The Lawyers Journal

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Title: The Lawyers Journal
Issue Date: Volume XIX (Issue No. 12) December 31, 1954
Year: 1954
Language: English
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extracted text: 1 JM_ ~ wy:E' Ifs JOURNAL MANILA, PHILIPPINES bLUME XIX DECEMBER 31. 1954 NUMBER 12 !:: VJ ,:NTE J. FRANCISCO Editor and Publisher 1../ \ LOPE E. 'ADRIANO RODOLFO J. FRANCISCO Assist.ant Editors ADELA OCAMPO Business Manager ' RICARDO J. FRANCISCO k A'5i•tant Bu•inm Mana .. t i\-- THE LAWYERS JOURNAL i is published monthly by Sen. l Vicente J. Francisco, former delega.te to tht! Constitutional Convention, practising attorney and President of the Francisco College (formerly 1''rancisco Law School>. Li SUBSCRIPTION AND AD. VERTISING RATES: Subscription: P18:00 !or one year; Pl0.00 for 6 months. ,. Advertising: Full page - Pl05.00; Half page - P65.00; EDITORIAL CHRISTMAS MESSAGES JUDGE MORFE UPHOLDS THAT THERE CAN BE THE COMPLEX CRIME OF REBELLION WITH MURDER, ROBBERY, ARSON AND OTHER GRAVE CRIMES SUPREME COURT DECISIONS: Varela vs. Villanueva - Chief Justice Paras People vs. Mendoza - Chief Justice Po.ras Mendoza vs. Caparros - Justice Pablo People vs. Alipao - Justice Bengzon Achondoa vs. Rotea - Justice Padilla Omandam vs. Dir. of Lands - Justice Padilla Lezama vs. Piccio - Justice Montemd.yor Good Day Trading vs. Board of Tax Appeals - Justice Montemayor . Gabriel vs. People & Court of Appeals - Justice Alex. Reyes .. Lara vs. Ayroso - Justice Alex. Reyes People vs. Castro - Justice Bautista Angelo Brownell Jr. vs. Bautista - Justice Bautista Angelo •... ... Brownell Jr. vs. Sun Life Assurance Co. - Justice Labrado1· /Morabc YS. Brown - Justice Labrador People vs. Rangalo - Justice Labrador Cafiaverul vs. Hon. Encarnacion - Justice Concepcion Rosario vs. Nava - Justice J. B. ·L. Reyes . DECISIONS OF THE COURT OF APPEALS: Domasig vs. Ammen Transporation - Justice Gutierrez David . Villarama vs. Pambusco - Justice Rodas · DECISIONS OF THE COURT OF INDUSTRfAL RELATIONS: National Labor Union vs. Malate Taxicab - Judge Bautista . Catholic Church Mart Factory vs. Federation ·of Free Workers (Building Employees Assn.) - Judge Lanting . OPINIONS OF THE SECRETARY OF JUSTICE: . Opinion No. 262 Opinion No. 296 Opinion No. 298 Opinion No. 316 REPUBLIC ACTS: Nos. 1060, 1083, 1084 and 1096 1954 BAR EXAMINATION QUESTIONS: Criminal Law, Political Law, Remerlial Law & _ Legal Ethics :rnd Practical Exe1 ·cises . .. One-fourth page - P-65.00; One-eight page - P35.00 ; One11ixteenth page 1'25.00 Entered as second class mail matter at the Post Office. BUSINESS OFFICE: 1192 Ta.ft Avenue, Manila. Tol. 5-43-55 -i , 58l 582 "' 583 586 594 595 596 597 598 599 600 603 604 606 . 60!1 612 614 615 616 617 619 620 623 624 627 627 628 628 630 632 NOW OFF THE PRESS EVIDENCE (Revised Edition) By VICENTE J. FRANCISCO Member, Philippine Bar Dean, Francisco College Comprehensive commentaries on the law on evidence in civil and criminal cases. Each provision is discussed and illustrated. Contains leading cases decided by the Philippine and American Courts. Lawyers and law students alike will find this revised and enlarged edition a very useful and handy reference. Price: P40.00 Additional Pl.20 per copy for provincial orders. EAST PUBLISHING I 190 Taft Ave., Monilo Tel. 5-4J.55 EAST PUBLISHING 1192 Taft Avenue Manila Tel. 5-43-55 FRANCISCO LAW BOOKS IN SERIES REVISED LIST OF PRICES AS OF NOVEMBER, 15, 1954 Evidence (Civil and Criminal) Civil Law in 4 Vols. P30.90 per volume . Trial Technique and Practictl Court in 5 Vols. Criminal Procedure & Forms in 2 Vols. Criminal Evidence in 3 Vols. R<!viscd Penal Code in 3 Vols. <1954 Edition) .. (P20.60 per \'olumf\ - Additional Pl.20 per book for provincial orders.) J,ubor Laws (1954 Editbnl A~ency Jlusinei;s Law in 2 Vpls. HuRiHP-SS Law in 5 Vols. Pb.60 per volume . Codl· of Commerce .. C1°edit Transactions in 2 Vols. How To Try Election Cases . Insurance Law Introduction tci Law Jurisprudence ••. Land Registration Act Laws on Natural Resourcea ... Lnw fin Transportation in 2 Vols. Lege.I Argumentation and B1·ief Making Legal Bibliography Legal Ethics . Legal History . Legal Research Legal Thesis-Writing .. Negotiable Instrument;; LN-w . Partnership Philippine Law of Waters & Water Rightr; Philipiiine Mining Law Vol. I . Philippine Petroleum Act Vol. II Privnt.: International L&w (1954 Edition> ..• Hevised Election Code (Second Edition) • , , .... Roman Law . , , Hules of C1mrt Vols. I & 11 Securit ies Act 8tatulory Construction ...• , .•..•...•.• , , , ••.. Taxation . Torts and Damages (1954 Edition) . '... . . •.. Pre-Bar Review on Adm. Law & Election Law .. Pre-Bar Review on Civil Procedure CPleadingsl PrCo-Bnr Review on Corporation Law & Sec. Act. Pre.Bar Review on Criminal Procedure . , , , .. Pre-Bur Review on Evidence .... Pre-Bar Review on Land Registration & Mortg. Pre-Har Review on Mercantile Law . . . . •..•. Prt!-Ba.r Review on Political Law Pre-Rar Review on Private International Law . , Pre-Bar Review on Public International Law . STILL IN THE PRESS Administrative Law , , • , , , , p 40.00 Pl23.60 154.50 30.90 46.3.b--'"..j !31.80 • 35.45 8.2:0 25.75 28.00 10.30 :·:;, I Corporation . • . • . • • • . . • • 41.20 p 30901 Civil Procedute (Pleadmgs) 5150 Legal Forms 25.75 Public Corporation . . . 25.7~ ' Public Officers , . . 25Ju NOTE: Puces ure subject to change without notice. For provmcia.1 orders, additional Pl 20 per book 1s charged for ma1hng and handling expenl:les I/ l'f !JJ. r.P U .Nl V1:. H.:::i1. ' •) I" T '' I Lll.lRAlH EDITORIAL - ' A a':~::. "1~~~c o;::t ~~~~1~;:n~htt;~;:t:,~: i:~1::~hacbl~·a~o~~a'~i:tl~a~;~:; true, and offhand 011e cnn cite numC'l'OUs instances not covered by th!! definition. By and large, however, it expresses a great truth. For this is_ indeed the season of thC' year when opportunity and trndition combine to remind man of his spir!tua\ heritage, Once n~ain he will feel the strong urg-c to speak kindly, to believe the best in his fe!Jow men, to give instead of to receive. Once again the flinty heart wi\\ bC' toochrd, th<' sharp tongue curbed and the streak of meanness covered up , As it has done in the past, the spirit of Christmas will come tc us ·in different ways and at different times. To many, it is a date in the calendar, to otl1ers it is a state of the mind. To st·me, it came during that chill r,·ening late 111 November, when the advance guard of ragged str~cr urchms shivering in the· l:.nscasonable cold, went about their neocturnal rounds screech:ng their ir.terpretation of the Christmas carols Car a modest fee cf fi\•e or t<-n centavos. To many more it will come later, in the stacks of Christmas cards, in t11e scrie~ of glittering parties, in b1·illiantly lighted pine trees loaded clown with tissue-wrapped packages. And once again, in the iittle tow11s and villages, t.he sn~all ·'helen" w:ll be set up in the plaza and the old church patio will Le garlanded with bunting and streamers . As the schools close .for the holicb.y, the sense of expectancy will mount, until it can almost be felt, like a fever, or heard, like distant thunder. In school programs all o\·er tl1£! land, a little girl will recite the Night Refore Christmas, the "Gift of the Magi" will be dramatized, and gifts will be exchanged after the last vocal solo and declaimed poem. Over the radio the transformation of Scrooge will again be described, and Anatole France's "0'.lr Lady's Juggler" will i;le re.counted. Even in the battlefield, men who had been killing each ether will lay down "their arms. No war, or battle's sound, Was heard the world around; The idle sprar and shield were high uphung; The hushCd chariot stood, Unstained with hostile blovd; The trumpet spoke not the armCd throng; And kings sat still with awful eye, As if tht!y surely knew their sovran Lord was by. Yes, Christma~ has som"thb g for eve!"ybody - music and poetry, frankincense and myrrh, J>omp and pagcanh"y. Gold and silver for the prince, a · special Christmas package for the pauper. And th£! churches will be full to overflowing with those who believe in the hereafter, and the r.ightclubs jampacked with those who believe in the present . But - suppose this were to be the last Cl1ristmas on earth? If any one exprei:se<i this thought as a statement rather than a question, Ile would of cour.:;e ~ thought a fool or a madman. And yet in the light of world d~Vl'lopm~nts since the last Christmas, why should the thought be far fetcheci? ThP. scientists tell us that man has alreadr penetrated nature's innermost secret of APR 1 Lt 1976 ocPan breeze, hrought death to S<'me fishermen so far a\\ay they clid not see or hear or feel anything. Such a bomb, set off in Siberia, causes effects anci influrnces that can be measured in ?'forth America, and a hundred such bombs could presumably chnni::-c the geograpl1y of an industrial i·cgion as large as Eurnpf'. Now, indeed, man has ar!·ivetl at the most serious crisis in his life. NeYer in his long history of struggle against wild beast, against floods and fires, against di£ease, has he faced a more c\t'SpC!rate situation or a more fearful enemy. For now he finds himself standing against other men, as strong as he i.:>, as '~<'11 equipped with weapons, as full of hatred and vindictiYeness. Only two co\lntries in the world possess the H-bomb and euch h[,s called the other a mortal enemy. What is " to prevent them from making this the last Christmas on earth? Already, we have been told, the cataclysm had been avcned ty the narrowest margin on many occasions. At Yalu, D1enben. phu, Berlin - in half a dozen secret places, the wisdom of dropping the hydrogen bomb had been considered. But at the last moment S'lmebody has faltered, and thus we arc still here to spend another Christmas, But there will certaii1b• be othe1· occasiohs . If not Yalu, then another battleground, if not Dienbenphu "Glory to God in the highest, Peace on earth to men (If goodwill ." T:1is is Christmas, 1954. As we greet ench other, and toast our health and happiness, an uneasy feeling grips our hea1-t, The Y•>ice of the Pri11ce of Peace cannot be heard in the din of heavy tanks mancuvP.ring for prepared positions and in the roar of jct planes w~rming up for practice bombing runs. All arom1d us, m.tions continue building up their armies and stockpiling the s1111. plies and material ca\le1l for by logistic expert. On all sides, l1:i.tred of men for other men . Can anything stay the hand of doom? Over the years we ha\•e lost sight or tht vital mea11ing of t!<at first Christmas . In our search for power and wealth, we have t'orgotten the significance of the Birth in the Manger. We no lr:onger remember that in that stable, !<ings and shepl1er'1S became trothers, that in worshipping the new born God, they we!·e laying the foundation for the brotherhood of men. This is the only thing that can saYo us now. For we cannot cePtinue to live in an atmospher~ that daily grows more tense with mutual ciistrust and animosity. The crisis calls not for mNc c ,ffort to unr:iv<?I the secret of the atom but for more. time and e11thusiasm to understand our· fellow men. Peace cannot lJe est<1.blished by force, not evero. by the force of ten thousand H-b:imLs. It can onl~· cnmc when ·1.·e realize that all men are brol_ hcrs, th:it they need each otllcr, that they must help E:ach other. We must face the reality that we have to liYe together in a cramped world, white men and black men, men of m:: rny belic!s and languages natl customs , ihe structure of matter, and has come into possession of a source In the past we have looked tr our kings and gener<>.ls and c·f energy whose forcr.: cannot yet be accurs.tely measut·ecl. And statesmen to put a stop to this senseless killings, to end this mad from this source he has fast1ioncd a weapon that can exterminate rncc for power. But &,uch a peace cannot be wl"itten in Wasl1inga!I things that crawl, swim or fly and so pollute the earth, the ton, 01" Moscow or Ve1·sailles. !'ea and the ail' that notlling can r.:ver live in them again. Tilis - is not a theory, for in scaled down demonstrations, an island was An enduring peace, :md a just peace. (:an only ·come from l'r\ade to disappear, and the ashes of that explosion borne by an Bi:Jhlehcm. December 31 1 1954 THE LAWYERS JOURNAL 581 CHRISTMAS MESSAGES l am happy to ext.end the Season's greetings to the 1:otaries of jusNce - the members of the Philippine Bench and Bar. We have much to thank for this Christmas. During the year abo1it to end, thirteen million more people passer! to a regime under which the accused is tried and sentencnl wi:thout benefit of counsel. We can call ourselves fortunate fo that we in this co·untriJ cont1'.nue to live under a gov· ernment that recognizes legal representation as part and parcel of our judicial system. Om· legal pmctitioners, no less than the members and admin:istrators of our judician.J, are indispensable if our courts are to be the last bulwark of democratic governm. ent. More power then to our Practising lawyers and to the members of the Be.nch! May they be in the coming yea.1· as tiigilant and untiring in their advocacy of the freedom and rights of the accused as they have been in t~ e pa'>t. RAMON MAGSAYSAY President of the Philippines -Basic in the scheme of democratic governments such Us ours is the concept of government of laws and not of men. Reflection on this t·rui.<mi underscores the importance of accurate, reliable and up-to-date legal publications. The Lawyers Journal fills this need. Published by men of tested legal ability, it has had a satisfying career Clf public service: it has established an enviable and well deserved reputation as a faithful reporle1· of important sta.tutes, judicial decisions and other legal materials, and, with its learned editorials and comments on current legal and judicial events, promotes the cause of enlightened administration of justice. It is a pleasure to join the ranks of the well-wishers of the Jour.nal in wishing it on the occasion of Christmastime long continued success. PEDRO TUASON Secretar'IJ of Justice - I doubt whether any lawyer or judge has not at one time or another been awed by the power of life and d!:ath over his fellowmen which the law has placed in his hands. Through any failing of the lawyer, or any error in judo· r,um,t of the judge, an innocent man may be sent to his death. And no temporal power can hold them to account for their errors: as arbiters of justice, they are responsible only lo God and to their conscience. This thought should be with us during Chri.i:;tmas because we have much to learn and inspire us from the earthly li.fe of our Lord, Jesus Christ. It is not without meanin{J and significance that He was born in a lowly mange-,· and that during His sojourn on earth He did not use His Divine powers to strike back at His oppressors. We can only tr'IJ to follow His Divine example - by approaching our tasks with humility and humanity. I wish the LAWYERS JO URN AL and iny colleagues on the Bench and at the Bar a Joyous Christmas and a Fruitful New Year. P. M. ENDENCIA Presiding Justice Com·t of Appeals I am grateful to the Lawyers Journal for always enabling me to extend to its readers, especially members of the Bench and the Bar, my Christmas and New Year greet· in.gs. The Yuletide brings joy and contentment, not so m.uch in a materialistic sense as from a feeling of piety and spiritual 11.pliftment br.ought about by the celebration of the Nativity of Jesus. Along with the significance of Christmas, the festivities give us time not only to reflect on and be thankful for all the things we have had and enjoyed in the past year, but also to resolve to make the New Year more fruitful and more in line with Christian tenets. The members of the Bench and the Bar, in particular, should integrate their efforts and en.ergies with a view to the attainment of their common objective, a speedy a:nd true administration of justice, - the one thing that wlll spread cheer not only during Christmas but everyday of the year. RICARDO PARAS Chief Justice Supreme Court The year 1.954 with all its achievementtJ and prosperit11 will inevitably close. Before its termination, allow me to make a short message relative to the independence of the Judiciary. We are happy to note that from the implantation of the .4.merican 1·e.qime in these Islands to the establishment of our present Republic, our Courts of Justice have gained the respect of all - not only for their brilliant achievements but also, for having consistently retained their independence. This wa.s made possible by the careful selection of our magistrates by our Chief Executives - choosing them for their good preparation in the Law, their probity, tact and independent judgment. Before entering upon the performance of their duties, they are sworn to administer justice equally to all - without fear or favor. It is to this strict adheren~e to their oath that our Courts have gained universal respect and independence, a state attained with the full cooperation of the members of the Bar who themselves, a~ officers of the Courts, are duty-bound to keep this independence that our Democr'atic insl'itutions may flourish for the benefit of posterity. To this end, the Lawyers Journal has contributed in no small measure, through the publicatfon of the activities of our Courts, fo·r the information and benefit of the people as well as the Bar and the Bench. I would l-ike to · wish the Lawyers Journal continued blessings in its sacred purpose of serving the country in the name of Justice and Democracy. FROILAN BAYONA Executive Judge Court of First Instance of Manila 582 1'HE. LAWYERS JOURNAL December 31, 1954 JUDGE MORFE UPHOLDS THE THEORY THAT THERE CAN BE THE COMPLEX CRIME OF REBELLION WITH MURDER, ROBBERY, ARSON AND OTHER GRAVE FELONIES Judge l\lorfc of the Court of First Instance of Pangasinan in an order issued in G cases' upheld the theory that there exists such a complex crime of rebellion with murder, robbery, arson and other grave felonies. In view of the importance of this question which until now has not been decided by our Supreme Court, we have transcribed hereunder the pertin~nt portions of his order. A QUESTION PR!lltAE lilf PRESSIONIS The f]Uestion of whether thei·c is such a crime as rebellion complexed with murders, etc. under our laws is one of first impression in this jurisdiction, our Supreme Court not having as yet passed upon this question squarely. Consequently, t.hC! opinion cf one Court of First Instance judge on this question is as good as the opinion on it by any ot.her judge of the same judicial level, until our Supreme Court rules on the matter with finality in an appropriate case elevated to it on appeal. · THF.' TARUC DECISION RRPRESENTS THE MINORITY V IEW F rom available materials presently accessible to the presidin~ Judge of this Court it appears that so far there have beC!J decidec l by various Com'i.s of First Instance in this jurisdiction seven (7) rebellion cases, six (G) of which are now pending consideration· by our Supreme Court, all involving the question of whether t here i.-; . such an offense under our Revised Penal Code as rebellion comp!e'>ed with murder, etc. Said cases are the following: Pe0plc v. Lava, Crim. Case No. 14071 of the Court of First Instance of Manila, decided by Judge Oscar Castelo, now before 011r Supreme Court as case G. R. No. L-4974; People v. Hernandez, Crim. Case No. 15841 of tl1e Court of First Instance of Manila, decided by Judge Agustin P. Montesa, now before our Supreme Court as case G. R. No. L-G025; People v. Capadocia, et al., Crim. Case No. 2878 of ',he Court of First Instance of Manila, decided by Judge Magno Gatmaitan, now before our Supreme Court ::i.s case G. R No. L-5796; People v. Salvador, Crim. Case No. 1400 of the Court of First Instance of Bulacan, decided by Judge Manuel P. Barcelona, and now before our Supreme Court as case G. R. No. L-5745; People v. Nava, Crim. Case No. 2704 0£ the Court of First Instance of Iloilo, decided also by Judge Manuel P. Barcelona, and now before our Supreme Court as case G. R. No. L-4907; People v. William J. Pomeroy and Celia Pomeroy, Crim. Ca1<e No. 19HlG, decided by then Judge Felicisimo Ocampo of the Court of First Instance of Manila, decision now no longer in question as the accused did not appeal and instead began serving the sentence meted on them ; and People v. Taruc, Crim. Case No. 191GG decided by J udge Gregorio S. Narvasa of the Court of First Instance of Manila, now before our Supreme Court as case G. R. No. L-8229. Of the six (6) J udges of Court of Fil'st Instance aforementioned, only the Hon. Gregorio S. Narvasa, deciding the Taruc case, held that there is no such crime as rebellion complexed with mur~ der, etc., under our Revised Penal Code. In other words, upon examination of pertinent portions of these seven decided cases constituting persuasive precedents in this jurisdiction on the question under consideration, this Court finds that the Taruc decision invoked by the movants represents the minority view. '/'H IS COURT ADHERl~'S 7'0 1'/IE MAJORTTY VJF.:W This Court is 11ow called uron to considet· the 11e!'suasive precedeJJts set in thl' abO\'l'·mentioned seven cases on thi;:; matter de · cidcd by other J udges of Court of Fir1<t Jno;tancc of this Republic, r.nd ar\opt or reject any or all of -them. After candully consideringthe motions, supplemental motions, oral arguments of counsel for the movants, and reply arguments of the prosecuting officers handling these cases for the State, this Court, for the reasons to be stated farther below, has come to the conclusion, and so holds with the majority of the above mentioned Judges, that the complex crime of rebellion with murder and other grave offenses exists under Art. 48 and related articles of our Revio;ed Penal Code. LEGISLATIVE HISTORY The decisive questior. for determination in connection with the motions under considNation is whether or not murder, arson, robber~', physical injuries, etc., perpetrated as necessary means of Committing rebellion, in connection therewith, or in furtherance thereof, become identified with said offense of rebellion and car.not be used in combination with the latter to increase the penalty as provided in Art. 48 of our Revised Penal Code. For a logical consideration of this question an inquiry into the legislative history of the pertinent provisions of out· Revised Penal Code would no doubt bl' enlightening. The present Revised Penal Code of the Philippines is based mainly un the Penal Code of Spain of 1870 which hao; been in force in the Philippines since July 14, 1887 (U. S. v. Tamporing, 31 Phil. 321). Regarding complex crimes said Penal Code of Spain provided as follows: Art. 89. Las disposiciones de\ articulo anterior no son aplicab!es en el caso de que un solo hecho constituye dos o mas dclitos, o cuando cl uno de ellos sea medio necesario para cc meter cl otro. En estos cases solo impondra la pena co!'l'cspondiente al deJito mas grave, aplicandola en su grado maximo. (P. 677, A lhei-t: The law on Crimes, Fii·st Edition). When the pr<!sent Revised Penal Code (Act No. 38Hi) was a pproved on Decembc1· 8, 19~0 it re-embodied the aforequoted provision ::::f the Penal Code of Spain in alm0st identical words, to wit : Al't. 48. Penalty for compkx crimes.. When a single ac:: constitutes two 01· more grave or less grnve felonies, or wlwn an offense is a necessary means fo1· committing the other, the penalty for the most serious crime shall bl! imposed, the same to be applied in its maximum period. (As amended by Act No. 400). This Court specially notes, in this connection, that until the enactment of our present Revised Penal Code the provision aforequoted regarding complex cl"imes clearly did not apply to the crime of rebellion. Instead, an express provis10n was embodied in said Penal Code of Spain in force in the Philippines since J uly 14, 1887. reading as follows: Art. 244. Los dclitos particulates cometidos en una rebeli6n 6 sedicl6n, 6 con motivo tle ellas, sei:iin castigados respectivamente segun !as disposiciones de este Codigo: Cuando no pueden discubrirse sus auton:s, seran penados como tales los jefes principales de la rebeii6n 6 sedici6n. (p. 707, Albert: Law on Crimes, First Edition) . December 31, 1954 THE LA WYERS JOURNAL 583 JUDGE MORFE UPHOLDS THE ... Upon implantation of the erstwhile American regime in these Islands, Act No. 282, punishing rebellion, was approved on November 4, 1901; and since then up to January 1, 1932 when our pre· sent Revised Penal Code took effect, rebellion was punished, not under said Penal Code of Spain in force in this jurisdiction, but by said special law, Act No. 292. Consequently, the provision on complex crimes (Art. 89, Old Penal Code; Art. 48, Revised Penal Code) likewise clearly did not apply to rebellion from November 4, 1901 to February 1, 1932, because of the express provision of our penal code that offenses which are or in the future may be punished under special Jaws are not subject to the provisions of said Codl'l (Art. 7, Old Penal Code; Art. 10, Revised Penal Code\. Under this set-up the Supreme Court of Spain has decider\ in numerous coses that with the crime of rebellion are merged and identified only the less grave felonies <see Al't. 6 Old Penal Code) if committed in connection with or ,in pursuance of such rebemon, but not the grave crimes defined in said Code. Thus state the pettinent Spanish authorities: Los delitos particulares cometidos en una rebeli6n 6 sedici6n, 6 con motive de ellos, seriin castigados, respectivamente, segun las disposiciones de! Codigo (Art. 227). Se establece aqui que el que en una rebeli6n 6 sedici6n; 6 con motive de ellas, comete otros delitos (v. g. roba, mata o lesiona), sera responsable de estos ademlis de los delitos de rebeli6n 6 sedici6n. Por tanto, en estos cases existira un concurso de delitos punible conforme a las normas correspondientes. Pero la dificJtltad consiste aqzti en separar los accidentes de la rebel161i 6 sediciOn de los delitos independie11tes de estas, y Como las )eyes no contienen en este punto precepto alguno a1ilicable, su soluci6n ha quedado encomendada a los tribunales. La jurisprudencia que estos han sentndo considera como acci· denies de la re/>eli6n 6 uidici6n - cu-ya criminalidad queda em-. bedida en ta de estos delitos, y, por tanto, no son punibles espccialmente - los hechos de escasa gravedad (v. g. atentados, desacatos, lesiones menos ga;aves), y por el contrario, las infracciones graves, como el asesinato o las lesiones graves, s<· consideran como dclitos independientes <le la rebeli6n 6 de la sedici6n. Pero aquellos hcchos de no relevante gravedad (atentados, desacatos, lesiones menos graves) solo podrlin ser considerados como aecidontt>s dP la rebeli6n 6 sedici6n, cuando se eometieron con fines politicos 6 sociales, si falta este especifica finalidad deberan ser aureciados como delitos comunes Conforme a las disposiciones resp~ctivas del Codigo penal. (Calon, Derecho Penal, Torno II, pp. 116-117). El Tribunal Supremo parece que sigue este principio general: las infracciones graves se consideran Como delitos independientes, en cambio l'os hechos de menor gravedad pueden se1· considerados como accidentes de la rebeli6n. Es este sentido el T. S. ha declarndo que son :i.ccidentes de la rebeli6n, los desacatos Y lesiones a la autoridad y otros delitos contra el orden publica (23 mayo 1890). El abuso de supcrioridad tambien e9 inherente el alzamiento tumultuario (19 noviembre 1906). Es cambio, el asesinato de un Gobernador cometido en el curso de un tumulto debe penarse como un <lelito comun d'1 aeesinato (3 febrero 1872). - (Pefia, Derecho Penal, Torno II, pp. 89-90). Such is the rule previous to the enactment of our Revised Penal Code, that is, only less grave felonies committed in connection with or in furtherance of rebellion are deemed merged with the latter as component parts thereof, and such grave offenses as are committed in connection with or in furtherance of rebellion must, under said rule, be punished as independent crimes pursuant to the corresponding article of the Code. The rulings of the Spanish Supreme Court in this regard had obviously in mind Art. 244 of our Old Penal Code which withdrew the crime of rebellion from the operation of the same code's provision relating to complex crimes (Art. 89, Old Penal Code; Art. 48, Revised Penal Code). Then, when oUl" lawmakers enacted Act No. 3815, our Revised Penal Code, they not only retained and re-emphasized the provisions of the Old Penal Code relating to complex crimes, but also C!liminated from our Revised Penal Code said Art. 244 of the old Code. Consequently, this Court is of the opinion, and so holds, that this had the effect of making the provision of Art. 48 of our Revised Penal Code apply, to the rebellion provisions of the latter (Arts. 134, 135), in the sense that henceforth all grave felonies committed with political or social motives, that is, in furtherance of rebellion, instead of being punished separately, are deemed to form part of the complex crime of rebellion with murder or other grave felonies, and that light and less grnve felonies (Art. 9, Revised Penal Code), committed in connection with or in furtherance of rebellion must be deemed as merged with the latter. ERRONEOUS APPLICATION OF PRECEDENT The movants, citing the Taruc decision as a persuasive precedent, invoke in their favor, by analogy, they say, the decisions of our Supreme Court in the following t reason cases: People v. Prieto, L-399, January 29, 1948; People v. Aldawan, 46 O.G., 4299, 4306; People v. lngalla, 45 0. G., 4831-4832; People v. Jardinico, 47 O. G., 3508, 3513. This Court has examined the texts of the decisions in these cases and does not find them to be logically applicable to rebellion cases. These cited cases are treason cases, where two elements must concur to warrant conviction, namely: (1) adherence to the enemy; and (2) overt acts of giving the latter aid and comfort. In the citt>d cases, multiple murders, arson, robbery, etc. were alleged as the very ovel't acts of giving the enemy aid and comfort. Consequently, they must be held as merged with the crime of treason for which the accused were indicted. As Mr. Justice Tuason said in the cited case of People v. Prieto, supra: It is where murder or physical injuries are charged as overt acts of treason that they can not be regarded separately under their general denomination. (People v. Prieto, 45 0. G. 3329, 3338). l\lurder, robbery, arson, and physical injuries alleged in the informations for the complex crime of robbery with murder, etc. now before this Court, are not therein alleged as indispensable overt acts of rebellion. The only indispensable overt act in rebellion is armed uprising against the government. But armC!