k once in a while. Except for prayer, fishinir i.:; about the only time people respect the privacy of the President. APOLOGIA ' We wi!'lh to aprolonize to our natron, fhe WORLD-WTDE IN'SUP.ANCE & SURgTY COMPANY INC .. for havinl? failed to publish the name of the said insurance comflany in the advntisemrnt of the Janu:iry Jss11e of the Lawvers Journal on e.ccount of an oversight on the part 'lf the Printe~s. 160 THE LA WYERS JOURNAL March Sl, 1954 Manila J4.111CO. HERMlNIO 8. &.;!01 Samanillo Didi' .. X anlla .S-3S-U &: IMPERIAL LAW OFFICES ilr or Leaasvi ~AN 6:SANCHJl:Z MU. Reil:iu. Bide .• .:.COit.a. Manlls 'Wl.4-11-S1 ,DlfAMDl:Z lR., BSTANISLAO A. ., s.-a.;11o 85d&' •• Manila r . .. --··PR.ANCtSCO. ALBERTO J. R-201 Samanmo Didi'·· Manila Tel. J- Jl- 64 FRANCISCO, RICARDO l . R-201 Samanillo Didi' •• lhnila Tel. 1-31-U FRANCISCO. RODOLFO l. R-201 Sa.manillo lildl' .• Tel.S-Ss-44 FRANCISCO, VICENTE l. R.-201 Samanlllo Bld&" .. Tel. a-SS-U GUERRERO. BERNARDINO R-311-C ~Ci na Didi'. OrriC<ll Tel. 1-22-:U Local U Rei. Tel. 5-?i-19 GtnKAN, PRUDENCIO DE ft..2U Roce1 Hmona. Bide. •it Qiql Annue, Manila Tai. No . .a-U-79 JORDAN TECHICO LAW OFFICES AaociaU: Jud&"e L. J. Man.,..nido Suit- 211-218 Second Floor fln •law of the pr..sent difficulty Ot locatinl' tba offlce11 or praeticinir attorn"J'•. the Joumal 11ubli1bea this directory to acquaint not onl7 their cli<!'nta but alao the public of their addreu. Lawyar1 may nail tbenucl•u of thia 11enit':<!' upon payment of Two P"ao' for eacbisaueofl.bU.publication.) MARASIGAN. FRANCISCO R.-201 Samanillo Bide .. Manila T"I. S-U-U KATIAS, ANDRES R-201 Samanillo Bid&" .• Tel. S·SS-M PACHECO, EMERENCIANA S. S1l San Anton. Manila Tel. S-85-29 QUISUllBING. SYCIP, QUISUMBING 6 SALAZAR LAW OFf'ICES 5th Floor, Trade and Co1DJDerce Bide. 12:! Juan Luna. 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VILLANUEVA Branch Manager CEBU CITY, CEBU Mr. ANTOLIN A. JARIOL Branch Manage,. LAOAG, !LOCOS NORTE Dr. PABLO J . RAVAL Bra.ncl) Manager Compliments of the NAGA Mr. J.'RANCISCO JMP~RIAL Branch Managtr LUCENA, QUEZON Atty. FELIPE T. LOPE'L Branch Manager LA PERLA CIGAR & CIGARETTE FACTORY, INC. Manufacturers Of The Nationally Famous •FIGHTER •ICELAND •GOLDEN COIN & •SPORTS Cigarettes 244 Qµirino A venue, Paranaque, Rizal Tel. No. 5-25-80 ~· I