<l uprising does net nfcessarily require actual shoo~ing. Examples of rebellion or coup d' etat successfully carried out by mere silent marches of superior number of armed men are not wanting in contempomry history. In fact, in the case of · People v. Perez, et al., CA-G. R. No. 9185-R, promulgated June 30, 1954, the Court of Appeals, thru Mr. Justice Dizon, held that rebellion may bC! committed even without bloodshed. When, therefore, armed uprising is staged before popular support to the vaunted cause renq.ers the time ripe for coming out in open rebellion, and as a consequence murders, arsons, robberies and kidnappings become necessary so as to strike terror on those unwilling to join the vaunted cause, such felonies, which are not elements of simple rebellion, render the offenders guilty of the complex crime of rebellion with multiple murder, etc. RE-EXAMINATION AND ABANDONMENT OF ALLEGED PRECEDENT As further authority for the proposiHon that the 1·uling in the above mentioned treason cases also applies to rebellion cases the movants cite the resolution of our Supreme Court of October 11, 1951 in the cases of Nava, et al v. GatmaitaTI, G. R. No. L-4855; Hernandez v. Montesa, G. R. No. L-5964; and Angeles v. Abaya, G. R. No. L-5102. No text of said resolution. is at present avail~ able to the presiding Judge of this Court. At any rate, assuming that such a precedent exists, it is not yet too late to re-examine such precedent and abandon it for good. 584 THE LA WYERS JOURNAL December 31, 1954 JUDGE MORFE UPHOLDS THE .. Considering the provision of Art. 48 of ou1· Revised Penal Code, in relation to the significant fact that the provision of Art. 244 uf our Old Spanish Penal Code of 1870 prnviding for separate penalties for common crimes committed in connection with or in furtherance of rebellion was repealed by Art. 367 of our Revised Penal Code, this Court finds absolutely no justification for the view of the movants that the grave felonies of murder, arson, robberies, kidnappings, etc., committed in connection with, or in furtherance of, rebellion, are merged with the latter and cannot. be separately punished or used in combination with rebellion to increase the penally for the resulting complex crime as provided rn Art. 48 of said Revised Penal Code. For this Court to adhere to said unfortunate and unwarranted rule, claimed by the movants as established precedent in this jurisdiction, would be for it to perpetuate an error under which the bigger offenses of mm·der, arson, robbery, kidnappings, etc. shall, borrowing the words ~f Judge ~on tesa, in spite of meta physicnl and physical impossibility, by pure legal fiction bt' considered absorbed in the lesser offense of rebellion and be left unpunished. The end result would be that ollC committing a single murder for a fancied wrong may be meted the supreme death penalty, but if he organizei;, also for a fancied wrong, an armed uprising, he can commit hundreds of mm·ders:, robberies, arsons, rapes, and kidnappings and yet he subjected only to a maximum of 12 yea1·s imprisonment and r20,000.00 fine. This Court fails to conceive of any logical reason for punishing persons indicted of rebellion with such ridiculously low penalty. Such lenient treatment of murderous rebels might be justified in a monarchical or totalitarian re;:;ime, where people do not enjoy frePdom of speech as a means of agitating for reforms or redress of grie\'ances, and where rebellion is, therefore, the patriotic means and the only effective means of unshackling the people from abuse and oppression; but there is absolutely no justification in a democracy for the use of murder, arson, kid1iappings, rape, or other cruel and wasteful instruments intended as means of realizing o!J.'.. jectives attainable through peaceful, orderly processes of constitutional democracy. · The alleged precedent in\'okerl by the movants is not only inr.rmsi.:>tent with :l sound sense of justice but is also destructive of the social welfare and must better be discarded. This Court consequently chooses to discard said alleged precedent for good, follcwing our Supreme Court's admonition that in balancing conflict;ng solutions, that one should be made to tip the scales as the court may believe will best promote the pubHc welfare in its probabie operation as a general rule or principle. (Rubi v. Provincial Board of Mindoro, 39 Phil. 660). Mr. Justice Benjamin N. Cardozo suggests the same course of action in his following words: But I am ready, to concede t hat the rule of adherence to precedent though it ought not to be abandoned, ought to be in some degree relaxed. I think that when a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment. (Cardozo: The Nature of the Judicial Process, p. l:lO). The same idea was enunciated in a Connecticut Case: That Court best serves the law which recognizes that the rules of law which grew up in a remote generation may, in the fullness of expel'ience, be found to serve anothCl' generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society.. (Dwy v. Connecticut Co., 89 Conn, 74, 99). The modern trend, indeed, is for the courts to abandon a rule when the same is found to be conceived in error, that is, for them to discard in proper cases idolatrous reverence for precedents (Torres v. Tan Chim, SC-G.R. No. 40693, February 3, 1940; Philippine Trust v. Mitchell, 59 Phil. 30, 36). DOCTRINE RELIED UPON NOW ABANDONED The doctrine relied upon by the mova11ts was set down i11 treason cases, but is proposed to be applied to rebellion <:ases simply because Mr. J ustice McDonough, in his concurring opinion, opined that rebelli011 is tl'eason of less magnitude (U.S. v. Lagnoason, 3 Phil. 472, ·184). Said doctrine holds that murder, J'obbery, rape, etc., committed in connection with or in fu ttherance of treason, are merged in and identified with it ~nd cannot be used in combination with it to increase its penalty under Article 48 of the Revised Penal Code (People v. Prieto G.R. No. L-399, January 29, 1048). In other words, there is no such complex crime as treason with murder, etc. in this jurisdiction, but the ruling to this effect has already been abandoned or overruled by our Supreme Court and is therefore of no further force and effect at pre.:ient. 'fhu.~, in a decision promulgated as early on May 12, 1949, our Supreme Court said: ... the verdict of guilt must be affirmed. Articles 48, 111 and 248 of the Revised Penal Code arc applicable to the offensf> of treason with 1m1rder. (People v. Labra, G.R. No. L-1240, May 12, 1949) . . Again, on March 23, 1950 our Supreme Court, in a per curian decision, applied Art. -18 and held the accused guilty of the complex ct;ime of treason with murder, concluding as follows: The Solicitor-General, however, recommends that the p('naliy of death be imposed upon the appellant. Considering that the treason committed by the appellant was accompanied not only by the apprehension of Amei·icans (U.S. citizens) and their delivery to the Japanese Forces which evidently later executed them, but also by kil!ing with his own hands not only one but several Filipinos, his countrymen, and that in addition to this, he took part in the mass killings and slaughter of many other Filipinos, we arc constrained 10 agree to said recommendation. However unpleasant, even painful, is the compliance with our duty, we hereby impose upon the appellant Teodoro Barrameda the penalty of death which will be canied out on a day to be fixed by the trial court within thirty days after the l'f'turn of the record of the case to said court. (People v. Barrameda, SC-G.R. No. L-2584, March 25. 1950, 47 Off. Gaz. 5062-5087). RESUME Our Supreme Court having abandoned its original doctrine t!~at there is no complex crime of treason with murder, etc. in this jurisdiction, but failed to elaborate on the scope of the operation of Art. 48 of our Revised Penal Code in relation to said crime, and by analogy, to thP crime of rebellion defined in Arts. 134 and 135 of our Revised Pe1ml Code, this Court deems it necessary, for the guidance of members of the Philippine Bar applaring in the above entitled rebellion cases. to summarize, in the light' of the foregoing, its conclusions and 1·ulings, as follows: I. The elimination from 9ur Revisetl Penal Code of the provisions of Art. 244 of the Penal Code of Spain of 1870, the retention therein of said code's provision relating to complex crimes, and the embodiment therein of the rebellion provisions of Act No. 2!)2, show that our lawmakers intended to, and did thereby, create the complex crime of rebellion with murder, arson, etc. in this jurisdiction. 2. Considering pertinent legislatiYe history, light and less grave felonies that may be committed in connection with or in furtherance of rebellion must now be deemed as absorbed by, merged in, ancl identified with, said crime of simple rebellion punished in Art~. 13' and 135 of the Revised Penal Code; and jn view of metaphysical and physical impossibility of the greater being absorbed by the lesser, all grave felonies, such as murder, arson, kidnappings, etc. fur each of which a penalty of prisi6n mayor or a still higher one is provided in our Revised Pemd Code, must, if committed with <continued on page 618) December 31, 1954 'J!HE LAWYERS JOURNAL 685 SUPREME COURT DECISIONS Andres E. VMela alias Andrew E. Varela, Plaintiff und Ap· pellant, vs. Jose Villanueva, Etc., et al., Defendants and Appellces, Reyes Villavicencio, and Victoriano H. Endaya, for defendants and appellces. DECIS .I.ON G. R. No. £.3052, June 29, 1954, Paras, C.J. PARAS, C.J.: 1. JUDGMENTS; ANNULMENT ON GROUND OF FRAUD MUST BE EXTRINSIC OR COLLATERAL; PERJURY, NOT GROUND FOR ASSAILING JUDGMENT UNLESS FRAUD REFERS TO JURISDICTION; WHEN FRAUD CONSIDEH· ED EXTRINSIC. - An action to annul a judgment, upon the ground of fraud, will not lie unless the fraud be extrinsic or collateral and the facts upon which it is based have not been controverted or resolved in the case where the judgment sought to be annulled was rendered; and false testimony or perjury is not a ground for assailing said judgment, unless the fraud refers to jurisdiction. Fraud is regarded as extrinsic or collateral, where it has prevented a party from having a trial or from presenting all of his case .to the court. 2. ID.; ID.; ID.; ID.; ID.; ID.; CIRCUMSTANCES P_RECLUDING ALLEGATIONS OF HAVING BEEN PREVENTED FROM HAVING A FAIR TRIAL. - Where it appears that efforts were exerted to discover the whereabouts of the party attacking the judgment; that the petition filed in the intestate proceeding wherein the judgment was rendered specifically alleged that he was the sole heir of his deceased brother; and that the proceedings lasted for quite some time thereby giving him ample opportunity to appear - he can not he said to have been prevented from having a fair trial. 3. ID.; ID.; ID.; ID.; ID.; JUDICIAL SETTLEMENT OR JUDGMENT ON THE MERITS. - Where all claims to the estate of the deceased were actually before the court, each claimant entitled and bound to establish his adverse claim, and upon · a compromise agreement among the parties the court rendered judgment declaring who of said claimants had preferential right to the inheritance, there was a judicial settlement of the controversy and a judgment on the merits which may be annullerl only upon the ground of extrinsic fraud. 4. ID.; ID.; ID.; ID.; ID.; ID.; ID.; RECOGNITION OF NATURAL CHILD EXCLUDES COLLATERAL RELATIVES; FRAUD LEADING TO RECOGNITION MERELY INTRINSIC. - The recognition by the Court of First Instance of a person as acknowledged natural child of the deceased, and accordingly the sole heir of the latter, excluded collateral relatives from inheritance; and the fraud, if any, that lead to such recognition, would merely be intrinsic, not justifying the annulment of a final judgment. , 5. ACTIONS; INTESTATE PROCEEDING, ACTION "IN REM"; JUDGMENT BINDS THE WHOLE WORLD. - An intestate proceeding is an action in rem and the judgment therein is binding against the whole world. 6. PATERNITY AND FILIATION; RECOGNITION OF NATURAL CHILDREN; ACKNOWLEDGMENT MADE IN INDUBITABLE WRITING; BOOK OF MEMOIRS; SIGNATURE OF DECEASED DOES NOT DESTROY ITS AUTHENTICITY AND PROBATIVE VALUE. - Although the book of memoirs indubitably acknowledging C as natural child, was not signed by the deceased, in view of the fact that the entries therein were in his own handwriting and conformed to actual facts, its authenticity and probative value can not be questioned. Mariano R. de Jova and Numeriano U. Babao for the plaintiff and appellant. Claro M. Recto, Jose Perez Cardenas, Jose M. Casal, Francisco G. Perez, Jose Avanceiia, Quintin Par.edes, Eulalia Chaves, Vicente Mariano R. Varela died in Batangas, Batangas, on September 5, 1940 .. /Intestate proceedings ,(No. ·?0708) were instituted in the ~~~:t c~~si~.rs~o!:s~~~=n~:v=~ta~~:s ;:t·i~~r~:;~~ei6~h~~4~:~ia~~ Varela was single at pie time of his death and left as the sole heir his brother, Andres Varela y Villanueva, who had been absent from the Philippines since many years ago and last resided at No. 1343, 122n<t Stre~t. New York City, U.S.A. Effol'ts were immediately exerted bf" Jose Villanueva, through Rafael Villanueva, and by MarceJ> P. AI8y, a servan't and protegee of the deceased, to contact AndreS Varela,· enlisting the a.id and good offices of Francisco Varona, then attached to the Philippine Resident Commissioner in Washington, D.C.; the Division of Territories and Island Possessions, Department of the Interior, Washington, D.C.; the Filipino National Council in New York; the U.S. Secretary of State; and Congressman ·Fred L. Crawford of Michigan. The whereabouts of Andres Varela, however, remained unknown. In the meantime, the petition in the intestate proceedings having been duly published, various collateral relatives of Mariano Varela had entered their appearances, namely, Rosario Rodriguez Varela, halfsister; Faustino Rodriguez Varela, son of a deceased half-brother; Felix Villanueva and brothers, first cousins; Manuel Villanueva and brothers (except Rafael Villanueva), first cousins; Rosario Villanueva and brothers, first cousins; and Rosario Torres Watson and Enriqueta Torres Smith, first cousins. On November 6, 1940, over the opposition of Rosario Rodriguez Varela and Faustino Rodriguez Varela, the court appoint~d Jose Villanueva as administrator. On Pebruary 14, 1941, Rosario Rodriguez Varela and Faustino Rodriguez Varela, on the one hand, and Carmelo Bautista, the latter represented by Josefa Enopia, un the other, executed the following compromise agreement: "ESTE CONVENIO DE TRANSACCION otorgado y suscrito POR: "JOSEFA ENOPIA, mayOl' de edad, Filipina, vecina y residente en el municipio de Batangas, provincia del mismo nom· bre, Filipinas, en representaci6n de su hijo CARMELO BAUTISTA; "ROSARIO RODRIGUEZ VARELA, soltera, mayor de edad, Filipina, vecina y residente en la ciudad de Manila, Filipinas; "FAUSTINO RODRIGUEZ VARELA, mayor de edad, Filipino, casado, vecino y residente en la ciudad de Manila, Filipinas; "ATESTIGUA, Que: "1.0-POR CUANTO Don Mariano Rodriguez Varela y Villanueva falleci6 en el municipio de Batangas, provincia dcl mismo nombrc, el 5 de Septiembre de 1940; "2.0-POR CUANTO Don Mariano Rodriguez Varela y Villanueva falleci6 sin haber dejado testamento y con propiedades ubicadas en la provincia de Batangas quc, de acuerdo con el inventario sometido por el Administrador Don Jose Villanueva monta a P45,251.00; "3.0-POR CUANTO dicho finado 1io ha dejado hijos ni descendientes legitimos, ni tampoco padres o ascendientes legitimos; "4.'-POR CUANTO de conformidad con las disposiciones de la ley, el Unico heredero legal de! finado, con exclusi6n de 586 THE LAWYERS JOURNAL December 81, 1954 todos los otros parientcs, cs un hijo natural reconocido llamado CARMELO BAUTISTA, ahora menor de edad y representado en este documento por su madrc y tutora natural Da. Josefa Enopia; "5.•-POR CUANTO el rcconocimiento de dicho hijo consta en escrito indubitado de! finado Mariano Rodriguez Varela y Villanueva, cuyo escrito obra en poder y se halla bajo la custodia del administra?or Don Jose Villanueva y Romualdez; "6.9-POR CUANTO a- los otros comparecientes, que son media hermana y sobrinn, hijo de medio hermano, consta que cl rcferido finado ha- recollocido publicamentc y continuadamente al jov~nf·Caqnelo Ba~tista como su'\hijo natural y este ha disfrutado pi1blica y continuadamentc ~c tal estado de hijo natural reconocido; ' \ "7.•-POR CUANTO como ya sp-..~hp. di~ho; el referido finado Don Mariano Rodrigu~z Varela y VillanuevD, reconoci6 en vida, publicamente, a Carmelo Bl\utista como sU hijo natural, prcsentandole asi a tDdos sus par(entcs, entre ellos loS' comparccicntes, a sus amigos y a la sociedad en general, atendiendo a su subslstencia y educaci6n y cuidando come un bucn padre de familia de! bicnestar y provenir de su citado hijo: "8.9-POR CUANTO los comparccientes no desean sostener entre si ningti.n litigio para la divisi6n de la herencia, pues a todos consta la legitimidad de! derecho de Carmelo Bautista de reclamar para si, como Unico heredero legal abintestado de! finado, toda la herencia de este, despuCs de deducidas las o-bligaciones que tuviere; "9.9-POR CUANTO por su parte, el hijo natural reconocido Carmelo Bautista, no desea tampoco qucdarse para si con toda la herencia, privando a los hcrmanos y sobrinos de! finado, entre ellos los otros comparecicntes, de toda participaci6n en la herencia. y siendo el deseo de dicho Carmelo Bautista el que todos participen en cierto sentido de la hcrcmcia rclicta por su finado padre; ''POR TANTO, las partes ban convcnido en lo siguicnte: "(:i) En qi.ie el citado Carmelo Bautista sea declarado como hijo natural rcconocido de! finado Don Mariano Rodriguez Varela y Villanueva, y como su (mico y legltimo heredero abintestado; "(b) Que habiendo dejado el finado un hermano llamado Andres Rodl'iguez Varela, el cua! se halla ausente de Filipinas, ignorandose su paradero ignorandose, asimismo, si existe o ha fal!ecido pues de el no se tiene noticias desde hace muchos aiios, el otorgante Carmelo Bautista se compromete a reservar de los bienes que rcciba como su herencia del intestado de SU difunto padre, bienes muebles o inmuebles por su \•alor equivalente a DOCE MIL PESOS (rl2,000.00), en la inte\igencia de que los frutos naturales, industrialcs o de otra indole que perciban los bienes perteneceran al otorgante Carmelo Bautista, quien solo vendra obligado a entrega1· al referido ausente, al tiempo de su presentaci6n, bienes o dinero por valor de 1'12,000.00; "(c) Que el otorgante Carmelo Bautista se co:11promete a entregar a su tia Da. Rosario Rodriguez Varela tan pronto como reciba la herencia de su difunto padre, biencs o metitlico, a elecci6n de esta, en la suma de SEIS MIL PESOS (PG,000.00); "(d) El mismo Carmelo Bautista se compromete a pagar a su primo FAUSTINO RODRIGUEZ VARELA, tan pronto como reciba la hcrencia de\ finado, bienes o met&lic~ por la misma cantidaJ de SEIS MIL PESOS rr6,000.00); "(e) Finalmente, que todas las partes comparecientes en este documento consider3.n este como una transacci6n de sus derechos hereditarios en los biencs relictos por el finado Don Mariano Rodriguez Varela y Villanueva, y renuncian a formular cualquier otra reclamaci6n ahora o en lo futuro que pudiera derivarse de sus derechos hereditarios como parientes de\ referido finado, y renunciando los unos en favor de los otros cualquier derecho que pudiera deriva1·se de su cualidad de herederos abintcstado de\ rcferido finado; "(f) Que en caso de quc el ausentc Don Andres Rodriguez Varela no aparcica o sea dechnado muerto, la participaci6n que se le asigna en este documento acJ"ecera la parte dd hijo natural reconocido y cualquier derecho que Jos otorgantes pudieran tener sobre dicha participaci6n se rcnuncia expresamente por ellos en favor de! hijo natural; "(g) Queda especialmente Convenido y pactado que este documento surtira efecto cntre las partes - en cuanto a las obligaciones monetarias que en su virtud sc contraen - tan pronto como haya sido aprobado por cl Juzgado correspondiente, conviniendo las partes en someter este documcnto a la aprobaci6n <lei Juzga<lo de Tcstamentarias que conoce de! Intestado de! finado Don Mariano Rodriguez Varela y Villanueva. "Lcido este documento por los otorgantes y cncontmn<lolo conforme con lo por ellos convenido, la otorgan su consentimiento firmandolo por octuplicado en la ciudad de Manila, Filipinas, hoy a 14 de Febrero <le 1941. "<Fdo.) ROSARIO RODHIGUE7. VARELA "{Fdo.) JOSEFA ·ENOPIA en representaci6n de su hijo Carmelo Bautista "(Fdo.) FAUSTINO RODRIGUEZ VARELA." On March 25, 1041, a motion was filed by Carmelo Bautista, prnyil~g that he be dedared the sole heir of the deceased Mariano Varela, entitlt:d lo i11herit all his p!·operties; th9.t the above-quoted compromise agreement <attached to the motion) be approved in toto; and that the administrator be ordered to pay, after payment of all debts and obligations, to Rosario Rodriguez Varela and Faustino Rodriguez Varela the amounts due them under said compromise agreement. Upon motion of attorney for some of the claimants, the hearing of the motion was postponed to April 7, 1941. On April 2, Atty. Jose Avancefia, appeared for Rosario Rodriguez Varela, represented previously by Atty. Tomas Yumol. On April 7, 1941, the Court of First Instance of Batangas issued the> following order: "Tratase de unu moci6n prest'ntada por la rcpresentaci6n de Carmelo Bautista, con la coi~currcmci:i. de Da. Ro>'ario Rodriguez Varo:~la, media herm!l.na de! finado Mariano Radriguez Val'cla ~· Villanueva y su sobrino Faustino Rodriguez Varela en la que pide la aprobaci6n de· un convenio que obra unido a los autos en cuya virtud se pidc que se declare al mencionado Carmelo Bautista, como hijo ilatural reconocido de! difunto Mariano Rodriguez Varela y Villanueva, y como ta!, Unico heredcro de los bienes relictos por el mencionado finado, se autorizo al ::vlministrador que yague, con cargo a la herencia, a Da. Rornl'io Rodriguez Val'C'la y a D. Faustino Rodriguez Varela, la suma de PG,000.00 cada uno, reservandose, ademas, de los bienes remanentes del finado, bienes o metfilico, montantes a la suma de 1'12,000.00 que habra de retener a su poder el hijo natural reconocido para ponerlo a disposici6n <lei hermano de! finado llamado Andres Rodriguez Varela, quien se halla ausente de Filipinas desde hace muchos ai10s, ignorandose actualmente su paradero, en la inteligenci'l. de que, los frutos naturales, industriales o de otra indole quc perciban los bienes asi reservados perteneceran al menciona<lo Carmelo Bautista, quien solo vendra obligado a entregar al referido ausente al tiempo de su presentaci6n bicnes o dinero por valor de P12,000.00. "Con fecha de 2S de marzo del prescnte afio, se registro en la Escribania de estl:' Juzgado un escrito de comparccencia por el Abogado D. Claro M. Recto como abogado de Felix Villanueva y hermanos, Manuela Villanueva y hcrmanos (excepto Rafael Villanueva y Rosario Torres Villanueva y hermanos, quienes alegando ser primos hermanos del finado y 'como tales personas interesadas en este intestado, pidieron la posposici6n de la conDecember 31, 1954 THE LA WYEns JOURNAL sideraci6n de la moci6n de Carmelo Bautista que estaba seii.atada para el 2 de Abril de 1941. El Juzgado, proveyendo a dicha moci6n, pospuso la vista para esta fecha. "Llarnada la vista de esta moci6n en cl dia de hoy, previa notificaci6n a las partes intel'esadas, el Escribano di6 cuenta. de que se ha recibido en la escribania un escrito firmado por el abogado Sr. Recto en la que con la conformidad de sus clientes, se retiraba de su representaci6n. Ninguna otra persona comparecio por dichos opositores. Don Felix Villanueva, uno de dichos opositores, se limito a comparecer como abogado del administrador y manifesto en corte abierta que habiendo firmado el administrador su conformidad a la moci6n, el no tenla objeci6n a su aprobaci6n. Por el mencionado Carmelo Bautista compareci6 el Abogado Jose M:. Casal y Rosario Rodriguez Varela y Faustino Rodriguez Varela comparecieron asistidos de su abogado Sr. Jose Avanceii.a, quien manifesto unirse al moclonante a los efectos de pedir la aprobaci6n_ de\ convenio de transacci6n unido a los autos. "Examinados los autos, resulta, que el finado Don Mariano Rodriguez Varela y Villanu£::va no ha dejado hijos ni descendientes legitimos, por lo que bajo las diposiciones de la Icy son llamados a su sucesi6n los pariente colaterales quienes' resultan ser hermano de doble vinculo llamado Andres Rodriguez Varela, Da. Rosario Rodriguez Varela y su sobrino, hijo de medio hermano, Faustino Rodriguez Varela, quien debera concurrir a la herencia con ella por derecho de representaci6n. "Trata.ndose como se trata, de una sucesi6n intestada, los parientes mas pr6ximos excluyen los mas remotes y por consiguiente los hermanos y sobrinos excluyen de la herencia los primos y <lamas parientes en el mismo grado que estos. "Resulta ta.mbien. que dicha Da. Rosario Rodriguez Varela y su sobrino Faustino Rodriguez Varela, que como quedo dicho son llamados a la sucesi6n de este intestado por ministerio d,e 1a ley, reconocen, en virtud del documento cuya aprobaci6n se pide, que el finado Don Mariano Rodriguez Varela y Villanueva, ha dejado un hijo natural reconocido publicamente llamado Carmelo Bautista y este, como tal hijo natural reconocido, vienc a sucederle en sus derechos y acciones y demas bienes con la exclusi6n de todos los parientes colaterales. "Y resultando, que este convenio se ha hecho por los comparecientes, Rosario Rodriguez Varela y Faustino Rodriguez Va1·ela, en perjuicio aparente de sus propios intereses, puestv que el reconocimiento quc en el documento hacen de la existencia de un hijo natural reconocido del finado y de la posesi6n pUblica que este hijo natural ha gozado de su estado de hijo natural durante la vida de! finado, los excluye de toda participaci6n a la herencia de esta, el Juzgado no halla otra a!ternativa mas que apt·obar este convenio en los terminos en que esta redacta.do, salvando cualquier derecho que pudiera tener el hermano ausente AndrCs Rodriguez Varela, en el caso de que compareciere. "EN SU VIRTUD, con la aprobaci6n de\ convenio unido a los autos otorgado por Carmelo Bautista, representado por su tutora Da. Josefa Enopia, por un !ado, y Da. Rosario Rodriguez Varela y Faustino Rodriguez Varela por otro, se declari al joven Carmelo Bautista como hijo natural reconocido del finado Mariano Rodriguez Varela y Villanueva con derecho a sucederle en todos sus bienes y se ordena al administrador a que de los fondos que tenga en su poder o de los que pudiera procurarse con los bienes relictos por el finado, pague a Da. Rosario Rodriguez Varela y Faustino Rodriguez Varela la suma de PG,000.00 cada uno, en cumplimiento de los terminos del convenio." On October 29, 1942, the administrator filed a petition for the delivery of the properties to Carmelo Bautista and for the closing of the intestate proceedings. On January 28, 1943, the court ordered Carmelo Bautista to fill' a bond for P12,000.00 to secure the payment of the amount due under the compromise agreement to Andres Varela, his heirs or successors-in-interest, or that a lien in the same amount be noted in Certificate of Title No. 5418 covering the land one half of which corresponded to Carmelo Bautista. Upon petition filed by the administrator on February 1, 1943, the court issued an order on February 2, declaring the intestate proceedings closed. On January 2, 1946, Andres E. Varela alias Andrew E. Varela, filed a complaint in the Court of First Instance of Batangas against Jose Villanueva and others, in the main praying that the order of April 7, 1941, issued in Special Proceedings No. 3708 be annulled and that Andres V.Prela be declared the sole ~eir of his deceased brother Mariano Varela. On October 7, 1947, Andres Varela filed an amended complai~t with practically the same prayer. Plaintiff's theory is that' the defendants Jose Villanueva, Rafael Villanueva, Josefa Enopia, Rosario Rodriguez Varela, Faustino Rodriguez Varela, Jose Perez Cardenas and Jose M. Casal conspired together in fraudulently causing the Court of First Instance of Batangas to issue the order of April 7, 1941. After trial, the court rendered on August 12, 1948, a decision the dispositive parts of which read as follows: "WHEREFORE, jtidgment is hereby rendered as follows: "(a) The plaintiff is ordered to deliver the possession of the properties : to Luisa Villanueva the land described in Transfer Certificate of Title No. 3271 of the Province of Batangas, the cadastral lot! Nos. 971 and 968 of the Municipality of Batangas, and the pro-indiviso one-half share of the land describl!d in the Original Certificate of Title No. 139, Province of Batangas, and the following personal properties, a mirror and a small marble table parted in the middle which Andres Varela had taken; to Jose Villanueva, the land covered by Transfer Certificate of Title No. 3677, Province of Botangas; to Felisa Vergara and her minor children the land described in Transfer Certificate of Title No. 4021 of the Province of Batangas; to Encarnacion Samos and her minor children a portion of 7/12 share of the land described in Transfer Certificate of Title No. 3800 of the Province of Batangas; and to the minor children of Ca1·melo Bautista, namely, Carmen, Romeo and Fe, all surnamed Varela, the undivided one-half share of the land described in the Transfer Cetrificate of Title No. 5418 of the Province of Batangas, the parcels of land described in Tax Declarations Nos. 63881, 53205, 59595 <which is a portion of the land described in Transfer Certificate of Title No. 342 of the Province of Batangas) , and 48758, all of them in the Municipality of Batangas, Batangas, and an undivided one-half share in the land described in the Original Certificate of Title No. 140 of the Province of Batangas, all of which are identified as the properties described in letters I, J, K, L, M and N of paragraph 5 of the amended complaint, and the following personal properties, eight chairs, two tables, two wardrobes, one bed and one desk. The defendant Luisa Villanueva has presented no proof of the value of the mirror and the small marble table, neither the minor children of Carmelo Bautista have of. fered proof of the value of the personal properties abovedescribed, all of which had been taken from them by the plaintiff, and, therefore, the court is not in a position to i·ender a money judgment against the plaintiff for the value of the said furniture and fixtures in the event that their i·e-delivery cannot be effected; "(b) The plaintiff is hereby sentenced to pay to Jose Villanueva the sum of fl,026.73 damages suffered by him for the wrongful attachment of his properties with legal interest from the date of this decision; "(c) The plaintiff is sentenced to pay to the minor children of Carmelo Bautista the amount of 1'6,492.50 the value of 209 cavans of palay, and P30.00 the value of 62 gantas of corn, and to deliver 13 gantas of mongo, the value of which han not been proven, and also to pay P150.00 the proceeds of 588 'rHE LA WYERS JOURNAL December 31, 1954 the sale of coconut fruits with legal interest thereon from the date of this judgment; "(d) The plaintiff is sentenced to pay Luisa Villanueva the total sum of P'3,270.00 the value of palay harvested and income received from the land with legal interest from the date of this decision; and "(d) The complaint is hereby dismissed with costs against the plaintiff, and the attachment levied upon the properties of the defendants Jose Villanueva and Luisa Vilanueva, as also the notice of lis pendes recorded on the back of the titles of the properties belonging to the defendants, the subject mattM of the present litigation, are hereby ordered discharged n•1 I cancelled." The plaintiff Andres Varela has appealed. To start with, we may state that the present action was filed three years after the final closing of the intestate proceedings of Mariano Varela, and that the rule is that an action to annul a judgment, upon , the ground of fraud, will not lie unless the fraud be extrins!c or collateral and the facts upon which it is based have not been controverted or resolved in the case where the judgment sought to be annulled was nndered, and that false testimony or perjury is not a ground for assailing said judgment, unless the fraud refers to jurisdiction CI.abayen vs. Talisay-S!lay Milling Co., 68 Phil. 376>: that fraud has been regarded as extrinsic or collateral, where it fois prevented a party from having a trial or from presenting all cf his case to the court (33 Am. Jur., pp. 230-232>. The reasOn fo;· this rule has been aptly stated in Almeda et al. vs. Cruz, 47 0. G. 1179: "Fraud to be ground for nullity of a judgment must be ~x trinsic to the litigation. Were not this the rule there wc» 1ld be no end to litigations, perjury being of such common OC<'Jrrence in trials. In fact, under the opposite rule, the losing party could attack the judgmer:.t nt any time by attributing imaginary falsehood to his adversary's proofs. But the settled Jaw is that judicial determination however erroneous of matters brought within the court's jurisdiction cannot be invalidated in another proceeding. It is the business of a party to m~t and rept!I his opponent's perjured evidence." The deceased Mariano Varela left a book of memoirs in his own handwi:iting discovered by the administratDr Jose Villanueva among his belongings, which book was presented in evi.!encc as Exhibit "!". The following entries are contained in said book: "1920. Josefa Enopia se unio conmigo en la noche dcl dia sabado 16 de Oct. de 1920, en Manila y estuvo toda la Mche conmigo. "<Exhibit 1-a) "1921. El 16 de Oct. de 1920, dia en que apadrine a Ramon Tarn:ite, fue. la primera vez en que Epay Enopia durmio conmigo en Manila, y desdc entonces una vez al mes durmiamor juntos, hasta el 4 de Feb. 1921, que l<!'a carvanal. "Desde el mes de Diciembre dijo que el\10 estaba en cinta. "Julio. El dia 16 sabado 11 :SO p.m. dio a luz un niilc . De modo que a los nueve meses considiendo en el mismo dia Sabado y fccha 16, daba a luz. "En el reqistro civil en el Municipio aparece registrade el casamientD de Josefa Enopb con Gaudencio Bautista, el 19 de Junio de 1921, este es su antt:rior pretendiente, que yo fui r·1·eferido y aceptado a el. "No me cabe duda que este chiquillo es mio. "El dia Domingo 22 de Enero de 1922, fiesta del pueblo, yo fui el padrino de este niiio, a peticion de toda la familia y se Je puso el nombre de Carmelo. "(Exhibits 1-b and 1-c.)" The foregoing entries formed the principal basis for the ex<!Ctl· tion of the compromise agreement between Rosario Rodriguez, Varda and Faustino Rodriguez Varela, on the one hand, and Josefa Enopia, in representation of Cat·melo Bautista, on the otl:er, which in turn led to the order of the Co<.1rt of First Instance of Batangas dated April 7, 1941, declaring Carmelo Bautista as acknowledged natural child of Mariano Varela. entitled to succeed to all his estate, As Rosario Rodriguez Varela and Faustino Rodriguez Varela \Hre represented by counsel both in the execution of the compromise agreement and in the hearing . for the apprDval by the Court of r1rst Instance of Batangas of said comprom!se agreement, it cannot be contended that they were not aware of the true facts surl'OUnding the procl!edings. Indeed, thf'y uncomplainingly acceptE>d the benefits of said agreement. As already stated, at the commencement of the inte~tate proceedings, a thorough search for the whereabouts of Andres Vn!!la was made, and an available agencies were asked to lend their assistance in locating him. Even Marcelo Alay, a witness for the ~laintiff and a protegee of Mariano Varela, himself made necessary inquiries. Indeed, in his letter written on June 22, 1941, to the Resident Commissioner in \Vashington, he made t~e special request that Andres Varela be advised to attend to the properties and wealth left by his brother Mniano Varela, because some ottier interested parti~?<: were taKing charge of s~id wealth amounting to more than P200,000.00 at the same time informing that Andres was the nearest and rightful heir of his brother Mariano, It is difficult to believe that Andres Varela was purposely preventerl. f~om having or deprived of his day in court because, firi;t, in the petition filed in the intestate procP.edings by Jose Villanueva, who ':as appointed administrator of thE' estate of Mariano Varela, it \\as specifically alleged that Andres was the Slllt heir of his deceased brother l\fariano Varela; secondly. no stone was left unturned in discovering the whereabout.; of Andres Varela; and, thirdly, the intestate proceedinJ?s lasted for quite some time, having lwen started vn September 16, 1940 and finally closed only on February 2, 1943, thereby giving ample opportunity for Andres to apr:cnr. That there was not the least intention to disinherit Andres Varela, although the existence of Carmelo Bautista as acknowJpdged natural child of the deceased Mariano Varela, necessnrily c:xcluded him and other collateral relatives, is shown by the fact that provision was made in the cllmpromise agreement, resening to him the share of P12,000.00, which was twice as much as the share i:rranted to Rosario Rodriguez Varela and Faustino Rodd· J!Jez Varela. There can be no question about the authenticity and probative value of the book of memoirs, since even plaintiff's principal witness, Teofilo Gui (confidential sec1·etary of Mariano Varela), testified that the entries the1·ein are in the han<lwriting of Mariano; nlthough more than two months after said testimony was given, Teofilo was recalled to the witness stand, and in redirect examinat.i.on declared that he admitted that said memoirs are in the handwriting of Mariano Varela, because, when the book was handed to him in the former hearing, he saw the name Mariano R. Varela ap· ~earing on the back thereof. Th:s rather belated explanation is unconvmcing. Moreover, while some opposing attorneys secured copies of the entries in Exhibit "I'' for e.'l:nmination by the NB! handwriting experts, they had failed to submit in evidence any such E:xamination or analysis. The force and effect of the a.!knowledgment mv.de by Mariano Varela tn his book of memoirs of Carmelo Bautista as his natural S'ln is sought to bP nullified by the plaintiff-appellant, by contend~ ing that Josefa Enopia, mother of Carmelo was married to Gauciencio Bautista on June 19, 1921, &nd thnt Carmelo was born during said marriage. There is, however, ample evidence tending to flhow that Josefa was forced by her father to marry Gaudencio and that, prior to and after her marriage to Gaudencio, she never had any carnal contact with him; that in the 'decision of the Court cf First Instance of Quezon City rendered on March 10, 1941, from which no appeal was taken, the marriage of Josefa to Gaudencio was declared null e.nd void, and Josefa•'s childf.en were declared to have never been neither legihm'lte nor illegitimate children of December 31, 1954 THE LAWYERS JOURNAL 689 Gaudencio. 'fhe regularity of the annulment proceedings, apart from being legally presumed, is borne out by the testimony of Juan Solijon, a lawyer 2nd a witness for plaintiff-appellant, pnd of course by that of Josefa Enopla and her lawyers. In Spccial Proceedings No. 3708 of the Court of First Instance of Batangas, claims to the e~tate of Mariano Varela W('rc actually before the court, a rrecting Rosario Rodriguez Varela, Faustino Rodriguez Varela and scvera\ oth(!r first cousins of Marit.no, and even the ylaintiff-appellant himself, as alleged in the petition filed by Jose Villanueva; and said claims logically were in conflict with the Inter claim interposed on behalf of Cannelo Bautista. The court was called upon to d('termine who of said claimants had preferential right to the inhe1·itance, and each claimant of course was entitled and bound not only to dispute Carmelo's all<'ged 1·ight but also to establish his adverse claim. The issue thus ]"•resented, was disposed of in the order of April 7, 1941, appro\•ing the compromise agreement entered into bet\veen Carmeio Bautista, represented by Josefa Enopi3, and Rosario Rodriguez Vir<'la and Faustino Rodriguez yarela, lhe two MS.rest kin next to Carmelo that necessarily excluded the c-ther collateral relatives. Thrre was accordingJy a judicial sett\cmf>nt of the controversy, and ~aid order of April 7, 1941, was no less a judgment on the merits which may be annnlho d only upon the ground of extrinsic fraud. The plaintiff-appellant has fail<'d to demonstrate notwit.hsla11,..ling his elaborate effort;;, that there was such extrinsic or collateral fraud as would justify the setti11g aside of the order of Aplil J. 1941. As already noted, he car.not be said to have been p1·evented from having a fair trial. On the contrary, it may be said that the plaintiff was rather indifferent to his interests, because, although he had been absent from the Philippines since 1910, he nf:ver took the trcuble or precauthn of informing his brother Mariano of his whereabouts from time to time, and likewise failed to J(ive any instruction;; to anybody who could protect his righ~s. knowing that, as early as 1!133, ht:: was, as regards his brothe.r Mariano, the nearC'st kin who might succeed to his estate in case of death. 1'he imJl]ication that follows is that the plaintiff-appellant in effect had abandoned his hereditary rights in the Philippines. It is improbable that, as claimed by him, he had stayed in the mountains in the United Sh.tes recuperating from rm illness from 1939 to 1943, without any facility for correspondence to the Philippines, especially when it is recalled that he admitted that he was not so sick that he cc-uld not write if he wanted to. His claim that there was no mail in the place, is also of little moment, since he could have commissioned somebody to go to the r1earest post office, there being no pretense that his situation was such that he was cnt from all sorts of communication. At the risk of repetition, much less can Jose Villanueva be charged with having wished to eliminate plaintiff nppellant from succeeding to the estate left by Mariano Varela, as J ose Villanueva himself alleged in his petition filed in the intestate proceedings that the sole surviving heir of Mariano was Andres Varela, and he made C'Xtensive inquiries about his whereabouts in the United States. The fraud which plaintiff-appellant has attempted the show unde1· the evidence presented in the court below, consists of mis· represente..tions about the existence of Carmelo Bautista as an acknowledged ne.tural chi!~ of Mariano Varela. Assuming that there were falsities on this aspect of the case, they make out merely intrinsic fraud which, as already noted, is not sufficient to annul a judgment. And yet we agree with the trial court that the evidence preponderates in favor of the conclusion that Carmelo Bautista had been shown to be an acknowledged natural child of Mariano Varela. Appellant likewise tried to proved, through the testimony of Rosario Rodriguez Varela and Fausf,ino Rodriguez Varela that the latter had sign!!d the compromise agreement without reading :its contents. In the first place, Rosario Rodriguez Varela and Fn.ustino Rodriguez Varela have now aligned themselves with appellant's c2.use, for the obvious reason that their share in foe inherit. ance would be much greater if Carmelo Bautista is excluded. In the seeond place, the allegation of Rosario Rodriguez Varela that she did not speak English Caad therefore could not ur:derstand the compromise agreement) is negatived by the fact foat P.aid ngreement was written in Spanish; and Ros:ario testified in Span· ish. In the third place, l)osario tf:slified that at the signing •'11ly she, her nephew Rafael Vil\anUe\"a, and Attys. CardenM and Casal were present, and yet her ner,hew stated that they were !lC· c::ompanied by their lawyer, Atty. Godofredo del Rosario, and that Josefa Enopia was there once. Indeed, Goc!ofredo de! Rosario rind Jvsefa Enopia signed the agreement, the> fh·st as a witness and the latt~r as a party. In the fourth place, Faustino Rodriguez Varela admitted tha.t he spoko? Spanish, and he was thcref£>re in a position to be a'Yare of the contents of the compromise agreemrnt. In the fifth place, both Rosario Rodriguez V.a1:cla ar,d Faustino Rodriguez Varela had filed their claims as colbteral re· latives, were r~presented by counsel, opposed the appointment ()f Jose Villanueva as administrator of the estate; and it is improbable that they would sign any compromise agreement without !leing certain of the true facts. Jn the last place, the claim of Ftmstino Rodrigocz Varela that he and Rosario signed the document in a hurry, because Atty. Cardenas wanted to bring it to Batangas, and that he signed when told by his attorney that, :f something wrong was discovered la~r, he should be informed thereC·f, is apparently without ri.ny basis; since the compromihe agreement was not submitted k the court until March 25, 1~41, the motion for its appro\•al was not t:eard until April 7, 1941, and tite agreement hnti been signed as early as February 14, 194L Moreover, it is surprising that, notwithstanding the advice of his counsel to inform him if something wrong was discovered, nothing was done from 1941 to the date of the filing of appellant's complaint, although it is admitted that copy of the agreement was given to Faustino Rodriguez Varela at the latest, after having been paid what was stipulated in said agreement. Atty. Jose Perez Cardenas explained the steps leading to the signing Qf the cfJmpromise agreement and he testified that Atty. Jose Avancefia, representing Hosario RfJdriguez Varela and Faus· tmo RodrigUez VRrela, was g1ve1! a draft which finally gave to his two clients !'0,000.00 each, m1ci that at the signing of the document Rosario and Faustino wc1·c t>.ccompanied not only by Atty. Avanceiia but also by Atty. Del Rosario. It is significant that neither of said attorneys was placed on the witness stand by up}JE:Jlant to negative Atty. Cardenas' testimony. Appellant presented in evidence, to show that Cannelo was the child JosP-fa Enopia with Gaudencio Bautista, a baptismal certificate <Exhibit "D"), purporting to show that Carmelo was their legitimate son. It appears, howe"er, that on cross-examination, Reverend Father Eustaquio Daite, who testified that the certificate was an exact copy of the original admitted that th.e word "legitimate" did not appear in the Parrochial book. Exhibit "CC" was also presented, a supposed copy of the original recrird of the marriage of Josefa and Gaudencio and yet it does not oontain the r.otation made by the civil registrar regarding the annulment of said marriage. These omissions wer(' taken by the trial court as indications of a false claim on the part of plaintiff-appellant, and it is not without foundation. The testimony l)f Teofilo Cui tv the effect that Jose Villanueva had told him that they should prodt:ce a son of the cleceast::d Ma?"ianl' Varela so that they could get a portion of his estate, is rather incon~il'ltP-nt with the frankness of Jose Villanueva in alleging in the petition filed in the intestate proceedings that the sole heir of Mariano was his brother Andres, plahtiff-appellant. Considering that Teofilo had presented a claim against the estate of Mariano Vareh in the amount of P2,840.00, which, in view of the opposition of Jose Villanueva was, reduced to P300.00, it is easy to under~tand why Teofilo could not have been without any motive for tettifying against Jose Villanueva. · Antonio Villanueva, another witness for appellant, declared that he heard Atty. Cardenas su::;gest that· they should present somebody as a son of Mariano Varela, because of the claims filed by Rosario Rodriguez Varela and Faustino Rodriguez Varela. 590 THE LAWYERS JOURNAL Derember 31, 1954 The veracity of this witness is again doubtful, it appearing that hf' alleged having heard the conversation after the war or during the war, when the intestate proceedings took place in 1940 and 1941 and Carmelo's . claim was filed long before the war; and that said conversation was in the law office of Attys. Cardenas and Casal at 34 Escolta, Manila, '"hen it is beyond que~tion that said office was on the second floor of the National City B<1.nk Building at Juan Luna, Manila, at the institution of the intestate proceedings. Exhibits "F'' and "G" were presented by plaintiff-appellant th£: first being an affidavit of Josefa Enopia tending to show that she was induced to testify before the Court of First Instanca of Batangas that Carmelo Bautista was the son of Mariano Varela, \\hen in fact he was a child of Gaudencio Bautista; the second being an affidavit of Cristina Marajas, Carmelo's widow, to •he effect " that she was returning the property she had received Mtf'r £he learned the..t her deceased husband Carmelo was not a natural child recognized by Mariano. We a1·e inclined to give no weight to said exhibits, which have been repudiated by Jos.efa and Cristina during the trial. · Appellant argues that he cannot be bound by the compromise ngreement because he was not a party thereto. In answer it is sufficient to state that the intestate proceedings were in · rem and the judgment therein, declaring Carmelo Bautista the si.;le heir of the deceased Mariano Varela, w:u therefore binding against the whole world. Section 44 (a) cJ Rule 39 of the Rules of Court 11rovides that: ·•in case of a judgment or order against a spee;fic thing, or in resp<1 ct te> the probate of a will, or the administration of the estate of a deceased person, or in respect to the per!'\'.m!i.1, political, or legal condition or relation of a particular person, the judgment or order is conclusive upon the title of the thing, the will or administration, or the condition or relation of the person; however, the probate of a wilt or granting of lett.~rs of administration shall only be vri'M facie evidence of the death ('f the testator or intestate." As aptly commented by Chief Justice Moran, subdivision Ca) refers tn jud'!lllents in rem. Thus, a judgment rendered in connection with a petition for the probate of a will is bindin2' upon the whole world. A judgment conc<'rnil~g personal, political. or legal condition or relation of a particular person, as, for instance, a judi?m~nt in intestate or testate proccedin1?9, declaring who the heirs of the deceased pc1 son are, or a judgmettt in an app!icati<Jn for citizenship, or a judgm~nt adjudging a persr>n to be a spendthrift, may be considered a!! a j1.1dgmcnt in rem, bindinR' on th~ whole world." C Moran, Comments on the Rules of Court, 2d Ed. Vol. II, p. 704.l Even if the plaintiff Andres Varela had appeared and active· iy taken p:irt b Speciai Proceedings No. 5708, the result wo~ld have been the sume, in the sense that the recognition by the Court of First Instance of Batangas of Carmelo Bautista as acknowledged natural child of Matfano Varela, and accordingly the sole heir of the latter, ·would also have excluded appell&nt from any inheritance, being merely a collateral relative; and the fraud, if any, that would lead to such recognition, would merely be intrinsic, not justifying the annulment of a final judgmPnt. The present case should be distinguished from that of Anu!'an vs. Aquino, 38 Phil. 29, wherein the estate of the deceased Amb!'osio Aquino was awarded and d@livered to the de>fendant Ana Aquino, because, although the latter and the administrator knew that the plaintiff Florencia Anuran was the surviving spouse of Ambrosio Aquino, and that the defendant Ana was not a legitimate but only n. natural daughter of the deceased sister Ambrosio, the said Ana Aquino and administrator, without notice to the widow, and acting in collusion, fraudulently procured "the entry of the order in the administration proceedings approving the delivery of all the e'l~nte to Ana Aquino. It will be noted tr.at in the Anuran case the mere appearance of the plaintiff Florencia Anuran (preve~ted from ~aving a trial) changed the result of the order sought to be annutied. Plaintiff apoellant invoke3 the reservation containeti in the order of April 7, 1941, namely, "salvando cualqukr d~recho que pudiera tener el hermano ausente, Andres Rodriguez Varela en t:I ca;;o que compareciere.'' It appears, however, that said rc-servation is recited in the course of the order, and not in the dispositive pa•t declaring Carmelo Bautista as the acknowledged natural son of Mariano Varela, entitled to succeed to his estate. The dispositive part logically excludes the recognition of any successional right on the part of the appellant, and that this was the sense of the Clrder is shown by the fact that, after Carmelo had put up a bond in the amount ".>f P12,000.00 to answer for the obligation in favor of appellant, as convenanted in the comp~·t;· mise agreement approved by the court, the intestate proceedings were declared definitely closed. The Clause, "en el caso que con1· pareciero" should merely mean that appearance by the appelle.nt contemplated therein was to be within the period before the final ctosing of the proceedings. Neither is there anything irregular in the action of the trial court in making an express finding to the effect that Carmelo Bautista, under the evidence presented in the present case, was an acknowledged natural child of the deceased Mariano Va:ela. As ex.plained in the appealed judgment, although the order of April 7, 1911 was final and not. tainted with extrinsic fraud, the trial court had to make a pronouncement of fact under the evidence 11resented by appellant which, however, bad reference merely to intrinsic fraud. Thf' book of memoits, indubibbly evidencing Carmelo Badista's recognition by Mariano Varela as the 1atter's acknowledged natural child, is assailed by plaintiff-appellant for not being i!ign. ei:J by its author. This criticism is of no moment, because the C'ntries thereir1 are in the handwriting of Mariano and proved to be so by the very key witness for appellant, Teofila Gui. We l·ave Plsewhere pointed out thP. rearnn why the attempt of appellant to luwe Teofilc Gui, upon being recalled to the witneS$ stand two months after his direct examination, explain his damnging testimony, may not be believed. In this connection, it mar be added that. in at least two inrtances cited in the appealed decision. the entries in the book have bee11 shov.'J1 to conform to the actusl facts. We quote from said decision: "For instance the Jast entr}' en page 26, which reads: El 16 de Oct. de 1920, dia en que apadrire a Ramon Tarnate, etc., x x x is fully corroborated by tht> marriage certificate Exhibit 1-F, wherein it is shown that on October 16, 1920, Ramon Tarnate was married to Mercedes de la Peii.:i, and one of thf' sponsors or witnesses to the wedding was l'llariano R. Varela. Again, the second entry appearing on page 25, which read!=>: Mi buena y querida Mama fallecio en mi cuarto, sentada en mi butaoa, el ~ de Sept. dia Domingo y dia de la Correa, las 4:45 )').m. de 1918, y al dia sigUiente fueron sus funerales en este pueblo de BatangM, x x x is also confirmed by the death certificate of Julia Villanueva, the mother of Mariano Varela, wherem it :s shown that said Julia Villanueva died on September 8, 1918." Plaintiff·appellant capitalizes the circumstance that Carmelo had used the surname Bautista, to show that he was not the child of the deceased Mariano Varela. Apart from the denial of Josefa Enopia, Carmelo's mother, and Cristina Marajas, his widow, the use of that surname finds its explanation in the fact that Josefa Enopia was forcibly married by her father to Gaudencio Bautista to protect her honor, and it Fhould be an indiscretion on her part to let the people know, by using the surname Varela, that Carmelo and her other children are those of Mariano Varela to whom she was not married. The same explanation controls with reference to the circumstances that Josefa did not reveal her reJation9 with Mariano until the latter's death. Appellant contends that the trial court erred in not finding that Jose Villanueva did not include in his inventory in Special Proceedings No. 3708 the jewelries belonging to appellant and his l:rother Mariano Varela which were taken by defendant·appellee Jose Villanueva. According to appellant, the eollection of jewelriE:s and coins referred to was worth P234,569.00 as early as 1910. and he even went to the extent of describing the various items; and in 1983, when appellant learned through }Us brother that his mother and sister had died, the estate left by these two was worth ... t le!l.st P280,000.00. Appellant's theory is hard to sustain. There December 311 1954 THE LAWYERS JOURNAL 691 is evidence to show that in 1912 the properties Df Sinforoso Varela. iather Qf appellant and Mariano Varela, were sold at an execution sale to satisfy a debt of only Pl,500.00, and this is quite inconsistent with the existence of the jewels claimed to have l'~en "looted" by appell1:e Jose Villanueva. At the time the appellant leiarned of the death of his mother ar.d sister, he was earning only <>11ough to cover his expenses :md save a little, and yet, if he was certain that there W<>re such jewels as now claimed by him, he r.ever bothered about returning to the Philippines to receive his s!lare in the fortune. It cannot be said that he trusted his relatives in the Philippines, because no .sooner had he learned of the death of his brother Mariano than lie lost no time in returning home. The trend of appellant's evidence is also to the effect that appellee Jose Villanueva grabbt:d the valuable jewels and coins left by Mariano Varela in the p~·e~ence of appellant's witnesses, like Teofilo Gui, Marcelo Alay and Aurea Lumagup. In the ordinary course of things, if Jose Villanueva really intended to take pC1ssession of Mariano Varela's jewelries and coins he would . have done so surreptitiously. Moreover, as elsewhere adverted to, Teofilo Gui's claim against the estate of Mariano Varela was opposed by administrator Jose Villanueva and this left Teofilo with at least some motive for being hostile to the former. Upon the other hand, Marcelo Alay and Au::-ea Lumague might themselves have been biased, in that the fil'st admittedly had a quanel with the V1\lanuevas because the latter ordered the cutting of Marcelo's banana pl;mtation which caused him damage, and they told him to leave the house where he was staying, for Mrs. Villanueva Was going to burn it; and the second admittedly was working for and "bl-ing supported by the appellant in his house at the time of the trial. On top of these, although Jose Villanueva submitted to the court the required inventory of the properties of Mariano Va. rela as early as December 14, 1940, no opposition was registere-d thereto, notwithstanding the fact that Rosario Rodriguez Val'1?la and Faustino Rodriguez V2rela appeared in the intestate proceedings and even assailed the appointment of Jose Villanueva as administrator. We have found .nothmg wrong in thl' agreement for attorneys' fees between Atty. Jose Perez Cardenas and Josefa Enopia. At.ty. Cardenas represented the interest of Carmelo Bautista, agreeing- to bear all the expenses of the litigat10n, on condition that he would receive one half of everything awitrded to Carmelo. The fee is clearly contingent, and as A.tty. Ca:cdenas ultimately received less than P20,000.00, it cannot be h-:!ld that the fee was expensive, much less unconscionable. Indeed, the arrangement was submitted to and approved by the court. For the rest, we agree to the appealed decision as regards the various propertit?s that passed to the defendants-appellees nursuant to and as a result of the recognition of Carmelo Bautistr. as the sole heir of ,t;he deceased Ma1iano Varela, in relation to the compromise agr~ment .between Josefa Enopia, in representation of Carmelo Bautista, and Rosario Rodriguez Varela and Faui.tmo R<>clriguez Varela. The trial court has particularized the properties thus conveyed, as follows: "PROPERTIES CONVEYED TO LUISA VILLANUEVA: "By virtue of the aforesaid order of the court of April 7, 1941, and in order to comply with that portion of the orr'!er to pay to Rosario R. Varela and Faustino R. Varela the fl'.lm of P6,000.00 to each, the administrator filed a motion in ctourt on June 6, 1941, praying the C{JUrt to approve the deed of sale over four pat"cels of land, the first, is co..-ered by Original Certificate of Title No. 5417 of the Province of Batangas, registered in the exclusive namE' of Mariano n. Varela, single CExh. SS>; the second and third, are cadastral lots Nos. 971 and 968, which until now arc not covered by any To?'rens title. but their tax declarations appear in the exclusive name of Mariano R. Varela <Exhs. 55-1 and TT>; and the fourth is covered by original Certificate of Title No. 0-139 of the Provincf' of Batangas, in the names of Mariano R. Varela, sing~e, and Andres R. Varela, single, pro-indiviso and in equal shares <Exhs. GG>, and the total assessed value of the .said four parcels is P2,127 .00, which said administrator has executed in favor .,f Luisa Villanueva, a defendant in the instant case, for the sum of Pl0,000.00. After consideration by the court of the aforeSaid motion the same was approved. The adn1inistrator received from Luisa Villanueva the amount of Pl0,000.00, which together with an additic.nal sum of P2,000.00, that the administrator took from the funds of the estate, making a total of 1"12,000.00, was paid to Rosario R. Varela and Faustino R. Varela, each, receiving ·the sum of P6,000.00, receipt of which was acknowledged by thetri. The Original Certificate Df Title No. 5417 has already been cancelled by Transfer Certificate of Title No. 3271 which is now in the name of Luisa Villanueva. Luisa Villanueva took immediate possession of the property through her overseer, treated and dealt with it as her own. However, when Andres Varela arrived in Batangas Che arrived in August 1946), and with the help of other persons, he took possessiDn of the property without the consent of its ownur, Luisa Villanueva, depriving her of the use and enjoyment thereof and of the fruits therefrom. "ADJUDICATED SHARE TO ANDRES E. VARELA IN THE INTESTATE ESTATE OF MARIANO VARELA: "In the agreement Exh. E-1, Andres Varela was given a sh3re :in the estate of his deceased brother equivalent to Pl2,000.00 which Carmelo Bautista agreed to satisfy either lo movable or immovable properties in the event that said Andres Varela would be found alive, and in the order on April 7, 1941, the court provided that out of the properties which Carnie-lo Bautista shall receive as inheritance there shall be reserved for the use and benefit of Andres Varela properties either movable or inmovable equivalent to the v~lue of Pl2,000.00. In compliance with the said agreement and order of the oourt. the property described in the Original Certificate of Title No, G418 of the ProYince of Batangas, i·egistered in the name of Maris.no R. Varela and Andres E. Varela pro-indiviso and in equal i;l1ares, the half portinn pertaining to Mariano R. Van~la in said land which has been adjudicated to Carmelo Bautista as part of his inheritancf' was made 1:(' answer of an encumbrance in favor of Andres VHrela for the imm of Pl2,000.00, ag appears duly noted on the said title CExhs. FF and JJJ). "PROPERTIES CONVEYED TO JOSE PEREZ CARDEN 4S AND PORTIONS OF THEM SOLD TO JOSE VILLANUEVA. JOSE M. CASAL. AND RAFAEL VILLANUEVA "On May 29, 1941, attorney Cardenas filed a motion in the intestate proceedings praying t?lat his attorney's fees as ag1·eed upon in the contract for atto!'ney's fees of November 18, 1940 CExh. 4-A), he ordered paid by the heir Carmelo Bautista by delivering to said attorney C&rdenas one half of the pro_perties inherited by Carmelo B.r..utista from the estate, After hearing thereon, the court, on June 16 1941, approved the contract for ~ttorney's fees and it ordered that one-half of the properties inher ited by Carmelo Bautista be delivered to i::aid Attorney Cardenas. Upon a notarial document dated June 19, 1941 CExh. DD-ll, execUted by the administrator in favor of attorney J ose Perez Cardenas, the former conveyed to the lat· ter certain real and personal properties taken from the share of Carmelo Bautista of his inheritance in the estate of his deceased father in full payment of Jose Perez Cardenas attorno.Jy's fees. The real properties consist of four parcels with the improvement thereon, the first is that covered by Transfer Certificate of Title No. 41194 of the Province of Batangas, registered in the exclusive name of Mariano R. Varela, single Exh. RR); the second is that covered by Tr~n!J:fer Certificate of Title No. 2584 of the Province of Batangas, registered in the exclusive name of Ma1·iano R. Varela, single . <Exh. PP-12>; the third is that portion pertaining to Mariano R. Vil.rela of an undivided interest of 7/12 share in the property covered by Original Certificate of Title No. 30998 of the Province of Batangas, registered in the names of Mariano R. Varela and Andres E . Varela, in an undivided 592 THJ<~ LA WYERS JU URN AL December 31, 1954 Interest of 7/12 share for Meriano R. Varela and 5/12 share for Andres E. Varela <Exh. DD>; and the fourth is that p-lr· tlon pertaining to Mariano R. Varela of an und:vided interest of 7/12 share in the property covered by Original Certificate of Title No. 30997 of the Province of Batangas, registered in the names of Mariano R. Varela and Andres E. Varela, in an undivided interest of 7/ 12 she.re for !\lariano R. Varela and 5/12 share for Andres E. Varela <Exh. EE>. And the per· sonal prope1-ty consists of a gold ring with small diamonds appraised in the inventory for P60. 00. "'Transfer Cerlificate of Title No. 41194 was cance1led by Tra!lsfer Certificate of Title No. 62344 issued in the name of Jose Perez Cardenas <Exh. RR-1), and later sold by him to Victoria G. de Laperal of Manila, on Oct.ober 27, 1941 CExh. RR-2>, and this purchaser is not a party defendant in the case. "Transfer Certificate of Title No. 2584 was cancelled by Transfer Certificate of Title No. 3318 issued in the name of Jose Perez Cardenas (Exh. PP-13), who caused the subdivision of the land into four lots, namely, lots 869-A, 869-B, 869-C, and 869-D (Exh. PP-8). For lot 869-A, a new Transfer Certificate of Title No. 3697-A (Exh. PP-1) was obtained in the name of Jose Perez Cardenas, and portions thereof had been sold by Cardenas to several purchasers, the sales having been .duly noted on the title, and said purchasers are not parties defendants in the ease (See memorandum of ineumbrances on back of title) ; Lot 869-B was conveyed to Jose M. Casal (Exh. PP-5), who $ecured in his name Transfer Certificate of Tit.IE" No. M76 (Exh. PP-2), and later sold by him to Jose Linatok rExh. PP-10), said purchaser having obtained in his name Transfer CertificatE' of Title No. 4021 lExh. 2-Linatok), and said last purchaser is a defendant in the case; Lot 869-C was conveyed to Rafael Villanueva (Exh. PP-6), who secured in his name Transfer CertificatE' of TitlE" No. 3678 (Exh. PP-3), and portions thereof had been sold to several purchasers. thfl sales having been duly noted on the title and said purchasers are not defendants in this case; and Lot 869-D was conveyed to Jose Villanueva (Exh. PP-7), who seeured in his name a new Transfer Certificate of Title No. 3677 (Exh. PP-4L "The third parcel of land conveyed by the administrator to Jose Perez Cardenas in payment of his attorney's fees was that described as cadastral lot No. 355 of the Municipality of Batangas without reference to any Torrens Title. It appears, however, that said lot No. '355 with the improvements thereon is covered by Original Certificate of Title No. 30998 of the Province of Batangas, l'egistered in the names of Mariano R. Varela and Andres E. Varela in an undivided interest, 7/12 share for Mariano R. Varela and 5/12 share for Andres E. Varela (Exh. DD). The interests and participation of 7/12 of Mariano R. Varela was conveyed to Jose Perez Cardenas and a new Transfer Certificate of Title No. 3523 was issued in the joint names of Jose Perez Cardenas and Andres Varela in an undivided interests and in the proportion of 7 /12 for Jose Perez Cardenas and 5/ 12 for Andres E. Varela, respecting and preserving the share of Andres Varela (Exh. DD-3). The share that accrued to Jose Perez Cardenas was conveyed by him to Encarnacion Sames (Exh. DD·5), and a new Transfer Certificate of Title No. 3800 was issued in the joint names of Encarnacion Samos and Andres Varela in an undivided interest and in the proportion of 7/12 for Encarnacion Samos and 5/12 for Andres Varela (Exh. DD-2). Encarnacion Sames together with her minor children Amelia Villanueva and Rafael Villanueva, Jr., are defendants in this case. "The fourth and last parcel of land conveyed by the ad· ministrator to Jose Perez Cardenas in payment of his attorney's fees is described in the conveyance as cadastral lot No. 861 of the Municipality of Batangas without reference to any Torrens title. It appears, however, that said parcel of land is covered by Original Certificate of Title No. 30997 of the Province of Batangas registered in the joint names of Mariano R Varela and Andres E. Varela in an undivided interest and in the propo1-tion of 7 /12 for Mariano R. Varela and 5/12 for Andres E. Varela (Exh. EE). The share of 7/12 pertaining to Mariano R. Varela was conveyed to Jose Perez Cardenas, and a new Transfer Certificate of Title No. 3522 was issued in the joint names of Jose Perez Cardenas and Andres Varela in an undivided interest and in the proportion of 7/ 12 and 5/ 12, respectively {Exh. 11-1). "PROPERTIES ADJUDICATED TO CARMELO BAUTISTA AS HIS SHARE · IN THF. INHERITANCE: "The properties adjudicated to Carmelo Bautista consists of real and personal properties as shown in the document Exh. JJJ: "(a) The share of Mariano R. Varela in the parcel of lap.d situated in barrio Galincanto, Municipality of San Juan, Batangas, described in the Original Certificate of Title No. 5418 registered in the joint names of Mariano R. Varela and Andres E. Varela pro-indiviso and in equal shares CExh. FF>, "(b) That parcel of land, without Tonens title, declared under Tax Declaration of real property No, 63881, situated in barrio San Jose, Batangas, Batangas, in the exclusive name of Mariano R. Varela (Exh. VV). "(c) That parcel of land, without Torrens title situated in barrio San Jose, Batangas, Batangas, r£'gistcr£'d in the exclusive name of Mariano R. Varela undel' Tax Declaration of real property No. 33205 (Exh. WW). "(d) That parcel of land situated in barrio Sambat, Batangas, Batangas, with an area of 2,264 sq. m., which is a portion of a larger mass of land described in the Transfer Certificate of Title No. 342 of the Province of Batangas in the names of Ward B. Gregg and others which had been sold to several persons, among them Mariano R. Va1·cla, the names of the purchasers al'e given in the attached list to the deed of conveyance executed by the said Ward B. Gregg and others (Exh. 50-A), and the portion sold to l\lariano Varela is the same land described in Tax Declaration of real property No. 89328 in the name of Mariano R. Varela (Exh. XX). "(e) That parcel of land described in the Original Certificate of Title No. 39494 of the Province of Batangas registered in the exclusive name of Mariano R. Varela (Exh. 51). and which is the same land mentioned in the Tnx Declaration of real property No. 46758 in the name o_ f Mariano R. Varela (Exh. YYL "(f) That parcel of land situated in barrio Cuta, Batangas, Batangas, known as Lot No. 102 of the Cadastral Survey of Batangas covered by Original Certificate of Title No 140 of the Province of Batangas ( Exh. HH), in the joint namc3 of Mariano R. Varela and Andres E. Varela, pro-indiviso and in equal shares. Although the title contains no notation of the interest pertaining to Carmelo Bautista, obviously, the interest and patricipation acquired by Carmelo Baulista could only b~ that of his deceased father. "(g) And those movables, large catties, and a credit agamst Dorotea Ylagan for fl,000.00 mentioned in the document. of dt>livery (Exh. JJJ). "PROPERTY CONVEYED TO MELECIO ARCEO: "Melecio Arceo is made a defendant in this case for having purchased the cadastral Jot No. 14076 situated in the barrio of San Jose, Batangas, Batangas, containing an area of a little over 40 hectares, from the administrator of the estate of Mariano R. Varela, deceased, which sale was duly approved by the court in said' intestate proceedings of .Mariano R. Varela, Civil Case No. 3708 (Exhs. 1, 1-A, 1-B, 1-C and 2-Arceo). The December 31, 1954 THE 1,AWYERS JOURNAL 098 594 consideration paid by the purchaser Arceo in the amount of P150.00, apparently seems to be out of reasonable proportion to the area of the land sold, but the documents have shown that the purchaser had certain acquired rights over the land for having purchased it from another person other than Mariano R. Varela, and to compromise the conflicting claims, for the land was also claimed by the estate of the deceased Mariano R. Varela, the administrator sold the interest of the estate for the amount of P150.00, which fact was made to appear in the motion of the administrator when the deed of sale was ::iubmitted to the court for approval (Exh. 1-Arceo). "From the documents presented by defendant Arceo, It appears that by virtue of writ of execution issued by the Court of First Instance of Manila on September 6, 1910. i.;p,)n a judgment obtained by 'Jose T. Paterno, Alf:.acea del :"inark> Maximina M. A. Paterno, demandante, contra Sinforoso R. Varela, demandado', in Civil Case No. 1330-54, the Provincial Sheriff of Batangas levied execution upon certain parcels of .lanrl of the defendant Sinforoso R. ·Varela situated in barrio Bilogo, Batangas, Batangas, containing an mea of about 40 hectare!.>, to satisfy a money judgment against said Sinforoso R. Varela in the sum of Pl,500.00. The sale of the attached property of Sinforoso R. Varela was effected on January 18, 1912, and the judgment debtor having failed to redeem the property within the time fixed in the law, the Provincial Sheriff of Batangas executed a definite deed of sale on July 10, 1913, in favor of Jose T. Patemo, the purchaser at the execution sale. The documents also show that the defendant Arceo had acquired his right, title, and interest to the land which is now as Cadastral Lot No. 14076 from the successors in interest of the said Jose T. Patemo. "PROPERTY CONVEYED TO JOSE LTNATOK: "Under the amended complaint, Lucia Linatok, the oldest daughter of Jose Linatok, deceased, and Felisa Vergara, the surviving spouse of said deceased, for herself and as guardia'n ad litem of her ipinor children Silvestre, Artemio, Adelaida and Julita, all surnamed Linatok, have been included as parties defendants herein. The reason for their inclusion is the fact that Jose Linatok in life purchased from Jose M. Casal lot No. 869-B of the Batanga.c: Cadastt·e containing an area of 54,768 square meters, more or less, situated in the Municipality of Batangas. "The proofs demonstrate that in the lifetime of Jose Linatok, and to be more specific, on July 4, 1944, he purchased from Jose M. Casal said Lot No. 869-B for the sum of P130,000.00 of which P4,000.00 were genuine Philippine currency and the balance Japanese :Military notes, that said lot is now covered by Transfer Certificate of Title No, 4021 of the Province of Batangas issued in the name of Jose Linatok, married to Felisa Vergua; and Jose M. Casal acquired said lot from Jose Perez Cardenas who obtained same from the estate of Ma· riano Varela in Special Proceeding No. 3708 of this court a!l part payment of the fees of said attorney Jose Perez Car<lenas; that said lot was a part of a greater mass of land covered by Transfer Certificate of Title No. 2584 of the Province of Batangas, registered in the exclusive name of Mariano R. Varela, and was accounted as property of the deceased in the inventory submitted by the administrator in the estate of Mariano Varela, deceased; that prior to the sale to Jose Linatok, said lot was covered by Transfer Certificate of Title No. 3676 of the Province of Batangas in the name of Jose M. Casal, free from any lien or encumbrance; that the Torrens title No. 4021 in the name of Jose Linatok, manied to Felisa Vergara, is also free from any lien or encumbrance whatsoever; that Jose Linatok died in the year 1945, leaving as his surviving heirs the defendants Felisa Vergara and their children Lucia, Silvestre, Artemio, Adelaida and Julita; that due to the last war, Jose Linatok in life and his heirs after his death were not able to take immediate possession of said property, and said defendants we1·e able to take possession only after the liberation of Batangas from the Japanese and remained in possession thereof for several months only, because shortly after the arrival of plaintiff in Batangas he forced the tenants in the land in question to quit paying their respective monthly rentals to defendants herein, but instead to him; that actually plaintiff is in possession of said Lot No. 869-B. "From the proofs, the court finds that Jose Linatok in whose name Transfer Certificate of Title No. 4021 of the land records of the Province of Batangas now stands is a purchaser for value and in good faith, and that his surviving heirs, de· fendants herein, have been deprived by the plaintiff of their possession thereof." The trial court correctly hold that, in respect of contain trans· fers involved in the litigation, the different purchasers paid valuable consideration and on the faith of the titles covering the properties, and accordingly they are purchasers for value and in good faith. Upon the whole, we find the appealed decision to be supported by a preponderance of the evidence, unaffected by the fact that part of the lost testimony had been retaken. Wherefore, the appealed judgment is affirmed and it is so or· dered with costs against th'e plaintiff-appellant. Bengzon, l'tfontemayor, A. Reyes, Jugo, Bautista Angelo, Lnbrud. or and Concepcion, JJ., concur. Pablo, J., took no part. Justice Padilla took no part. 11 Tht. People of the Philippines, Plaintiff and Appellee, t•s. Arturo Mendoza, Defendant and Appellant, G. R. No. L-5877, Sept<'mber 28, 1954, Paras, C. J. BIGAMY; MARRIAGE CONTRACTED DURING THE EXISTENCE OF THE FIRST MARRIAGE IS VOID "AB INITIO"; NO JUDICIAL DECREE IS NECESSARY TO ESTABLISH ITS INVALJDITY.-A subsequent marriage contracted by any person dudng the lifetime of his espouse is illegal and void from its performance, and no judicial decree is necessary to establish its invalidity. A prosecution for bigamy based said void marriage will not lie. Solicitor General Pompeyo Diaz and Solicitor Felicisimo R. Rosete for the plaintiff and appellee. Nestor A. Andrada for the defendant and appellant. DECISION PARAS, C.J.: The defendant, Arturo Mendoza, has appealed from a judgment of the Court of First Instance of Laguna, finding him guilty of the crime of bigamy and sentencing him to imprisonment for an indet.!!rminate term of from 6 mon'ths and 1 day to 6 years, with costs. The following facts are undisputed: On August 5, 1936, the appellant and Jovita de Asis were married in Marikina, Rizal. On May 14, 1941, during the subsistence of the first marriage, the appellant was married to Olga Lama in the City of Manila. On Feb· ruary 2, 1943, Jovita de Asis died. On August 19, 1949, the appellant contracted another marriage with Carmencita Panlilio in Calamba, Laguna. This last marriage gave rise to his prosecution for and conviction of the crime of bigamy. The appellant contends that his marriage with Olga Lama on May 14, 1941 is null and void and, therefore; non-existent, having been contracted while his first marriage with Jovita de Asis 011 August 5, 1936 was still in effect, and that l'jis third marriage to Carmencita Panlilio on August 19, 1949 cannot be the basis of a charge for bigamy because it took place after the death of Jovita THE LAWYERS JOURNAL December 31, 1954 de Asis. The Solicitor General, however, argues that, even assuming that appellant's second marriage to Olga Lama is ·void, he is not e:<empt from criminal liability, in the absence of a previous judicial annulment oJ said bigamous marriage; and the case of People vs. Cotas, 40 0. G. 3154 is cited. set aside, the offense to the vows taken and the :ittack on the family exists.' " Padilla and M011tema11or, J.J .. concur. III The decision invoked by the Solicitor General, rendered by the Court of Appeals, is not controlling. Said case is essentially dif- Pedro Mendoza, Plaintiff-Appellee, vs. Justina Caparros et af., ferent, because the defendant therein, Jose Cotas, impeached the Defendants. Paulino Pelejo, Defendant-Appellant, G. R. No. L-5937, validity of his first marriage for lack of necessary formalities, January 30, 1954, Pablo, J. and the Court of Appeals found his factual contention to be with- 1. SALE; DAMAGES IN CASE OF EVICTION.-The seller of out merit. a parcel of land who is obliged "to defend it now and always In the case at bar, it is admitted that appellant's second mal'riage with Olga Lama was contracted during the existence of his first marriage with Jovita de Asis. Section 29 of the Marl'iage Law CAct 3613>, in force at the time the appellant contracted his seoond marriag£> in 1941, provides as follows: Illegal marriages.-Any . marriage subsequently cont~acted by any person during the lifetime of the first spouse of such person with any person other than such first spousP shall bP illegal and void from its performance, unless: (a) The first marriage was annulled or dissol~ed; (b) The first spouse had been absent for seven consecutive years at the time of the second marriage without the sp!:mse present having news of the absentee being alive, or thl' absentee being generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, thP marriage so contracted being valid in eithPr case until declared null and void by thP competent court. This statutory nrovision plainly makes a subsequent marriage ccntracted by any person during the lifetime of his first spouse illegal and void from its performance, and no judicial decree is necessary tci establish its invalidity. as distinguished from mere annulable marriages. There- is here n<' pretence that appellant's sec· ond marriage with Olga Lama was contracted in the belief that the first spouse, Jovita de Asis, had been absent for seven consecutive year~ or generally considered as dead, so as to render said marriage valid until declared null and void by a competent court. Wherefore, the appealed judgment is 1·eversed and thP. defendant-appellant acquitted, with costs de oficio. So ordered. Pablo, Bengzon, Jugo, Bautista Angelo, Concepcion, J. B. L. Reyes, J .J., concur. REYES, J., dissenting: I dissent. Article 349 of the Revised Penal Code punisbes with prisi6n ma!fur ''any person who shall contract a second or subse<juent marriage before the former marriage has been legally clissolved.'' Though the logician may say that where the former marriage was void there would be nothing to dissolve, still it is not for the spouses to judge whether that marriage was void or not. That judgment is reserved to the courts. As Viada says, "La sentidad e importancia de! matrimonio no permite que los casados juzguen por si mismos de su nulidad; esta ha de somcterse prccisamente al juicio de! Tribur.al compctente, y cuando este declare la nulidad d£>1 matrimonio, r ~olo entonces, se tendra por nulo; mientras no exista esta declaracion, la presuncion esta siempre a favor de la validcz <lei matrimonio, y de consiguiente, cl que contrae otro Segundo antes <le di<'ha declaracion de nulidad, no puede menos de incurrir la pena de este articulo.'' (3 Viada, Codigo Penal p. 275.) "This is a sound opinion," says Mr. Justice Tuason in the casP of People v. Jose Cotas, (CA), 40 0. G. 3145, "and is the line with the well-known rule established in cases of adultery, that 'until by competent authority in a final judgment the marriage contract is against just claims presented by anyone," answers for damages in case of eviction or in case the buyer or his heirs is deprived of the thing bought or part of it by final judgment. And although it was not put in writing on the deed of sale still the seller is responsible for eviction. 2. FORENSIC PRACTICE; PARTIES IN CASES OF DAMAGES IN CASE OF EVICTION.-If the buyer of a parcel of land brings action for damages under Article 1548 of the new Civil Code (Article 1475 of the old Civil Code), the action does not lack any fundamental legal pl'inciple in including the seller as one of the defendants.· Pedro Ynsua for the defendant-appellant. Coce & Coce for the plaintiff-appellee. PABLO, M.: El Juzgado de Primera Instancia de la provincia de Quezon declar6 probados los siguientes hechos: El 11 de junio de 1921 Agapito Ferreras vendi6 a Paulino PeJejo dos parcelas de terreno descritas en la decisi6n (Exh. C) y situadas en Camag6n, municipio de Alabat, provincia de Quezon, en la suma de P3,650. En 15 de febrero de 1932 el demandado Paulino Pelejo vendi6 las mismas parcelas a los esposos Victoriano Mendoza y Bernabela Tolentino (Exh. D). Estos failecieron en 31 de jullo de 1934 y 8 de agosto de 1933, respectivamente, y sus herederos Pedro, Leandro y Justiniano, todos apellidados Mendoza, otorgaron una partici6n extrajudicial (Exh. A), declarando que, como herederos de sus difuntos padres, adjudicaban dichas parcelas a Pedro Mendoza (Exh. A-1). En marzo de 1935 Agapito Ferreras obtuvo el certificado original de titulo No. 1345 de dichas parcelas. El 6 de abril de 1951 sus herederos otorgaron una partici6n extrnjndicial (Exh, E), en ''irtud de la cual el certificado de transferencia de titulo No. 10350 se expidi6 a favor de Justina Caparros, Socorro y Policornia Ferreras, estas dos Ultimas hijas de la primera. Que dichas parcelas fueron registradas £.rr6neamente; pero no consta que se haya emrleado mala fe de parte de Agapito Ferreras, ni de su viuda Justina Caparras e hijas Socorro y Policornia al obtener el registro; que fos verdaderos duefios de las parcelas son Victoriano Mendoza y Dernabela Tolentino a quienes fueron vendidas por Paulino Pelejo, y al fallecimiento <le los mismos, es su heredero Pedro L. Mendoza que es el demandante. El juzgado dict6 decisi6n ordenando al registrador de titulos de la provincia que cancelara el certificado de transferencia de titulo No. 10,350 y, en su lugar, expidiese otro a nombre de Pedro L. Mendoza, casado con Alfonsa Perez. Los demandados, con excepci6n de Paulino Pelejo, fueron condenados a pagar las costas. Las demandadas Justina Caparros e hijas Socorro y Policornia no apelaron. En 19 de febrero de 1952 Paulino Pelejo present6 una moci6n de reconsideraci6n pidicndo que, de acuerdo con su contrademanda, se dictase sentencia a su favor en la suma de P500, cantidad que el pag6, en concepto de honorarios, al abogado que le defendi6 en la presente causa. El juzgado deneg6 dicha moci6n, y contra esta orden apel6 Paulino Pelejo directamente ante· este Tribunal. El apelante contiende que su inclusi6n como demandado en la December 31. 1954 THE LAWYERS JOURNAL 595 presente causa es "completamente infundada y con carUcter malic:iosa, per cuanto que no sc le puede considerar como parte necesaria ni como parte indispensable para la disposici6n complcta y definitiva de la causa de acci6n del demandante," basa su reclamaci6n en la articulo 2208 de! C6digo Civil nucvo que dice asi: "In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except: x x x (4) In case of a clearly unfounded civil action or proceeding against the plaintiff;" El demandado vendi6 a los padres del demandante las parcelas de terreno con la siguiente condici6n: "de( ender ahora y siempre contra reclamaciones justas de quien las presentare." De acuerdo con esta condici6n, el demandado responde del seneamiento, en P<tras, C.J., Bengzon, Padilla,, Montemayor, Jugo, Brmtista Angelo, y Labrador, J.J., conformes. IV The People of the PhilippincJ, Plaintiff and Appellant, vs. Irenea Alipao, Defendant and Appellee, G. R. No. L-7251. October 18, 1D54, Brngzon, J. 1. CRIMINAL PROCEDURE; CONTINUANCE, WHEN IT SHOULD BE GRANTED. - Where a continuance is ashd for the first time on the ground that the witnesses can not appear in court because of the inclement weather, it should be granted, caso de cvicci6n, o en el caso de que el comprador o su heredero 2. fuese Privado de la cosa comprada o parte de la misma por - sentencia firme, y, aunque no se hubiera puesto en la escritura de venID.; ID.; RIGHT OF DEFENDANT TO SPEEDY TRIAL; LIMITATION THEREON, - The right of a defendant to speedy trial should not be carried l:il the extreme of practically denying the prosecution its day in court for causes beyond its control. ta dicha condici6n, todavia seria responsable el vendedor de la evicci6n (art. 1548, C6d. Civ. nuevo, y Art. 1475, C6d. Civ, antiguo.) ~::n~o i~~l::i~:n::;t~e~::s::!~ ~:a <l~:nae~::~risaa?bia J;s~!~::en:~ Assistant Solicitor General Guillermo E. Torres and Solicitor autos: al contrario, pedfa en su demanda "in case cancellation or .lleW011 G. Soliman for the plaintiff and appellant. reconveyance be impossible, that the defendants (el apelan.te es uno de ellos) or any of them be required to pay the herein plaintiff the purchase price paid by the plaintiff's predecessor in interest." Indudablemente fundada su acci6n en la condici6n expresa de! con· Bernardino C. Almeda for the defendant and appellee. DECISION ~~;~ d~~ ~~;i~o ~i;~u::!~gul:48 T:~p;c:di:;ar~~:ilq;;:~o d:m:~~~~!: BF.NGZON, .T.' .haya obrado a sabiendas que su acci6n contra el demandado era The fiscal of Surigao has appealed from the order of the court infundada, pues no existe pronunciamiento en ta! sentido. Si el c:f that province dismissing the information charging lrrnea Alidemandante incluy6 al demandado era para proteger sus derechos: pao with oral defamation. no hacia otra cosa mas que ejercitar un derecho que le confiere la ley y no para perjudicar o molestar al demandado apclantc. Si e1 demandante no hubiera incluido al hoy apelante como uno de los demandados, y se hubiera dictado sentencia contra aquel, en una reclamaci6n postt:rior sobre saneamit:nto, el dcmandado podria presentar la defensa de que no se le di6 oportunidad de probar su justo titulo al tiempo de la venta y que Victoriano Mendoza habia registrado indebidamente dichas parcelas. Si Pedro L. Mendoza hubiera sido demandado por Justina Caparros e hijas, pidiendo la posesi6n de las parcelas de terreno, ar· madas con el certificado de transferencia de titulo No. 10,530, qu& hubiera hecho el demandado? Pedir la inclusi6n de Paulino Pelejo como uno de los demandados para que, en caso de evicci6n, le pagasc dafios Y perjuicios. Si no pidiese la inclusi6n de Paulino Pelejo, Pedro L. Mendoza perderia su acci6n por saneamiento, pues el articulo 1558 del C6digo Civil nuevo dispone que "The vendor shall not be obliged to make good the proper warranty, unless he is summoned in th,e suit for eviction at the instance of the vendee." y el articulo 1481 de! C6digo Civil antiguo dice que "El vendedor estar3. obligado al saneamiento que C:Ol'l'esponda, siempre que resulte probado que se le notific6 la demanda de evicci6n a instancia de! comprador. Faltando la notificaci6n, el vendedor no estara obligado. al saneamiento." Y en sentencia de 11 de febrero de 1908, el Tribunal Supremo de Espafia dijo: "Hecha la citac:l6n de evicci6n, Y habiendo intervenido en le pleito el vendedor, tiene el compn1dor expedito su derecho para ejercitar la acci6n de saneamiento, sin que obste no haberse hecho declaraci6n en la sentencia." Paulino Pelejo, como vendedor, estaba en la obligaci6n de prubar que habia vendido con justo titulo las parcelas de terreno: si P.aulino Pelejo no habia comprado de veras dichas parcelas de .\ga· p1to Ferreras, este tenia perfecto derecho de registrarlas a .rn nombre. El titulo de! comprador Victoriano Mendoza, de qulen hered6 el demandante Pedro Mendoza estas parcelas, dependia de! tituk1 que tenia Paulino Pelejo sobre las mismas al tiempo de la venta. No carecia de fundamento legal, por tanto, la demanda al incluit• a Paulino Pelejo como uno de los demandados. Su inclusi6n er:i. un aviso de que, en caso de evicci6n, e1 - como vendedor - tenia que responder de! saneamiento. Se confirma la orden apelada, The matter orginated from the justice of the peace court, wherein a fine had been imposed. The defendant appealed. The corres· pending information was filled in the higher court, later substituted by an amended information. When in the morning of July 2, 1952, the case waa called for hearing, the prosecution moved for postponement, the complaining witness being absent because there was a typhoon on that day. The court adverting to the presence of the accused and her witness· t'S and the right of defe:ndants to speedy trial, denied the postponement, and dismissed the proceeding. A motion to reconsider failed. H.:!nc~ this appeal, which may be entertainr.d, because, at least it doC's Mt appear that the accused had pleaded to the infor· mation. The order of dismissal reads as follows: "The Pro\'incial Fiscal moves for the postponement of the trial of this case on the ground that his witnesses have failed to ~ome because there is now &. typhoon. The defense objects w the motion for postponement cm the ground that the accused and her witnesses are from the same place as the ccmplaining witness and other witnesse& for the prosecution; but mspite of this fact !;'aid accused and said witnesses have come and there is no reason wh)' the witnesses for the prosecution should not have come. The accust:d is entitll!d to a speedy trial. She has come with lier witnesses inspite of the inclement weather. There is no reason why the trial of this case should be postponed. WHEREFORE, this case is hereby dismissed with costs de oficio and the bail bond of the accused, released," There is no question that postponements. are discretiona1·y with the court. However, as the fiscal alleged in his motion to reconsider, in the afterncon of July 1, 1952 the J.ocal station of the Weather Bureau issued a warning to the public of a storm npproaching Surigao, with strong winds expected the following day; the next day at 8 a.m. another typhoon warning was published, announcing that Surigao would be lashed by the tytJhoon between eleven and 2 at noon :'to-day"; there were strong winds :md heavy rains that blew down some houses; · and becau&e of ~he weather the complainant and her two witnesses, who resided in barrio Rizal and had small children, could not appear in court. 596 THE LA WYERS JOURNAL Decembe1· 81, 1954 Under the circumstances, we believe the continuance should have been granted considering it was for the first time asked by the Government, The court's concern for the defendant's rip,-ht t.o speedy trial is commendable; but it should not be carried to the extreme of practically denying the }lrosecution its day in court for causes beyond its control. That the accused had come from the same place where the complainant lived, is not conclusive>, The judge was advised that wherens the accused had no children, the complainant had several small boys to take care of. And the condition of their respective dwl'!llings--in relation to the stormy weather-does not appC'ar. The presence of complo.inant's hmband-pointed out by JefenF.eis no reason to say that she could have come if she wanted. A man may be willing to face e.onscquences which it is unfair to require a woman to face. That the judge and the court personnel were in court, may be due eithi::r to their high degree of S'!D.'2<' of duty or to the sturdiness of the Government buildings. A mother out in the barrio, will hesitate to go to town five kilometers distsnt, knowing the probability· of being overtaken by the storm, and of finding no means of tram=portation. Wherefore, the t)rder of dismissal will be revni;ed, and the record will be remanr?ed !or further proceedings. So . Jrdere•l. Para11, C.J., Pablo, Padilla, Montemayor, Alez. Rc11cs, J11go, B:iutista Angelo, Concepcion, and J .B .L. Reves, J.J, .:oncur. v Andres Achondoa, Plaintiff-Appellant, vs. Marcelo Rotea, Joaquina Rotea, Beatriz Rotea and Pastora Rofea, Defendants-Appel· It.es, G. R. No. L-5340, August 31, 1954, Padilla, J. OBLIGATIONS AND CONTRACTS; SALES; SALE MADE IN GOOD FAITH AND EVIDENCED BY A PUBLIC DOCU· MENT CAN BE RESCINDED ONLY ON GROUNDS PROVIDED FOR BY LAW. - Where the transfer and assignment by the .defendants to their brother of a sugar cane mill was ineffective and invalid because of the objection of their father who was co-owner thereof, the subsequent sale by the defendants to the plaintiff of the same mill in good faith and at the latter's insistent requests and evidenced by a document acknowledged before a notary public cannot be rescinded except on grounds provided for by Jaw. Francisco Capistrano, Jr. for plaintiff and appellant. Felix Mercades, Briones & Pascual for defendants and appellees. DECISION PADILLA, J.: On 20 March 1933 Joaquina, Beatriz and Pastora surnamed Rotea, the last two r~presented by their attorney-in-fact Marcelo Rotea, for and in consideration of Pl,800, conveyed and sold to Andres Achondoa a steam sugar cane mill, 12 H.P., manufactured by A. & W. Smith & Company, Ltd., Glasgow, together with its boiler, 14 H.P., a carriage and caldrons, the sale being evidenced by an ir.strument acknowledged before notary public Jose M. Romno (Exhibit M). But prior to that sale or on 18 February Hl32, Marcelo Rotea, in his behalf and in behalf of Joaquin'l, Pastora and Beatriz, transferred and assigned to his brother Jost'i Rotea the same steam sugar cane mill found in the Hacienda San Rafael in the municipality of Tanjay, Oriental Negros (Exhibit 0). Andres Achondoa sent. Manuel Bastida, a mechanic, to the Hacienda San Rafael to take possession of the mill and in fact dismounted it partly, took and .si;>nt somP parts thereof to the land of Achondoa in the barrio of Tipanoy, municipality of Iligan, province of Lanao. While Manuel Bastida was thus er.gaged in dismounting th<! mill, Laureano Flores, to whom Jose Rotea allegedly had sold the ste:un sugar cane mill, brought an action in the Court of First Instanre 'lf Oriental Negros to be declared owner of the steam sugar cam• mill, to enjoin Achondoa and his mechanic Bastida from dismounting, removing and transporting the sa:d steam sugar cane mill or parts thereof, to enjoin perpetually the defendants from molesting him in the enjoyment of the possession of said steam sugar cant• mill, and to recover damages and costs (Civil Case No. 826, Court of First Instance of Oriental Negros; Exhibit A). After hearing the Court of First Instance of Oriental Negros rendered judgment declaring Laureano Flores owner of the steam sugar cane mill and all its accessories, making final the writ of preliminary injunction issued against Achondoa and Bastida, their agents and representatives, and ordering them ti;i pay the costs. On appeal the Coul't of Appeals reversed the judgment of the trial court and held that Andres Achondoa was the lawful owner of the mill because as ven· dee he was the first to take possession thereof. As to the counterclaim for damages in the sum of P32,000, the Court of Appeals held that the amount of damages allegedly suffered by Andres Achondoa was of speculative character, because he was found to have been planting sugar cane in the tract of land where the mill was to be installed and used since Hl31, or long before he bought the sugar mill in litigation. The judgment of the appellate court reserved to Laureano Flores whatever l'ight he may have against Jose Rotea (Exhibit B). The judgment of the Court of Appeals just referred to was promulgated on 29 December 1939. But on 29 June 1939, or before the appr.al was decided by the Court of Appeals, Andres Achondoa commenced this action against Marcelo, Joaquina, Beatriz and Pas'tora surnamed Rotea in the Court of First Instance of Occidental Misamis to rescind the contract entered into on 20 March 1933 by and between him and the Roteas (Exhibit N), , nnd to recover from the defendants the sum of Pl,800, the purchase price paid by him for the steam sugar cane mill, together with lawful interest thereon from that day, the further sum of P51,000 as damages and costs. After summons the defendants filed a general denial answer to forestall their being declared in default. On 11 December 1940, the date set for the hearing of the case, the attorney for the defendants sent a telegram to the court praying for the continuance of the hearing as he was busy then appearing in a case in the Manila court, but the motion was denied and the plaintiff allowed to present his evidence in the absence of the df'fendants and their attorney. On 22 March 1941, the Court of First Instance of Occidental Misamis rendered judgment rescinding the ' contract of purchase and sale of the sugar cane mill executed by and between the plaintiff and the defendants and ordering the latter to pay back to the former th<! sum of Pl,800, the purchase price of the mill, together with lawful interest from 20 March 1933, the further sum of P75,223.25 as damages and costs. A motion to set aside the judgment and for a new trial was denied. The defendants appealed. Briefs were filed but before judgment eould be rendered the Pacific War broke out and the record was destroyed during the battle for liberation of the City of Manila. Steps were taken to have the record reconstituted and on 13 November 1947 this Court adopted the following resolution: In Reconstitution Case G.R. No. L-1256, Achondoa vs. Rotea et als., the Court ordered that a new trial be held in the Court of First Instance of Occidental Misamis for the purposl'! of receiving evidence not yet of record. On 16 October 1948, the defendants filed an amended answer al· lcging that after the contract was executed and receipt of the purchase price, they made delivery of the steam sugar mill to the plaintiff, by placing him in material possession thereof, so much so that many of its parts were already sent to Iligan by the plaintiff; that if the whole mill was not fully dismounted and sent to its destination, it was due to causes beyond the control and will of the defendants and without any fault on their part, because Laureano Flores instituted the action already referred to against Andres Achondoa ct al.; that in said case the Court of Appeals declared Andres Achondoa the lawful owner of the steam sugar cane mill beca use he took possession thereof and that the question of da· mages allegedly suffered by Andres Achondoa was threshed out, passed upon and decided by the Court of Appeals in the case referred to between Laureano Flores, on the one hand, and Andres Achondoa and Manuel Bastida, on the other. By way of special defc:1se, Marcelo Rotea in his own behalf and as judicial adminis· December 31, 1954 THE LA WYERS JOURNAL 697 trator of his co-defendants, the late J oaquina, Beatriz and Pastora surnamed Rotea, alleged that they had acted in good faith in entering into the contract of purchase and sale of the mill; that they did not know the purpose for which the plaintiff acquired the mill; that if they did finally consent to sell it to him it was due to the latter's request and insistence; that they were not aware of the alleged sale of the mill by their brother Jose Rotea to Laureano Flores; that a few days after Marcelo Rotea had assigned and transferred the mill is question to his brother Jose, which transfer was subject to t.he general approval of their father, JosC Rotea was notified by telegram by his father objecting to the assignment and transfer of the mill to him; that until the time the action was instituted by Laureano Flores and injunction issued by the Com·t of First Instance of Oriental Negros, the defendants did not know nor were they awa1·e that there had been such cession or assignment of the mill to Laureano Flores as there had been no prior valid assignment thereof to Jose Rotea, the predecessor or vendor of Laureano Flores; that the validity of the sale made by the def~nd ants to t.he plaintiff has already been passed upon and decided by the Court of Appeals and is now res jitdicatu; that after the institution of the action by Laureano Flores against the herein plaintiff Achondoa, as evidence of their good faith the defendants en· gaged the services of an attorney to defend the herein plaintiff, then defendant, paid for the att01·ney's fees, presented witnesses to the court, secured and furnished the attorney with documentary Not only did thP vendors place the vendee in possession of the mill but also when his possession was disturbed by the filing of an action in which a Wl'it of preliminary injunction was issued against him (the vendee), they (the vendors) engaged and paid for the services of an attorneY to defend the sale made by them to him and furnished the attorney with witnesses and documentary evidence necessary for his defense and when the case was decided adversely against the vendce they with the latter's consent caused the case to be appealed to the Court of .Appeals and seeured a reve1·sal of the judgment. In the case appealed to the Court of Appeals, the vendee, then defendant-appellant, set up a cou!lterclaim for !1'32,000 for his failure to make use of the milt because of the injunction issued !.ly the Court of Fii·st Instance of Oriental N~gros. Passing upon that point cf damage for P32,000 allegedly suffered by t.hc then defendant-appellant, the Court of Appeals held that said damages were of speculative character and dismissed the counterclaim. It appearing that in 1933 the plaintiff-appellant planted his land in Iligan with sugar cane not in anticipation or expectation that he would acquire the mill from the defendants, because in 1981, 01· two years before, he hac\. planted it with sugar cane, the claim for damages of Andres Achondoa is without basis in law and in fact: evidence, and paid the expenses incurred in connection with the The judgment appealed from is affirmed, with costs against ippeal to the Court of Appeals after an adverse judgment had been the appellant. :::sde:eC:er~:d ~~ ;ho:r~o~~·t ~;·s!;;:!~;;c~h:~ ~:~:!:~ ~1~!~:,;v~~cf~ Paras, C.J., Pablo, Bengzon, Montemaycn-, A. Reyes, Jugo, Bautista fered by the plaintiff, if any, could not be laid upon the defend- Angelo, Labrudor, Co11cepcfon and J. B. L. Reye.~, J.J., concur. ants; that it is nOt true that the plaintiff planted sugar cane in his land in Iligan in 1933 only when he acquired by purchase the mill, · VI because the plaintiff had planted sugar cane in the land since 1931. Maximo Omamlmn, Applicant-Appellee, vs. The Director of The admission of this amended answer was objected to by the plain- Lands, Oppositor-Appellant, G.R. No. L-4301, July 29, 1954, Padilla; J. tiff. After hearing at which the defendants presented their evi, dence, the record was forwarded to this Court for final disposition, 1 · but ·.on 6 March 1950 the record was returned to the trial coul't LAND REGISTRATION; OPPOSITION; FAILURE TO FILE OPPOSITION WITHIN THE PERIOD GRANTED OR WITH· IN REASONABLE TIME THEREAFTER IS ABANDONpursuant to the following resolutio!l; 1u reconstitution case L-1256, Andres Achondoa vs. Marcelo Rotca, et al., in which a new trial was held in the Court of First Instance of Misamis Occidental for the reception of <:!Vidence not yet of record, the Court orde!'ed that said case be returned to said Court of First Instance for new decision as in a new trial. Conformably thereto, the Court of First Instance of Occidental Misamis rendered judgment dismissing the cl!mplaint, with costs against the plaintiff. A motion for new trial was denied. Hence this appeal. The evidence shows that the sale by the defendants to the plaintiff of the mill in question was made in good faith and at the latter's insistent i·equests and that the transfel' or assignment of the mill to Jose Rotea was ineffective and invalid because of the objection of their father Luis Rotea who was a co-owner of the mill. Not only did Luis Rotca express his objection to the assignment of the mill to his son Jose Rotea in a telegram sent from Manila to Emeteria Gonzales on 22 February 1932 (Exhibit I), but also in his letter to his children dated 25 February 1932 (Exhibit K). Granting that Laureano Flores did not know of such objection, still the iact remains that as the assignment by way of donation to Jose Rotea, the predecessor and vendor of Laureano Flores, was made in a private instrument it could not prevail over the sale of the mill made in a public document to Andres Achondoa who took possession thereof. A consummated sale cannot be resolved but only upon certain grounds provided for by law. If he failed to dismount completely and ship the whole mill to his land in barrio Tipanoy, municipality of Iligan, province of Lanao, it was not due to any fault imputable to the defendants, for as vendors in good faith of the mill sold they did all what was expected of them. MENT. - Although the Director of Lands, as oppositor to an application for registration, was not d-:!clared in default because his reriresenb.tive nppea1·ed on the date and time set for th•~ hearing and was granted fifteen days within which to file his opposition, yet the fact that he did not file it within the period granted or within a reasonablC' time thereafter constituted aba;idonment of his opposition, the reservation to the effect that th£> nonpresentation of an opposition was "without prejudice to the right of this Bureau to take proper steps should it find upon proper investigation that the applicant is not entitled to the land soug'hl to be registered," notwithstanding. Z. PLEADING AND PRACTICE; MOTION FOR RELIEF, WHEN SUFFICIENT IN FORM AND SUBSTANCE. - A motion for relief, although verified by the movant, yet if, a!Jart from failing to show excusable neglect, it was not ac· companied by an affidavit of merits, is not sufficient in form and substance to justify the Court to require those against whom it is filed to answer w:thin fifteen days from the receipt t hereof, as provided for in section 4, Rule 38 of the Rules of Court. First Solicitor General Ruperto Kapitnan, Jr., and Solicitors Pacifico P. de Castro and Mariano M. Trinidad for appellant, I>irector of Larids. Alf{)Jiso L, Penaco for the applicant and appellee. DECISION I'ADILLA, J.: Maximo Omandam applied ior registratiOn, under the Land Hcgistration Act, of a parcel of agricultural land, together with the improvement'3 thereon, containir,g an area of 177,813 sq.m . or &08 THE LAWYERS JOURNAL December 31, 1954 17. 7813 hectares, located in the barrio of Casul, municipality of Baliangao. province of Occidental Misamis, delimited and described in the plan and technical de&criplion attached to the application, &ubject to a mortgage. in favor of the Philippine National Bank for the sum of P600. Notice of hearing was issued on 1 September 1949, duly published and servt!d upon all interested parties setting the hearing of the applicati.on for 28 December 1949 at 8:00 a.m. On that day the tepresentatives of the Bureau of I.ands and C>f the Philippine National Rank and other opponents appeared. 1'he representatives of the Bureau of Lands and of the Philippine National Bank were granted fifteen days within which to file a written opposition to the npplicaticn. Except as to those who had madP their appearance a gene1·nl default was enterP<l. On 2 May 1950 after hearing the Court renclPred judgment for the appliMnt clecreeing- the registration of the ,arceJ of land in his name, subject to a mortgage to securn the paymE-nt to the Philippine National Bank of P600. The opponents Pedro Omandam and Evencia Omandam who appeared and cross-examined the witnesses withdrew t11cir llpposition to the application. On 6 June 1950 an opposition was filed by the Director of I.am;Is .and ten days later <16 Ju~e), a motion for reconsideration was filed by him predicated upon nf-wly discovercid evidence and lack of notice of the hearing held on 2 Ma:v 1950. This was denied by the Court in its order of 8 July 1!150. On 15 August, the provincisJ fiscal in behalf of the Director of Lands filed a motion for relief from judgment on the ground of excusable neglect. He alle~d that the faulty means of communication from Occidental Mjsamis to Manila was the cause of the Government's failure tll file itfl oppo11ition to the application , This was denied by the Court on 9 September 1950, frnm which c,rder denying the relief prayed fer the Director of Lands is apPf'aling. AppeUant points to th£ lack of hearinJ! on the petition for relief, as provided fllr in sections 4 and 6, Rule SS. According to the rule the Court is to require "those against whom the petition is filed to answer the same within fifteen days from the receipt thereof'' "if the petition is sufficient in form and substance to justify such process." Granting that the means of communicatiOn between Occidental Misamis and Manila was faulty as alleged by the apJ)t!llant. still fhere iR no justification for the delay in fi~ing Ms opooflition t.o the application. It was filed on 6 June 19'i0. And although he was not in default because his representative appt:ared on the date and time set for the hearing and was granted fifteen dan witMn which to file his opposition to the a1,pJicat!on, yet the fact that he did not file it within the period granted or within a reasonable time thereafter led the Court to believe that h<? abandoned his onposition to the applicatfon. More, as early as fi June 1949 thE' Solicitor General returned the record of the case to thP, Court with the statement that the Director of Lands did Mt d~m it. n~essary to fi)p an opoosition to the registration applied for by Maximo Omandam. This statement must have b<>en made upon report on investi_!?ation done by the field llfficPrs of the Bu!'eau of Lands. The resel""\·ation made by the Director of Lnnds in the indorsement to the Soiicitor General that the n'"lnpesentation of an opnosition was ''without pnjudice tn t.he l'lght of thi!I Bureau tn takP proper stP.ps should It find upon p;ooner investfo·ation that the applicant is 'not entitled to the land soue:ht to be re.e;istered" dt>es not justify the delay of the aprellant, in filing his opposition. The motion for relief. apart from fai!ingtt"J show excusable neglect, does not havt> an .iffidavit of merits. for althoue:h it is verified by thf' J>rnvlncial fiscqJ and the affidavit .;ittacheO thereto sworn to also by thP provincial fiscal, the latter does not know the facts upnn which the opposition is based, to wit: that the a"!)plicant has 110t been in possession )f the pal'Cel of 1and '!.pplicd for since 21) July 1894. Hence, being an insufficient u~ti t.ion not only in form but also in substance to justify the Court to require th::ise against whom it ii; filed to answer within fifteen days fro:n the receipt thereof, as provided for in section 4, Rule 38, the hearing provided for in section 6 of the rule was not availtJ.ble to the party seeking the relief. The order appealed from ia affirmed, Without costs . Paras, C.J., Pablo, Beng::on, ftfontemayor, Ak:i:. Reyes, Jugo, Bau. ti::ta A11gelo, Labrador, Concepcion, and J.B.L. Reyes, J.J., c.oncur VII Jose M. Lezama, Puttioner, vs. Eclmundo PiceW, at al., Re~-ponden.ts, G. R. No. L-6606, Sepcember 29, 1954, Montemt11yor, J. PLEADING AND PRACTICE; DELAY IN THE SERVrnE OF SUMMONS ENTITLES DEFENDANT TO LIFT ORDER OF DEFAULT. - Although this court has held that the filing by the defendant of a motion praying for the dissolution of an attachment without impugning the jurisdiction of the trial court and the subsequent giving of a counterbo?Jd for its c!issolution could be regarded as a voluntary anpearance, equivalent to <:1ervice of sunimons and the1·efore he could bo properly declared in default <Flores vs. Zm·bitci, 37 Phil., 746, 750; Monteverde vs. Jar~nilla, 60 Phil., 306; and Marquez Lim Cay vs. Del Rosario, 55 Phil., 962), this rule may no': be invoked in the present cr.i;e wl1ere the dt>fendant, in petitiOf!ing the trial judge by means of a telegram to fix the amount of a counterbond to dissolve the writ of a!tachment, had also &!'ked that the clerk of c.ourt !!end him a copy of the complaint by air mail in order to be appri:sed of the court action against him and put up hi1> defense, but ~aid copy appare!l-::ly was ·never sent him ; and the summons was only served on him two months after the order of default had been rt-ndered against him. Tirso E:speleta for the petitioner. Gaudioso C. Villagonzalo for tht:! respondents DECISION MONTEMAYOR, J.: From the record we gather the following facts. Perf1::cto Guillen and eleven others were employed by petitioner Jose M, Lezama in his fishing business. C!aiming that they had not b.?t!n paid their wages to May 28, 1952, they filed Civil Case No. Rl!J16 in the Cocrt of First Instance of Cebo to collect said pay, and fnr other relief. At that time Lezama would appear to be residing in the City of Iloilo, alth<Ugh his Manag1::r Juan B. Cesar lived in the City of Cebu. Because Cesar could not be found in Cebu at the time that the complaint was filed the wrresponding summons together with a copy <>f the c.omplaint were sent to th~ Provincial Sheriff of lloilo fnr service on Lezama and wel'e receh·ed by said Sheriff on May 31, 1952. On petition of plaintiffs Guillen et al., a writ of attachment was issued against the fishing boat MIL CATALINA belonging to Lezama. Manager Cesar then alrea<ly in Cebu was notified of this writ of at.tachment and he must have notified his employer Lezama because the latter for the purpose of Jifting the writ, from Doilo on June 5, 1952, sent a telegram to Judge Piecio who was hearing the case asking him to telegraph to him collect if he was agreeable to bis filing ot a !"5,000.00 counterhond and also asking that the Clerk of Court send ~o him a copy of the complaint via r.irmail <Appendbc A). Judge Piccio ansv;ered by telegram on the same date to the effect. that a P5,000.00 counterbond would be approved. On June 13, 1952, Lezama filed the c.orresponding counterbond in the amount oi P5,000.00 whkh was approved by the Judge. On October 11, 19fi2, Judge Piccio issued the following order: "'Defendant not having filed his Answer to the Compluint within the statutory period, as prayed for, this Court hereby declares the defendant in default. "Plaintiff may, therefore, introduce their evidence at any cnnvenient date. "SO ORDERED." It would seem hvwever that the Provincial Sheriff of Iloilo had not in :he meantime served the summons and the copy of the complaint 01; Lezama in lloilo, despite the fact that he CSheriff) received said summons as early as May 81, 1952. On Novetr.ber December Sl, 1954 THE LAWYERS JOURNAL fi9:J 28, 1952, the Cebu Clerk of Court wired said Sheriff requesting him to inform the court of the date a copy of the complaint in Civil Case No. R-1916 was served on the defendant. No answer was received. On December 8, 1952, Judge Piccio himself telegraphed the Iloilo Provincial Sheriff to answer by teleg:•am col1-?ct and inform him if he had sumrrwned defendant in said case. Still, no ans\ver. But two clays after, this is, on December 10th, said Sheriff served the summons on Lezama. On December 22, 1952, Judge Piccio rendered judgment in favor of Guillen and his eleven co-plaintiffs in Civil Case No. R-1916 and against defendant Lezama. On December 23, 1952, Lezama filed a motion for reconsideratiori asking that the order of default hr reconsiderect, nnd th&t he be allowed to answer the complaint, at the rnme time enclosing a copy of his answer alleging that it was only on December 10, 1952, that he received the summons and a copy of the complaint. According to respondents, Guillen et al., this motion was denied by the court on January 3, Hl53; and the answer attached to the motion was dismissed on the same date, Then, in an undated petition for relief but ·bearing the month of January and the year 1953, defendant Lezama claiming that he had a "goud and strong evidence to counteract plaintiffs' claim, if the former is given a chance to be heard," asked that the judgment rendered against him be set aside and that a new trial be ordered, at the same time conterlding that his filing of a counterbond to dissolve the writ of attachment did not constitute a voluntary appearance nor did it confer upon the court jurisdiction over his person because he was not regularly served with sommons. According to Lezama thii:: petition for relief was never acted Uplln by the court, and according to respondents, a copy of said petitjon for relief was never served on them or upon their attorney, Lezama has now come to this 'Tribunal with a petition for certiorari, prohibition and mandamus, asking that the decision of Judge Piccio as well as the proceedings had in his court be declared null and void, and tl1at the case be remanded to that court for frial on the merits. One question involved in the present case is whether the action taken by Lezama in asking the trial court by means of a teleg!°!\m to fix the amount of a countcrbond to dissolve the writ of attachment and his subsequent filing of the counterbond fixed by the court constituted a voluntary appearance which according to Rule 7, Section 23 of the Rules of Court is equivalent to service of summons. If it is, t.hen the fiftee:n C15) day period provided by Rule 9, Section 1, of the Rules of Court within which a defendant shall file his ar1swer !Ohould be computed not from December 10, 1952, when Lezama was actually and formally served with summons by the lloilo Sheriff but f.rom June 5, 1952, when sent the telegram to Judge Piccio or at the latest from June 13, 1952, when he filed his counterbond. And if this be the case. th~n Lezama was properly and correctly cleclared in default for his failure to file an answer on time·. In the case of Flores v. Zurbito, 37 Phil. 746, 750, this Court said the following: " x x x. Wl1ile the formal method of entering an appearance in a cause pending in the courts is to deliv('r to ~.he clerk a written direction ordering him to enter the appearance of the person who subscribes it, an appearance may be made by simply filing a formal motion, or plea or answer. This formal method of appearnnce i~ not necessary. He may appear without such formal appearance and thus submit himself to the jurisdiction of the court. He may appear by presenting a motion, for t'xamplc, and unless by such appearance he specifically objects to the jurisdiction of the court, he thereby gives his assent to the jurisdictir:m of the court over his person." In the case of Monteverde v. Jaranilla, 60 Phil. 306, this Court And in the case of ?i-larquez Lim Cay v. Del Rosario, 55 Phil. 962, this Court also ht>ld that "the filing of a motion praying for the dissolution of an attachment without objecting to the jurisdiction of the court over the placl! where the property is situated, by means of a special appearance;" and "the giving of a bond for the dissolution ot said attachment, imply a submission to the jurisdiction of the court x x x," On the strength of the authorities above cited we could hold that petitioner Le2ama was properly declared in default because he should have filed his an'swer within fifteen days, not from December 10, 1952, when he was actually served with summons in Iloilo, but from June 5, 1952, ·:>r at the latest, from June 13 1952. when he filed with the Cebu cou1t the corresponding eountcrbond in the amount fixed by said court at his request and inJ.ilance, all of which cculd be regarded as a voluntary appearance, equivalent to service of summons, an appearance in which the jurisdiction cf the trial court was not impugne:d. But there is one aspect of the case, by no means unim!)ortant, which must be considered, namely, the delay in the service of summons on Lezama. The Iloilo Sheriff served t11c summons on him only on December 10, that is, about tivo months after the order of default. It will be remembered that in Le2ama's telegram to Judge Piccio on June 5, he asked that the Cebu Clerk of Court send him a copy of the complaint by air mail. That shows that Lezama was anxious to &ec a copy of the complaint, apprise himself of the court action &gainst him and put up a defense. But apparently, said copy of the complaint was never sent to him. Besides, according to him, and judging from a C'f.'JlY of his answer, he hacl a good defense, 11rovided of course that he can prnve his ailegations in it. We believe and hold that under the circumstances, Lezama should be given his day in comt. In view of the foregoing, the petition is granted, the order of default and the clecision are hereby set aside, and lhe trial court is directed to reopen the case, aclmit Lezama's answer and hear and decide the case anew. No costs. We cannot overlook the long d"'lay in the service of the summons by the Provincial Sheriff of Iloilo. Said Sheriff received ~aid summons from Cebu on May 31, 1952. On November 28, 1952, the Cebu Clerk of Court wired him asking for informat!on about the date the summons wll.!' served on the defendant in said Civil Case No. R-1916. The Sheriff apparently did not deign to n.nswer the telegram. On December 8, 1952, Judge Piccio himself telegraphed said Sheriff of IToib nsking if he had already served summons on the defendant. The Sheriff again failed b answer; but apparently spurred by said two telegrams and realizing the necessity of some action, on December 10, 1952, he actually served the summons on thf' defendant. According to the answer of respondents, said sheriff actually cashed the mouey order covering his fees as sheriff, as early as June 1952, meaning that he collected his fees long before he rendered .!'ervices on December 10, 1952 when he served the summons. The attention of the Department of Justice and the Presiding Judge of the court of Iloilo are invited to this incident for pur1>oses of investigation if they deem necessary, so that a similar case of long, unexplained, and <..bnoxious delay in the scrdce ·of, summons will not be repeated. Paras, C.J., Bengzon, Alex. Reyes, Jugo, Bantista Angelo; Concep~ cion, and J.B.L. Reyls JJ., concur. Mr. Justice Labrador did not take part. Pablo, J.; took no rart. VIII Good Day Trading Corporation, Petitioner, vs. Board of Tax Appeals, Respondent, G. R. No. ,f:,-6574, July '31, 1954, Montemayor, J. said that a special appearance in which the jurisdiction of the court over the person of the dE>fendant is not expressly impugned 1. and in which the dissolution of an attachment is asked upon the filfog of a counterbond, is equivalent to a general appearance. BOARD OF TAX APPEALS DECLARED ILLEGALLY ESTABLISHED; REPUBLIC ACT 1125 CREATED THE COURT OF TAX APPEALS WITH ·SAME JURISDICTION AND 606 THE LA WYERS JOURNAL December 31, 1954 FUNCTIONS AS BOARD OF TAX APPEALS; ALL CASES DECIDED BY FORMER BOARD AND APPEALED TO THE SUPREME COURT SHALL BE DECIDED ON THE MERITS. - Presumably due to a ruling by this Tribunal <University of Santo Tomas vs. Board of Tax Appesls, G. R. No. lr5701, June 23, 1953) that the Board of Tax Appeals was illegally established <because by mere Ellecutive Order> for the reason that the jurisdiction assigned to it deprived the Courts of First lniJtance of their jurisdiction to entertain and pass upon cases taken to them from actions and decisions of the Otllector of Customs and the Collector of Internal Revenue regarding taxes, assessments, refunds, etc., Republic Act 1125 was subsequ@ntly passed. Said Act .cbolished thP. Board of Tax Appeals, created what is now known as the Court of Tax Appeals with practkAlJy the same jurisdiction and !unctions of the former Board of Tax Appeals, and although it repealed Executive Order No. '401-A, nevertheless it provided that all caiies decided by the former Board of Tax Appeals and appealed to the SuprcmP Court pursuant to Executive Order No. 401-A shall be deciied by the Supreme Court on ~e merits, to all intents and pm·poses as if sa.id Executive Order No. 401-A had been duly enacted by Congress. 2. TAXES; SPECIFIC TAXES ON IMPORTED ARTICLES; EITHER OWNER OR IMPORTER SHALL PAY. - If a shipment stored. pursuant tt'I exiiiting law, in a bonded ware-. house under the custody of the Bureau of Customs is so1d, while in storage to another person, the epecific taxes on. the shipment may be paid either by the importer or the buyPr, as owner under section 125 of the National Internal Revenue Code. ~- COURT OF TAX APPEALS; JURISDICTION; REVIEW AND APPROVAL OF ORJGINAl. ASSESSMENT MADE 'BY TRE COLLECTOR OF INTERN AL REVENUE: ONLY ISSUF.S SUBMITTED CAN BE REVIEWED BY THE TAX COUP.T. -Where no appeal was taken from the decision of the Col· 1eetor of Internal Revenue, as approved by the Secretary . of Finant'e, authorizinJ? the refund of specific taxes paid by the importer. in vifw ::if its fu!J payment by thP buyers of the stored shipmt!nt, and becaulk' thP amount involved exceeded P5,000 the approval of the Court of Tax Appeals undr:r section 9 of Executive Order No. 401-A becomes necessary, the lattpr court should consider only the amount ancl propriety of the refund and nothing more. 4. ID.; ID.; WHETHER OR NOT BACKPAY CERTJlo'ICATES CAN BE USED FOR THE PAYMENT OF TAXES JS NOT FOR THE TAX COURT TO DETERMINE. - Whether or not owners of backpay certificates should be given CP.rtific'.!.tes of indebtedness ostensibly to be used to pay taxes but in reality to be speculated upon and negotiated by some unscrupulous person, is not for the Court of Tax Appeals to determine, out is wholly the legal, concern of the Treasurer of the Philippines and the- Department to be affected by the use of said cert!ficatP of indebtedneH. Enrico I. de la Cntz for thP petitioner. Solkitor Genernl Juan R. Liwag and Solicit<>r JosfA P . Alejandro for the respondent. DECISION MONTEMAYOR, J.: The facts In this case are not disputed, The petitioner GOOD DAY TRADING CORPORATION imported 238 cases of Chester!if·ld cigarettes on February 18, 1952. The corresponding sur<:ty bond was filed in its favor to .st.cure the payment of thr sum of f'f.2,360.00, the amount of specifir. taxes dut on the cigaret"::e importation, and pursuant t" existing Jaw, th~ shipment was stored ii. a bonded warehous~ under the ~ustody of the Bureau of Custi.Jms. On Se.piember 23, 1952, while the cigarettes were still in .e;torage, petitioner solrl them to .. me Buen:iventura IslPta for a tota1 sum of P32,000.00, exclusive nf specific taxes, the sale being conditioned on the buyer paying all the specific taxes or filing a surety bond with the Bureau of Jnternal Revenue to guarantee payment thereof, withi·n 15 days from the sale agreement, besi.!es paying all the stongE: fees, fire insur9.nce premium and other expenses from the date of sale until t-he cigarettes have been withd~awn by the buyer. A few days after the sale agreement Islets informed petitivn<,r that he bought the cigarettes J\Ot for himself but on behalf of }.is companions who int.cnde~ to pay the specific taxes with their backpgy certificates or certificates· of indebtedness. Petitioner then wrote a letter to the Collector of Internal Revenue advising him of the sale, at the same time requesting !hat sh!\uld the certificates of indebtedness with which the buyers intend to pay tlw specific taxes on the cigarettes be approved and accepted, the ~urcty bond previously filed by petitioner be ordered cancelbd. 1'his Jetter was duly received by the Collector of Internal Revenue. Aftenvards, when despite several exteni:ions given to fa]Pta and his t'ompanions they fail'i!d to show evidence that they had <:ither paid the specific taxes or filtid the correspnnding su -~ bond, petitioner to av,nd deterioralion of the cigarettes, decided to rescind the sale and on Deeemb~'r 8, 19!12. on account :,f the !-pecific taxes, it made an initial 9ayment of PS,800.00 to the Collect<lr of Internal Revcnuf! and thereafter attempted to withdraw from storage 40 cases of cigarettes, covered by the initial payment. Tb~ warehouseman, however, refused dt>livery saying that Isleta nnd companions daimed ownershi~ of the whole Fhipment be:a.Jse ' they already harl submitted with the Bureau of Internal Reve:-:ue certificates of indebtedness <Back Pay) for payment of all the !!pet'ific taxes, which according to them have already been approved and accepted by the Dureau. At the same time Isleta came to petitioner's office with a Jetter requesting the suspension of the wi~h clrawat of the cigarettes by petitioner, with the condition that should he llsleta and companions> fail to comply with the s&le n1?recmcnt on or bcfc;re December 15, 1952, then petitioner may withdraw the whole shipment and ls1eta and companions would r·ay Pl0,000.00 as liquidated damages. Eventually, the Bureau of Int~rnal Revenue approved or accepted the certificates of indebtedr.ess tendered by the buyers as payment of the specific taxes on the cigarettes, the issuance of the cretificlltes of indebtedness having been approved by the National Trensurer of the Philippines. · The Bureau of Internal Re-. venue also authorized the Bureau of Customs to release to the huyers the whole shipment; the buyers filed their entries with the Bureau of Customs, and withdrew all the cigarettes and allegedly sold the same, Thereafter, petitioner asked !or the refund of the PS,800.00 paid by it in cash, in view of the full payment of the specific taxes on the cigarettel by the buyers. The Collector of Internal Revenue granted the rdund and his action was approved by the ~Ecretary of Finance. No appeal "''as taken from said decision; but because the amount involved was more than P5,000.00 the case was brought before the Board of Tax Appeals for final resolution under the provisions of Executive Order No. 401-A, Sec. 9, particularly tl1e second paragraph thereof. Said section 9 reads as foliows: "Sec. 9 In all cases invoh·ing an original assessment of P5,000 or le!::s, the action of the Collector of Internal Revem1e pur~unnt to his authority to compromi.!Je case1 and make refunds under section 809 of the National Internal Revenue fr1e, and that of thn Ct'lmmissioner of Customs pursuant to similar autl:ority under section 1369 of the Revised Administrative Olde, shall in no case become effective unless approved by the Secretary of Finance. Co9ies of the action of the Collector of Internal Revenue or of tht> Commissioner of Cuirtoms, as the case may be. and of thl! approval thereof by the Secretary of Finance, shall be promptly furnished the Board of Tax Appeals. and within sixty days from the receipt of copy thereof, the Board may, for jut;tifiable reas6ns, review the ,,,ot•~ proprio . December 81, 1954 THE LA WYERS JOURNAL 601 "Hut in cases involving an origimil assessment of more than P5,000, the 3.pprovnl by the Secrc~ary of Finance of the action taken as aforesaid by the Collector of Internal Revenue or of the Commissioner of Customs shnll not become effective until 2nd unl1:>ss the same is 2pproved hy the Board of Tax Appeals.'' The case was set for hearing before the Tax Board and memor:mda were filed after which, the Board issued its resolution dated January 31, 1953. The Board not only reversed the decisilm of the Collector of Internal Revenue granting the refund of PB,800.00 but it also rejected the payment of the entire amount of specific taxes in certificates of indebtedness, and ordered petitioner to pay the balance of P43,560.00 in cash. Jn other words, the GDod Day Trading Corporation wl1ich originally imported the cigarettes whose specific taxes amounted to P52,360. 00 was held liable and was orci>?red to pay the whole of said specific taxes. Petitioner asked for reconsiderntion claiming that the payment of P8,800.00 in cash amounted to a double payment because the corresponding amount was later paiC. with certificates of indebtedness, accepted by the Collector of Internal Revenue and approved by the Secretary of Finance; being double payment petitioner was entitled to a refund; moreover, as~uming that petitionet was not entitled to refund, the Tax Bo'lrd had neither authority nor jurisdiction to order petitionH to pay the balance of P43,560.00 becnnse it was not involved nor was it an issue in the matter submitted to the Tax Board for review. Acting upon the motion for reconsid~ra tion the .Tax Board denied the same, saying that said mot.ion wa'!I filed oct of time; that the resolution had become final, and that even if the resolution wer£> still. subject to modification and that the Board were to admit that it hsd no jurisdiction to order tho petitioner to pay the balance of the specific faxes due, still petition· er would gain nrJthing by it bccausC.; the Tax Board may yet and could reverse the decision of the Collector of Internal Revenue and f:njoin him to collc>ct from petitil)ner the snid amount of the b:ilance, pursuant to the Board's ruling th.:i.t the petitioner is the itnporter of the cigarettes and so was bound to pay said taxes. Pe. titioner is now appealing from the resolution and order of the Board of Tax Appeals. - Incidentally, and to avoid any possible confusion, we might state that, presumably due to a ruling by this Tribunal lUniverr;ity of Santo Tomas v, Board of Tax Appeals, G. R. No. L-5701, June 23, 1953) that the Board of Tax Appeals was illeg.:i.Uy established (because by mere Executive Order) for the reason that the jurisdiction assigned to it deprived the Cou:rts of First Instance of their jurisdiction to {:ntertain :md pass upon cases taken to them from actions and decisions of the Collector of Customs and the Collector of Internal Revenue regarding taxes, assessments, refunds, etc., Republic Act 1125 was subsequently passed. Said Act aboli!'lhed the Board of Tax Appeals, created what is now known as the COURT OF TAX APPEALS with practically the same jurisdiction r.nd functions of the former Board of Tax Appeals, and altho it npealed Executive Order No. 401-A, nevertheless it provided that all casea decided by the former Board of Tax Appeals and appeal· ed to the Supreme Court pursmmt to Executive Order No. 401A shall be decided by the Supreme Court on the merits, to all intents and purpases as if said Executive Order 401-A had been duly enacted by Con~ess. We are. therofore, deciding this case purtuant to the provisions of said Executive Order 401-A. The main ground on which t:he Tax Board based its resolution is that !)etitioner Good Day TraJing Corpo·ration is the importer of the shipment of cigarettes and therefore is the one called ui:on to pay the specific taxes, and consequently, should pay the !lame in cash, and the Tax Board proceeds to cite authorities defining what is meant by an importer, namely, that the importer is the primary consignee to whom the goods are eent anci who himsr.lf presents the invoices, makes the entry, receives the bill of lading, and gets the goods, !'l.S distinguished from one who may be the ultimate consignee, and that it does not include a person who purchases the goods Crom the impor't~r after they have been brought within the jurisdiction of the United States. On the other hand, petitioner claims that undei· section 1248 of the Revised Administrative Code which reads as folJ.JWs: "Sec. 1248. lt'hen importation by sea begins and endS, - Importation by sea begins when the importing vessel enters the jurisdictional waters ".lf t11e Philippines with intention to unload therein, and is not completed until the duties due upon the merchandise have been paid or secured to be paid at a port of entry and the Jeial pcrniit for withdrawal shall have been granted, or, in case said merchandise is free of d•1ty, until it has legally left the jurisdiction of the customs." importation is not completed until the duties due upon the mer· chandise have been paid and legal permit for withdrawal shall have been granted. So that the person or entity paying the duties due and receiving the legal permit for withdrawal and actually withdrawing the goods becomes the importer. Under .our view of the case, whether or not petitioner is the importer of the cigarettes in question, is of little import because under section 125 of the N;tional Internal Revenue Code which pr.ovides - "Sec. 125. Paymc7tt of speciffr: ta::e on imported articles.· - Specific taxes en imported articles shall be paid by the owner or importer to the customs officers, conforma.b1y with regulations of the Department of Finance and before the release of such articles from t.l~C' customhouse." either the owner or importer shall pay the specific taxes on imported articles. So that if the !'ale of the cigarettes by the imparter to the owners ·Jf the certificates of indebtedness was valid, {hen said purchasers became the oVJners of the shipment and -could pay tho specific taxes. We, therefore, believe and hold that the Tax B~rd erred in holding that only petitioner Good Day Trading Corporatio'n was called upon and could pay the specific taxes on the cigarette shipment . What about the payment of the balance of P43,560.00 ordered by the Tax Board to be paid by petitioner in spite of the payment of the entire specific tax in certificates of indebtedness? We agre" with the petitioner that only the question of the refund of PS,800.00 was in issue and was involved in the matter considered and decided by the Tax Board. Jt will be i·emembe1·ed that there was no appeal from the decision of the Collector of Internal Revenue approving the refund, which decision was approved by the Secretary of Finance. If it was brought to the Tax Board at all, it was because of the provisions of Section 9 of Executive Order No. 401-A already reproduced at the first part of this decision. Under said section, in cases of original assessment involving f'S,000.00 or less, in one case and involving more than P'5,000.00. in another it is the action of the Collector of Internal Revenue pursuant to his authority to compromise cases and make refunds under section 309 of the National Internal Revenue Code, that is subject to review and approval by the Tax Board. So that the assessment and payment of the specific tax of P52,360.00 in themselves, where there was neither dispute nor appeal, was not subject to review by the Tax Board. What was subject to review and what was in issue here was the refund of PS,800.00 approved by the Collector of Internal Revenue and approved by the Secretary of Finance because that was an action taken by the Collector of Internal Revenue pursuant to his authority to compromise cases and make refunds under section 309 Jf the National Internal Revenue Code. Consequently, the consideration and re;;olntion by the Tax Board should be confined to that amount and to the propriety of the refund, nothing more. One of the reasons if not the mti.in consideration behind the motion of the Tax Board in ordering the payment of the whole of the specific t.::ixes by the petitioner, and in -cash, is rcflectcil in a portion of its resolution which we quote: "x x x. It is apparent that interested parties w.::mted to negotiate their backpay certificates by circumventing the law and as wisely i·ecommended by the Collector of Internal Re603 THE LA WYERS JOYRNAL December 31, 1954 venue in his memorandum, 'as a measure of sound fiscal policy, the acceptance of applications for issuance of certificates of indebtedness for the payment of specific tax on imported articles, should be disapproved.' To allow the purchasers the payment of specific tax on imported goods in backpay certificates will open a way to unscrupulous dealers to speculate in the negotiation of backpay certificates." The Tax Board in its resolution added that "it is highly improper for the Government to accept certificates of indebtedness in lieu of cash.'' We can well understand the point of view of the Tax Board. There is reason to suspect that the 29 alleged purchasers of the cigarettes whose certificates of indebtedness (back pay) were used to pay the specific taxes, were not bona-fide purchasers; that they were not interested in the cigarettes imported but were solely concerned with getting their backpay liquidated by any one who may have bought the same at a discount and later used them to pay the specific taxes by making it appear that 29 persons who had nothing in common but their ownership of backpay certificates, and who heretofore were never importers, dealers o'r buyyers of foreign cigarettes, all of a sudden were drawn and banded together to invest in a commodity they never dealt in or were interested in, and became purchasers and owners of the entire shipment of cigarettes. The interest taken and solicitude shown by the Tax Board for the Government and the public, is commendable indeed. Howevel', the present appeal has to be decided solely on the basis of. the pertinent legal provisions. Whether or not owners of backpay cer· tificates should be given certificates of indebtedness ostensibly to be used to pay taxes but in reality to be speculated upon and negotiated by some unscrupulous persons, is wholly the legal concern of the Treasurer of the Philippines and the Department to be affected later by the use of said certificates of indebtedness. The attitude of the Tax Board intended to minimize this anomalous practice may be of great interest to the department or departments of the Government charged with the issuance of certificates of indebtedness based on backpay, and the acceptance of the -saine in payment of taxe~. In view of the foregoing, the resolution of the Tax Board denying the refund of P8,800.00 and ordering petitioner to pay the balance of P43,560.00 is reversed. No costs. Let copies of this decision be furnished the Treasurer of the Philippi~es and the Secretary of Finance. Paras, C. J., Pablo, Bengzon, A. Reyes, Jitgo, Bautista Angelo, Labrador, Concepcion and J. B. L. Reyes, J.J., concur. IX Pedro Gabriel and Avelino Natividad, Petitioners, us. People uf the Philippines and Court of Appeals (First Division), Responder.ts, G.R. No. L-6730, October 15, 1954, Reyes, A., J . l. TRESPASS TO DWELLING; OPPOSITION TO ENTER NEED NOT BE EXPRESSED BY DIRECT WORDS; OPPOSITION BY ACTION OF HOUSEHOLDER. - Prohibition to enter a dwelling does not have to be expressed in words. It may be inferred where the lady of the house tells defendants to wait on the porch and closes the door behind her as she enters the drawing room. 2. ID.; ID.; ID.; MERE SUSPICION THAT HOUSEHOLDER IS HIDING TRANSFORMER USED FOR STEALING ELECTRICITY DOES NOT GIVE MERALCO LINE INSPECTORS RIGHT TO ENTER HOUSE AGAINST HIS WILL. - Mere suspicion that the householder is hiding a transformer used by him in stealing electricity in his house does not give the Meraleo line inspectors the right to enter the house against his will. Ross, Selph, Carrasco & Janda for the petitioner:i and appellants. Assistant Solicitor Gene,ral Guillermo E. Torres and Solicitor Felicisimo R. Rosete for the respondents and appellees. DECISION REYES, A., J.: This is an appeal from a judgment of the Court of Appeals, convicting the appellants Pedro Gabriel and Avelino Natividad of simple trespass to dwelling on facts found by said court to be as follows: · "x x x Sherman Jones and his wife, Josefina Jones, were occupying the house No. 9-B, M. H. del Pilar St., Malabon, Rizal, having as neighbor their comadre Mariquita Beltran. The electric meter of the premises was installed on a wall in the balcony, and visible from the porch of the house (Exhibit I). At about 7:00 o'clock in the evening of April 19, 1949, accused Pedro Gabriel, Avelino Trinidad and Miguel Evang~ li;;ta arrived in the house, presented themselves as Meralco light inspectors to Mrs. Jones who was then on the stairs of the house with Mariquita and inquired from the ladies for Sherman Jones. Mrs. Jones told them to wait on the porch; she entered the livinir room, closed the door behind her and went to the family bedroom where Sherman was then in the net of changing his clothes. While Mrs. Jones was inside the bedroom and informing her husband of the presence of the Meralco inspectors, accused Gabriel inspected the electric meter and then shouted to his co-accused Natividad: 'Naty, atras ang contador.' Natividad rushed into the living room and then entered the bedroon where Sherman and his wife were talking. Natividad pushed the door of the bedroom with such force that the said door brushed aside Mrs. Jones who was then leaning behind it. Accused Gabriel followed Natividad to the bedroom and, with the help of flashlights, both searched for a gadget which they suspected Sherman used in order to steal electric fluid. Notwithstanding Sherman's protest of their intrusion, the two accused continued their search. Finding that Sherman meant business, the intruders left the bedroon hastily, boarded their jeep and went away with the other accused Evangelista to Sangandaan Street where they met policeman Pablo Malesido of Caloocan. The trio requested the policeman to accompany them to Sherman's house in order to explain to him that they had no intention to do him any harm. The polic~ man accompanied them, but upon noticing the presence of several Americans in the house, they left. They noticed later that a truck commonly known as 6 x G started from Sherman's house and followed them. They were able to hide and later went to the municipal building of Caloocan, at which Sherman and his companions subsequently arrived to complain. Sherman's complaint, however, was referred to the police authorities of Malabon who had jurisdiction over the case." In asking for the reversal of the judgment below counsel for appellants argue that inasmuch as the original entry was with the permission of the occupants of the house and therefore lawful, nothing that happened afterwards could "convert the original lawful entry into an unlawful one." The argument assumes that appellants entered a dwelling with the consent of the householder. But the assumption is gratuitous and unwananted, the Court of Appeals having found "that the entry was against the will of the spouses." That will was, we think, clearly manifested by the lady (.f the house when she told appellants to wait on the porch and dosed the door behind her as she entered the drawing room. She did not, it is true, in so many words te11 the appellani..s not to enter. But when she made them wait outside and shut the door to the interior of tile house, her action spoke louder than words. The porch is an open part of tl1e house, ~nd being aUowed to wait there under the circumstances mentioned can in no sense be taken as entry to a dwelling with the consent of the dweller. Counsel cite the cases of U, S , v. DioniSio and Del Rosario, 12 Phil. 288; U. S. v. Flemister, 1 Phil. 354; and People v. December 31, 1954 THE J,AWYERS JOURNAL 603 De P~ralta, 42 Phil. 69, But those cases were decided upon facts who, by her action if not by direct words, made it plain to the different from those of tho present case. appellants that they were not to entc1 her dwelling. In the case first cited. U. S. v. Dionisio and Del Rosario, the defendants found the principal door of a house half-open. Entering without opposition fr('lm the occupant of the lower p.'ll't of the house, who was present, they proceeded to the upper story, nJso without opposition, and there conversed with one of the inmates, who invited them to sit down and allowed them to stay for about two hours. Then h·cuble nrnse when defendants, posing ns detectives, started doing something illegal. In declaring de4 fendants not guilty of the crime of trespass to dwelling, this Ccurt there held that the facts and circumstances f rom which, in a given cs.Ee, the opposition of the occupant may be inferred, must have been in existence prillr to or at lhc time of the entry, and in no Event. can facts arising after an entry has been secured with the express or tacit consent of the occupant change the character of the entry from one with the assent of the oc.!upant to one contrary thereto. That case is to be distinguished from the one befqre us in that there the defendants entered a half-opened door and wt>nt i11side the house without opposition, express or implied, from any of the occupants. Here, on the other hand, the lady of the house clearly - be it only impliedly - manifested her opposition to ap· pellants' entry by telling them to wait on the porch and closing the door behind her as she left them there. In the second case, U. S. v. F'lemister, the defendant, an American, went to a ball uninvited, danced with somP.body ·rmd then left. Returning a short time thereafter, he was met near the door by the host, \yho took him by the hand and asked him if he had come to dance and even invited him to be seated, but tried to prevent him from entering the sala where there was a guest, another American, with whom he had a quarrel pendinir. Lastly, counsel contend that appellants are exempt from crim4 inal liability under the third paragraph of Art. 280 of the Revised Penal Code, because "they .rendered a service to justice" when, as Meralco line inspectors, they ''followed Mr!:'. Sherman Jones to the bedroom" and the.re found her husband "hiding a transformer in an 'aparndor' ", Here again, counsel assume something which was not believed by the Court of Appeals, that is, that appellants s.'lw Jones in the act of hiding a transformer used by him "in skating electricity/' this claim being characterized by the court as nothing but a "vain effort on the part of the appellants to fit the facts of the case to the provisions of tho Revised Penal Code 1\1 the effect that a person who enters a dwelling for the purpose of rendering service to justice, is not guilty of trespass." In other words, the Court of Appeals believed that appellants merely suspected that there was a transformer in the house. That alone did not give them the right t.:. enter the house against the will rof its owner, unarmed as they were with a search warrii.nt. It appearing that the judgment appealed from is in acccrd4 ance with law and tlle facts as found by the Court of Appe:i.Js, the same is hereby affirmed, with costs against the appellants . Paras, C.J., Pablo, Hengzon, Padilla, Montemayor, Jugo, Bautista. Angelo, Coticepcion, J, B. L. Reyes, J.J. x Aurelia de Lara and Rufino S, de Guzman, Plaintif!s and Appellants, vs. Jacinto Ayroso, Defendant and Appellant, No. L-6122 , May 31, 1954, R eyes, A., J. The defrndant, however, rudely brushed the host aside, procee'.!ed 1. tQ the sal11. and quarreled with the other American. "It. seems clear to us," said this Court in declaring tho:! defendant not goilty LAND REGISTRATION LAW; MORTGAGE EXECUTED BY AN IMPOSTOR A NULLITY; REGISTRATION DOES NOT VALIDATE MORTGAGE. - A mortgage executed by an of trespass to dwPl\ing-, "that the purpose of the owner of the J10use was to prohibit the defendant not from entering his house but from entering .the sala in order to avoid a quarrel between the two Americans. His taking the cb:!fendant by the hand, a:;king him if he came to dance, and requesting him to be seated, are inconsistent with the idea that he was attempting to keep the defendant from entering the house." Again, unlike the appellants ir. the present case, the defendant in the case cited was not pro- 2. hibited from enterin!? the house; on the contrary, it woulci apr.(.'ar that he was welcomed into it. In the third case, Peo11fe v . De Pe.rarta, the accused, the new president of the Philippine Marine Union, c'.ll!cd at the door of a 1·oom which liis predecessor in office was allowed to occupy as his clweUing in a house rented by the union, pushed the said door and without the permission ,.,, the occupant entered the room to fake nway a desk glass which he! beli~vcd was union property. There was no evidence that the occupant "had expressed his will in th~ sense of prohibiting fthe accused1 from entering his room," and it was to b(' supposed, this Cou1t said, "that the members of the Philippine Marine Union, among lhem the accused, had 1'0me familiarity which warrants entrance into the room occupied by the president of the association, particularly when we contider the hour at which the act in question happened (between half past !:~ma~asel~:~n b~~ri~~~e:0::i~::i:e;h~itf:c: ~e~, ~~ed ~~:r c~!cut!~ ~. stance that the room in question was part of the house rented to impostor without the authority of the owner of the interest mortgaged is a nullity. Its registration under the Land Registration Law lends it no validity because, according to the last proviso to the second po.ragraph of section 5f> of that Jaw, registration procured by the presentntion of a forged deed is nu II and ''oid. ID . ; INNOCENT PURCHASERS FOR VALUE WHEN PR04 TECTED; DUTY OF VENDEE TO ASCERT AJN THE IDENTITY OF VENDOR. - Where the certificate of title was 3lready in the name .of the forger when the land was sold to an innocent purchaser, the vendee had the right to rely on what appeared in the certificate and, in the absencP of anything to excite suspicion, was under M obligatoin to look beyond the the face of said certificate. But, where the title was still in the name of the real owner when the land was mortgnged to the plaintiffs by the impostor, although it was not incumbent upon them to inquire into the ownership of the property and go beyond what was stated on the face of the certificate of title, it was their duty to asc~rtain thP Identity of the man with whom they were dealing, as well as his legal authority . to convey. That duty dev.olveJ upon all persons buying pr~perty of r..ny kind, and one wh" neglf'.cts it doea so at his peril. ID.; ID. i ELEMENT ESSENTIAL TO THE APPLICATION OF PRINCIPLE OF EQUITY. - Before the principle of equity that "as between two innocent persons, one of whom must suffer the consequences of a breach of trust, the one who made it possible by his act of confidence must bear thP Ioss" ~an be applied, it is essential that the fraud was ms.de possible by the owner's act in entrusting the certificate or title to another, said association." Upon these facts, this Court acquitted the a.ccused of the charge of trespass to dwelling, follow ing the uni· form doctrine here and in Spain that "this crime is committed when a person enters another's dwelling against the will of the occupant, but not when the entrance is effected without his know4 ledge or opposition." It is to ~ noted that the entry in that case was effected without express or implied .opposition from the oc~uphnt of the room and under circumstance! warranting ati entrance without previous leave. In the present case, the entry 4. ID.; JD.; JD.; MORTGAGE FORGED WITHOUT NEGLIGENCE OF OWNER CAN NOT BE ENFORCED AGAINTS was, as already noted, against the will of the lady of the house, HIM, - Where the mortgage is admittedly in forgery and the registered owner has not been shown to have been negligent or 604 THE LAWYERS JOURNAL December 81, 1954 in connivance with the forger, the mortgage can not be enforced against the owner. / 10.; PURPOSE OF; LAW CAN NOT BE USED AS SHIELD FOR COMMISSION OF FRAUD. - Although the underlying purpose of the Land Registration Law is to impart stability and conclusiveness to transactions that have been placed within its operations, still that law does not permit its provisions to be used as :i shield for the commission of fraud. Lauro Estebau for the plaintiffs and appellants. Alfonso G. Espinosa for the defendant and appeltee. DECISION REYES, J.: .This is an action for foreclosure of mortgage. From the stip1ilation of facts and the additional evidence submitted at the hearing the lower court found and it is not disputed that the spouses Jacinto Ayroso i:.nd Mnnuel£t. Lacanilao were the registered owners of a J!latcel <Jf 'land, situated in the municipality of Cabanatuan, Nueva Ecija, their title thereto being evidenced by Transfer Certificate No. 4203 of the land records of that province. The land had an area of a little over 3-1/2 hect:i.res, but ti.ccording to :m annotation on the back of the certificate a · large tmrtion of that ~rea-a little less thtm 3 hectares-bad alrC'Ddy be-en alienated, sold to the Pilgrim Ho1iness Church in 1940, The certificate was kept in Jacinto Ayraso's trunk in his house in the poblticion of Cabanatmrn, but som~how his daughter, Juliana Ayroso, managed to get possession of it without his knowledge and const"nt and gave it to a man whose name does not appear in the record. With the certificate in his posses:iion and representing himself to be Jacinto Ayroso, this man was able to obtain from the plaintiff spouses the sum of P2,000. 00, which be agreed to pay bAck in three months and as security the1·ef.or constituted a mortgage on Jacinto Ayroso's interest in the land co\•ered by the Certificate, signing the deed o1 mortgage with the latter's name. At ~.bat time, April 19, 194!1, Jacinto Ayroso was alrt'ady a widower, hi~ wife having died on, the 31st of the preceding month. Neither Jacin. to Ayroso nor the man who impersonated him was personally known to the plaintiffs, though the latter believed in good faith that the two wne one and the same person, the impostor beir.g then accom· r.anied by Ayroso's daughter Juli11.na whom they knew personally and who also signed as a witnes!'l to the mortgage deed. The mortgage was later registered in the office of the Register of Deeds of Nueva Ecija and annotated on the back of the certificate of title. Jacinto Ayroso never authorized anyone to mortgage the land and received no part of the mortgage loan. Upon the foregoing facts, the trial court rendered judgment declaring the mortgage invalid, ordering the Register of Deeds of Nueva Ecij~ to cancel the corresponding annotation on Transfer Certificate of Title No, 4203 and dismissing the complaint with costs. From this judgment al} appeal has been taken directly to this Court, and the question for determination is whether the said mortgage may be enforced by plaintiffs against the defendant Jacinto Ayroso. There can be no question that the mortgage under consideration is a nullity, the same having been executed by an impostor witho'.lt the authority of the owner of the interest mortgaged. Its registration under the Land Registration Law lends it no validity because, according to the last proviso to the second paragraph of section 55 of that law, registration procured by the presentation t·f a forged deed is null and void. Plaintiffs, however, allege that they are inMcent holders for value of a Torrl'.!ns certificate of title, and on the authority of Eliason vs. Wilborn (281 U. S. 457), De la Cruz vs. Fahie <85 Phil., 144), and Blondeau et al. vs. Nano and Vallejo (61 Phil . t25>, invoke the protection accnrded t.o such holders. But an examination of those cases will show that they have no application to the one before us, In the case first cited, Eliason vs. Wilbo~ the appellants, cwners of registered land. delivered t1ie certificate of title to a party under an agreement to sell and the fiiaid party forged a deed to himself, had the certificate issued in his name and then conveyed it to others, who were good faith purchasers for value. Upholding the last conveyance, the U. S. Supreme Coart said: "The appellants saw fit to entrust it <the certificate) to Napletone rind they took the risk x x x. As between two innocent persons, one of whom must suffer the oonsequences of a breach of trust, thf: one who made it possible by his set of confidence must bear the loss." In the second case, De la Cruz vs, Fahie, the attorney-in-fact of the owner of registered land, liaving been entrusted with the title to said property, abused the confidence thus reposed upon him; forged a deed in his favor, had a new title issued to himself and then conveyed it to ancther, who thereafter was issued a new certific:.ite of title. This Court held the purchaser to be the absolute owner of the land as an innocent holder of a title for value under section 55 of Act No, 496, It will be notecl that in both of the above cases the certificate of title was already In the name of the forger when the land was sold tu an innocent purchaser. In such caao the vendee had the right to rely on what app~ared in the certificate and, in the absence of anything to e~cite suspicion, w:is under no obligation to look beyond the certificate and investigate the title of the vendor appearing on the face of said certificate to be the registered oWlier. · It should also be noted that in both cases fraud was made possible by the owner's act in entrusting the cl'.!rtificate of title to another. And this should be emphasized bEcause it is what impelled t.his Court to apply in those cases that principle of equity that "as between two innricent persons, one of whom must suffer the consequences of a breach of trust, tht' one who made it possible by his act of confidence must bear the loss." In the present case the title was still in the name of the real owner ·when th!! land was mortgage to the plaintiffs by the impostor. And it is obvious that plaintiffs were defrauded not because they relied upon what appeared in a Torrens certificate of title-there was nothing wrong with the certificate-but beea;ise ther believed the word$ of impostor when he told them that he \Vas the person named as owner in the certificate. As the learned trial judge says in his decisicn, it was not incumbent upon pl:Jintiffs to inquire into the ownership of the property and go beye>nd what was stated on th(' face of the certificate of title, but it was their duty to ascertain the identity of the man with whom they were dealing, as well as his legal authority to convey, if they did not want to be imposed upon. That duty devolves upon all persons buying property of any kind, and one who neglects it does so at his peril. It should be added that thP. appellee has not entrusted the certificate of title to anybody, an element essential to the application of the principle .of equity above cited, It is tbut clear that the circumstances which impelled this Court in the cases cited to extend protection to the innocent holders for value of the Torrens certificates, at the expenze of the owner of the registered property, are not presenl; in the case at bar. Nor could the third case Cited, Blondeau et al. vs. Nano and Va~ lte:io sl'.!rve ns a good precedent for the .one now before us. That case, it is true, was also for foreclosure of mortgage, and the defens• cet up by the registered owner was also forgery. But it should be noted that in that case this C.Ourt found as a fact that thl! mortgage had not been foroed and in addition there was the circ11mstance that the registered owner had by his negligence or acquiescence, if not actual connivance, made it possible for the fraud to be committed. It is thus obvious that the case called for the ri.pplication of the same principle of equity already mentioned, and the decision rendered by this Court was in line with the two previous ca~es. But that decision does not fit the facts of the present case, where the mortgage is admittedly a forgery and the registered owner has not been shown to have been negligent or in con· nivance with the forger. The contention t11at it was negligence c.n appeltee's part to leave the Torrens title in his ·trunk in hie December 31, 1954 THE LAWYERS JOURNAl· 605 house in the poblacion. when most of the time he was in the t:arm, was we think well answered by the Ll'ial coul't when it said: "x .x x it was not shown that the defendant l1as acted with negligence in keeping the certificate of title in his trunk in his own house, That his daughter was able to steal it or take it from the trunk without his knowledge and consent and "''as alJle to make use of it for a fraud11!ent purpose, (it) does not necessarily follow that he was negligent. It is in keeping with ordinary pl'udence in common Filipino homes fOt' the owners thereof to keep their valuables in their trunks. It would be too much to expect of him that he should carry said certificatl' with him to wherever he goes." On the oth<'r hand the considerations underlying the decision in the case of Ch. Velosv & Rosaies ''s. L~ Urbana & Del Mar (58 Phil. 681>, cited by the sppellee, would seem to be applicab!e tc the present case. In thP casP cited, the plaintiff Veloso, owner C1f certain parcels of registered land, brought action to annul certf\in mortgages constituted therec:.n by her brother-in-law, ' t.hti rlefendant Del Mar, using two powers of attorney purportedly executed for that purpose by plaintiff and her husband Rosales, but which werC' in reality forged, the forgery having been committed by Del Mar him!'lelf. How Del Mar obtained po!'aesaio)'I of thP. r.ertificate Df title the report does not show, but the mortgages were duly registered and noted cm the certificates of title. In holding the mortgages void, this Court said: "x x x Inasnmch as Del Mar is not the registered o~n~ er of the mortgaged properties and inasmuch as the 2.ppellant was fully aware of the fact that it was dealing with him on the strength of the_ .alleged powers of attorney purporting to have been conferred upon him by the plaintiff, it was his duty to ascertain the genuineness of said instruments and not rely absoluti~ly and exclusively upon the fact that the said powers of attorney appeared to have been registered. In view of its failure to proceed in this manner, it acted negligently and should suffer the consequences and damages resulting from such transactions. <!"· 6&'L > Appellants, ~owever, cont.end that the doctrine laid down in that case has already been overruled by the Blondeau case, 8'1lpra. This is not so, and to show that it is still good jurisprudence, thia Court quotes it with approval in Lopez vs. Seva et al. !69 Phil. :nu, a ease decided aftel' the Blondeau decision. We are with the learnert trial judge in applying to the pre.!lent case, which, as His Honor w.~u says, "is fair and juat because it st::mds for the security and stabflity of property rights under any system of laws, includinl?' the TotTens system," affoMing protection against the dangerous tendency of unprincipled inchviduals "to enrich themselves at the expense of others thru illegal or seemingly lawful operations." And as His Honor also says, "as between an interpretation and application of the law which serves as an effective weapon to curb such dangerous tendency or that which technically may aid or foment it, the choice is clear an~ inavdd~ able." For, as rPpeatedly stated by this Court, although the underlying purpose of the Land Registrl!tion J_,aw is to impart stability and conclusiveness to transactions that have been placed within its operations, still that law does not permit its provisions to be used as a shield for the commission of fraud. In view fJf the foregoing, the judgment appealed from is affirmed, with costs against the appellants. Paras, C. J., Pablo, Ben9zon, llfontemayor, Jugo, Bautista Ange. lo, Labrador, and Co11cepcion, J.J., concur. XI The People of tM Philippines, Plaintiff and Appellee, vs. Pas.. cu.al Castro, Defendant and Appellant, G. R, No. L·6407, July 29, 1954, Bautista A n9elo, J. CRIMINAL PROCEDURE; PRESCRIPTION OF CRIMES MAY BE RAISED EVEN AFTER ARRAIGNMENT. - The plea of prescription should be set up before arraignment, or before the accused pleads to the charge; otherwise, the defense would be deemed waived. But this rule is not of absolute application, especially when it conflicts with a substantive provision of ' the law, such as that which refers to prescription of crimes, <P<'ople vs. Moran, 44 Phil., 387>. Since, undct· the Constitution, the Supreme Court has only the power to promulgate rules concerning pleadings, practice and procedure, and the admission to the practice of iaw, and cannot cover substantive rights, tl)e rule about waiver of the plea of prescription of crimes cannot be interpreted or given such scope '>r extent that would come into conflict or defeat an express provision of our substantive law . One of such provisions is article 89 of the Revised Penal Code which pro,·ides that the prescription of crime has the effect of totally extinguishing the criminal liability. The ruling laid down in the Moran case supra :;till holds good even if It were 1aid down before the adoption of the present Rules of Court. Solicitor GP.neral Jucm R. Liwa!i and Solicitor Isidro C. Bor,·&meo for the plaintiff and appellee, Alfredo atves for the dl!fenda.nt and a}iPellant. DECISION BAUTISTA ANGELO, J. : Apolonia Bustos, the complaiMnt, was the head teacher of the borrio school of San Jose, Macabebe, Pampanga, and Pascual Castro, the accused, a teacher in said school. In the mnrning of January 19, 1952, while the complainant was on his way to the barrio chapel to hear mass he met a group of persons including the accused. The complainant invited the accused to hear mass but instead of accepting his invitation a discussion ensued in the course of which the accused gave the complainant a fist blow on the face cau11ing him injuries which required medical attendance for ·n. period of five days, On April 14, 1952, a complaint for slight physical injuries was lodged by the complainant against the accused in the Just;ce of the Peace Court of Macabebe. Pampanga. After trial, the accused was found guilty as charged and sentenced to suffer fifteen days of arresto menor and to pay the costs . From this dtcision, the accused a,Ppealed to the Court of First Instance where he pleaded not guilty Before trial on the merits, but after he had entered his plea. the accused moved to . dismiss the charge on the ground that the crime had already prescribed. This plea was i:;tf\ored, and after tht> pre;;er.tation of evidence, the court rendered judgment. reit<?rating the same penalty imposed upon thf' accused by the inferior court. Hence, this appeal. The only issue tu · be determined is whether the lower court e1·red in not dismissing the information on the ground that the vffense charged had already prescribed. It appears that the incident which gavp rise to th<? injuries now complained of occ11rrcrl ·on January 19, 1952 while the corresponding criminal compfaint was filed before the justice of the peace court on April 14, l!l.'i2, or efter the period of twc months bad elapsed. And considering thal a light. offense. prescnbcil in two months <Article 90, Revised Penal Code>, it is now contended that the crime had Rlready prescril:ed and as such it cannot serve us basis of criminal prosecution. Ttie Solicitor General does not agree with this contention. He claims that, since the accused failed tC' moved to quash befcre pleading, he must be deemed to have waived this defense under Rule 113, Section 10, of the Rules of Court. The rule thus invoked in eff.:-ct provides that if the accused does not move to quash the information before he pleads thereto, "he shaU be tak~n to have waived all objections which are grounds for a motion to quash except when the complaint or information does not Charge an offense, or tht court is without jurisc!iction of tbe same." And one of the grounds on which a motion to 606 THE LAWYERS JOURNAL December 31, 1954 quash may be predicated is that the criminal actton or Iiabil~ty has been extinguished. <Section 2, paragraph f, Rule 113.) On the other hand, the law provides that the criminal liability may l:e extinguished by prescription of the crime . <Article 89, Revised Penal Code). The question tliat now arises is: Does the failure of the accused to move to quash before rleading constitute a waiver to raise the question of pr~scriptio!l nt a later stage of the case? A case in poir.t is People v. Moran, 44 Phil., 887. In that case, the accused was charged with a violation of the election law , He was found guilty and convicted and the judgment was affo-med, with slight modification,, by the Supreme Court . Pending i·r-consi<leration of the decision, the accused moved to dismiss the ease setting up the plea of presc_ ription. After tlie Attorney General was given an opportunity to answer the motion, and the parties had submitted memoranda in support of their respective oontentions, the Court ruled t hat the crime had already prescribed liolding that thi1= defense .cannot be deemed waived even if the case had been decided by (he lower comt and was pending appeal in the Supreme Court. The philosophy behind this ruling was :qitly stated as follows: hAlthougli. the general rule is that the d£;fense of prescription is not available unlet'ls expressly set llp in .he Jo,l'ct court, as in that case it is presumed to have been watveu and cannot be taken advantage of thereafter, yet this ntle. is not always of absolute application in rrhninal cases, such as that in which prescription of the crime is exp1·esly provided by law, for the State not having then the right to prosecute, or continue pi·osecut in~, nor to punish, (11· cont1°nue pm1i.~Mng, the offense, or fo continue holdh1g the defendant subject to its action through the imposition of the penalty, the court must so declare." And elab!'.lrating on thi!'I; 'Propnsition, tht! Court went on to state as follows: "As ~re1;cription of the crime is the loss by the State of the right to prosecute and puni;,h the same, it is abso~ulely indisputable thnt from the moment the State has lost or waived such right, the defendant n1ay, at any stage of the proceC'ding, demand and ask that the same be finally dismissed and he be acquitted from the complaint, and such petition is propc; and effective even if the court taking cognizance of the case has already l'endered judgment and said judgment is merely in suspense, pending the resolution of a motion for a reconsideration and new trial, and this is the more so since in such a case thel'e is not yet any final and irrevocable judgment.'' The ruling above advnted to squarely applies to the present cilee. Here, tht' rule provides that the plea of prescription should be set up before anaignment, or bC'fore the accused pleads to the charge, as othet·wisc the defense wnuld be deemed waived; but, a.s was well said in the Moran case, this rule is not of absolute application, e3pecially when it conflict-s with a substantive provision of the law, such as t'hat which refers to prescription of crimes . Since, under . the Constitution, the Supreme Court has onil' the power to promulgate rules concerning pleadings, practice and proceciure, and the admission to the practice of law, and cannot coYer imbstantive rights ($1::ction 13, Article VIII, of tha Constitution>, the rule we Sl'e ecnsidering cannot be interpreted or given such scope or extent that would come into conflict or d£;feat an express provision of our substantive law . One of such provisions is Article 89 of the Revi1>ed Penal Code which provides that the prescripticn of cl'ime has the effect of totally extinguishing the criminal liability. And so we hold tr.at the ruling laid down in the Moran case still holds good even if it were laid down before the adoption ('If the prescmt Rules of C.ourt. The learned dissenter opines t~at the Moran case has already lost its validity because at the time it was decided there was no rule prescribing waiver of prescription and, besides, this question was not raised and could not have been raised because the law \ms enacted only when the case was already pending in the Supreme Court. In other words, the learned dissenter is of the opinion that the Mornn case cam.ct be invoked as authority because the question of waiver was not specially raised therein unlike the present case. Wt! cannot agree fo this appraisal of the Moran case for precis~ly the ruling laid down therein was prtdieated upon the theory that the defense of prescription, ~ven if not set up its propel' time, is not cicemed waived it being an exception to t;he general rule. Thus, it was there said that, "Although the gener8.1 rule is that tho? defense oi :prescription ~ not available un!ess expressly set up in the lower court, as in t1tat case it is presumed to have been waived nnd cann:>t be taken advantage of thc!'reafter, yet this rule is r.ot ah'lays of abSQlute application in criminal cases x xx. " It is tl'ue that the doctrine in the Moran case was not adhered to in the case of Santos vs, Supt, of the "Phil. Training School for Girls", 55 Phil. 345, but that was because the plrn of prescription wag raised in a petition for a writ of habeas corpus. It has been held that such plea is not available'' 011 an api:·lication for e. writ of habeas corpus <16 C. J. 416), for the rcaH.n that "All questions which mu.y arise in the ordel'iy course of a criminal prosecution are to be determined by t-he court to whose jurisdiction the defendant has been subjected by the law, and the fact that a ddendont has a good and sufficient defense to a criminal charge on which he is held will 11ot tntitle him to his discharge 011 habe(J,, corpuB." <12 R .C. L., 1206.) (1) <Underlining supplied) The Santos case did not nullify our TUling in the Moran case. An attempt was made to maintain the case by showing that ns a result of the incident in question a criminal complaint for attempted homicide was filed agninst the ac~used prior to the charge of slight physical injuries which was dismissed without prejmlice and must have had the effect of interrupting t1 1e pel'i1d of prescription; but this attempt cannot be given serious consideration it appearing that the date when the criminal complaint for attempted homicide was filed, does not appear in the record. The only data we have on hand is that the complaint was dismissed on March 27, 1952. The failure of the Government to furnish us sufficient data prevents us from concluding· that the presc1iption period has not yet elapsed E=ince the charge for attempted homicide may h~ve been filed after March 20, 1952 and dismissed en March 27. Under the facts presently obtaining the only alternativf: is to dismiss the ca111! as prayed fl'.ll' by foe defense. Wherefore, the judgment appealed from is reversed, and the cnse is dismissde, with C.Jsts fie oftcio. Paras, C.J., Pablo, Padilla, Jugo, Labrador, and Concepcion, J.J.; concur. Alc:r. Reyes, J., concurs in the result. HENGZON, J. dissenting: Without saying so, the decisit.n strikes down Rule 113 sccfrms 2({) and 10 of the Rules of Court providing that if the defendant does not, before pleading move to quash on the ground tf".at the criminal action or liability has been extinguished "he rhall be taken to have Waived" ;;iuch defense, The Court confesses, sotto voce, that it exceeded its constitutional powers in promulgating such Rule or its pertinent portion, because it takes away a substantial right. · Willingness to admit error is a)ways praiseworthy; but when such acknowledgment is dee to :'I short-sighted view of jurisdictional post!! and boundaries, regrets are surely in order. For the reccrd I must state, it was not my privilege to take riart in the preparation and promulgation of the Rules of Court of 1940. None the less it is my duty, as a member of the Court now, to exert efforts exploring the nature and extent of Rule 113, with a view to upholding it if legally possible, preserving intact the Court's regulatory powers under the Constitution. On thi!I subject, to give In easily enhances no judicial virtue. Following P. v. Moran <1923) , the majority brushes aside Rule 113 and declares that prescription may be asserted by the (I ) Thc~C! authoritie~ are quoted b~ the ponenl• In the Santoa ca..e 155 Phil. Mr;). Deeember Sl, 19M THE I.A WYERS JOURNAL nccused for the first time, even after pleading and even on appeal; but the fundamental facts must be borne in mind that Moran was tried for violation of the Election Lnw, at a time when no period of prescription for such offenses existed Ca); that during the p1:ndency of his appeal the law was amended, and ftw tho ffrst time a prescription period 'vas fixed, and that he immediately invoked it. The Court had to agree that Moran ma.de no waiver, because lie. could not have waived something (prescription) that did not exist when he was tried in the court below Cb). True, there were dicta regarding non-waivability of the defrnse of pTescription, in view of its nature. But in the yea,; 1923 Rule 113 sections 2(f) and 10 had not yet been adopted (c). Ob'·iously in the absence of positive legal rules, the Court could then 0923) and did expound, abstract principles of criminal law about W£iiver of !Jrescription. Now that the Rules of Court <1940) pro1:ido otherwise expressly, the philosophical observations in People v. Moran have lost their validity. If necessary it should be declared that the Rules modified pro tanto the theories described in that case. In fact those theories were limited -if not overruledir. Santos v. Superintendent, 55 Phil. 345, wherein Virginia s~m tos having been finally convicted of violation of ordinance, filed hr.beas corpus proceedings, alleging the offense had prescribed. Hevoking the lower court that upheld prescription, we · said prescription may be, and was, waived thru failure to allege it on time. "In granting the writ, t.he lower court relied upon the ruling by this court in People vs. Moran <44 Phil., 387>, which was an ordinary criminal case and not an habeas corpus pro. ceedings and where the prescription of the violation of the Election Law was only alleged after the whole proceedings were over, because only then had the Legislature passed a law to that effect. In that case there was no waiver of thar defense for the simple reason that there was no prescription. If the plea of prescription will not be admitted by the court in habeas corpus pr.:iceedings, it is pri!cisely for the reason that it is deemed to have been waived. x x x That the defense of prescription must be alleged during the proceedings · in prosecution of the offense alleged to have prescribed, is a doctrim:t recoirnized by this court in United States vs. Serapio <23 Phil. , f84) where the principle is supported by citations of Aldegun vs. Hoskyn <2 Phil. 500), Domingo vs. Osorio <7 Phil., 405), Maxilom vs. Tabotabo (9 Phil., 390), Harty vs. Lun.:i (13 Phil., 31) and Sunico vs. Ramirez (14 Phil., 500) ." (55 Phil, 345> We held, expressly in the above case that the defense of prescription is waived if not alleged during the proceedings, notwithstanding "the State has lost" the right to punish. By the Rules we made it clear afterwards that it must be alleged before pleading; otherwise it is waived. This decision now confesses we had no power so to direct. Did we also exceed our power in the m~my cases upholding waiver· of prescription? CU . S, v. Serapio etc. supra.) In a few words this decision 1·eaches the conclusion that prescription being a substantial right, it 1s beyo!1d this Court's power to regulate and debar. Such a broad statement, sweeps away repeated practices, s]'.iecially in, civil cases. However I will answer it as follows: substantial rights may be lost -and have been lost- thru failure tt;i comply with rules of procedure or thru the neglect duly to set them up (d). Again the privilege against double jeopardy is a constitutional fa) & lb) i~~~s 34~ .. Superintendent of the Phil. 'fraining School for Girls, li.5 le) tc;lo~n:t\i~t!~ II new provi9lon; and section HI was litken from the American (d) E::rnmple11: Su..d on a forge<l promisory note trana~rib<xl in the eomf'l11lnt }~~g:re;e~ah! \~~65 \';,<>~~~~ specifically' under oath. Hesult, he canrw~ prov~ lll!eg~ue~ay%'cn~ ~~od~fe~~."o1ft,.::i~:~\~e ll~:5• 11a~~?~~Y paid, d~fendant fails to A. counterc.!aim not set up it bared. (Rule 10, see, 8) D1sebari:-e m bankruptcy. if not pleaded, ls waive. \Secs. 9 and 10, Rule 9) right even more substantial; but according to our Rules it is waived if not seasonably pleoded. And we :mid so in reueated decisions listed in the footnote (e), wherein we declined 0 to philosop!uze <along the lines of the Moran dicta), that as the first jeopardy meant "the loss by the State of ih right to prosecute and punish" the accused again, "it is absolutely indisputable that from the moment the state has lost or waived such right, the defendant may at any stage of the proceedings demand and ask that the same be finally dismissed" 1Jecause "the State not having then the right to prosecute" a second time "or to oonttnue holding the defendant subject to its action thru the imposition of the penalty, 1 he court must so declare". In those cases we also refused to consider that a constitutional i·ight -more than merely substa!ltive- should not be taken a"-'RY by operation of court decisions, or the Rules. It is undeniable that the matter of formulating defenses to define issues, and the proofs allowable, is procedural in nature, a matter of pleading and practice. That is exactly the scope of secs. 2(f) and 10 Rule ·113. They warn the defendant in advar.ce: if you do not allege prescription, before pleading, it will not be deemed an issue, and it cannot be proved. If he makes no allegations, he renounces the cj.efense. The Rules do not take it away. For all we know, the accused may have reasons to want acquittal c.n the merits, not on a plea of prescription. It might be asserted that pres.~ription needs no proof, because the information fixes the date of the crime's commission, and prescription may 'IX' counted up to the date of filing of such information, which date tl1e court knows. The assertion forgets that prescription begins to run, not necessarily from the crime's commission, but "from the day on whitih the crirr.c fa discovered by the offended party, fhe authorities or their agents". <Art. 31 Rev. Penal Code> The learned ponente wilt reply of course, that in this case the physical injuries had to be known on the same day they were inflicted, and that prescription began immediately. Correct. But we are writing doctrines for all cases. In malversation, forgery, bribery and other o£fonses, the crime is not usually known on the same day it is committed. Evidence of that <lay is therefore needed, upon proper allegations. Herein the raisan d'etre of the Rule ir. question. Yet I will m".'et the issue even on this particular ground. Thf~ c1ime, the decision states was known on thr. same day, Jan. 19, 1952; and as the information is dated April 14, 1952, i. e., moro than two months later, therefore prescription and acquittal. With all due respect, lhera seems to be- a jump to conclusions. The period might have been "interrupted'' by the filing of a complaint or by the defendant's escape to forf'ign countries, as expressly provided in Article 90 Rev. Penal Code. In fact the justice of the peace, and the court of first instance, say a criminal complaint for attempted homicide had previously been filed which was subsequently rlismissed without prejudice. However, despite such information, the majority dr.cision ~fres the point no serious con .. sideration "it appearing that •the date when the criminal complaint for attempted homicide was filed does not appear in the record''. th6 Government having failed "to furnish us sufficient data". To be sure, the Fiscal service will be surprised to infer what is left unsaid: "because it i's the duty of the prosecution to prove that 1 he crime has not prescribed, even if the accused does not ra.ise the point". If the ponente i<hould insist that the accused here invoked r;escription, my a11swer would be: the allegation was late, and ac.. C;>rding to Rule 113, prescription was waived. His reply should then be: but the pros'!cution ought to have known that Rule l 13 was a nuliity becausf' it was beyond this Courts' power, and there was no waiver. (e) U.S: v. Peru, I Phil. 203: U.S. v. Cru1., $6 Phil. 727: U.S. v. Ondaro, 3~ Phil. 76; P. v. Cabero. 61 Phil, 121: Trinidad v. Sia<:hi, 12 Phil. 241. 608 THE LAWYERS JQURNAL December 81, 195' No rejoinder is necessary .. ,, Need it be stressed that the 4. prosecution had a right to rely on the Ruic promulgateJ by the highest court of the land? Could it presume to know bE:tter? ID.; ID.; ID.; PARTITION OF PROPERTIES DOES NOT COME' UNDER SECTION 3 OF THE PHILIPPINE PROPERTY ACT 01" 1946 BUT UNDER RULE 71 OF THE RULES OF COURT. - Where the averments of the complaint show that the real purpose of the action is not the recovery of possession but the partition of the properties, the action is not, and could not be, one under l'CCtion 3 of the Philippine Prope1-ty Act of 1946, but one contemplated in Rule 71 of the Rules of C-Ourt. And this leads to the inequitable result of the majority's position: Having acted according to Rule 113 and disregarded prescription, the State is left "holding the bag" when we strike such Rule down. Faimess, I submit, requires that the prosecution t.houlrl at least be allowed, to prove the interruption of the period which it asserts Or do we advise litigants to stick to the Rules at their own peril? M012temayo-r, J., concur. XII Herbert Brownell, Jr., Attorney General of the United States, as successo-r of the Philippine Alien Property Administrator, Plain. tiif and Appellant, vs. llfaeario Bautista, Defendant and Appellee ltepublic of the Philippines, Intervenor and Appellant, G. R. ' No. L-6801, September 28, 1954, Bautista Angelo, J. l. INTERNATIONAL LAW; SEIZURE AND SEQUESTRATION OF ENEMY-OWNED PROPERTIES. - It is a well.settled rule that the Congress of the United States, in time of war, may authorize and provide for the seizure and sequestration, throug·h executive channels, of properties believed to be enemyownecl, if adequate provision he made for a return in case.of mistake. <Stoehr v. Wallace, 255 U. S. 239, 65 L. ed., 604, / 612; Central Union Trust C.0. vs. Garvan, 254 U. S. 554, / 65 L. ed. 403.) 2. ID.; ID.: PHILIPPINE PROPERTY ACT OF 1946; EXTRATERRITORIAL EFFECT IN THE PHILIPPINES AFTER JULY 4 1946. - Can the PhUippine Alien Property Administrator im·oke the Philippine Property Act of 1946 to enforce his vesting order or to compel compliance with his demand for possession of the properties vested, in spite of the proclamatio.n of Philippin<: independt>nce on July 4, 1946? Held: "The cansent of th<> Philippine Government to tha appJlcation of the Philippine Properly Act of 1946 to the Philippines after ind<!pendence was given, not only _ by the Executive Department of the Philippine Gllvernment, but also by the Congress, which enacted the laws th:i.t would implement or carry out the benefits accruing from the opemtion of the United States law." * * * "In the case at bar. our ratification of or concurrence tt, tho agreement for the extension of the PM!ippine Property Act of 1946 is dearly implied from the acts of the President of the Philippines and of the Secretary of Foreign Affairs, as well as by the enatbnent of Republic Acts No. 7, 8 and 477." <Brownell vs. S:.in Life Assurance Co. of Canada. L-3751, June 22, 1954.) D. ID.; ID.: ID.; ACTION TAKEN BY ADMINISTRATOR UNDER SECTION 3 OF THE PHILIPPINE PROPERTY ACT OF 1946; NATURE OF. - If an action is taken by the Administr&.tor under section 3 of the Philippine Property Act of 1946, our court.s ca11 c..nly pas11 upon the identity of the property and the que<ition of possegsion but cannot look into the validity of thf' vesting order, nor entertain any adver!:e claim which would require the determination of ownership of the prDperty. (Silesian American Corpore.tion vs. Mark11am, 156 Fert. Sup., 793; In re Miller, 281 Fed., 764, 773-774: Miller vs. Kaliwerke Aschersleben Aktien-Gesse!s. chaft, 283 Fed., 74fi, 752; Kahn vs, Garvan, 263 Fed., 909. 916; Garvan vs. Certain Shares of International A. Corp., 276 Fed., 206, 207; In re Sutherland, 21 Fed, 2d 667, 669.J Of course the vesting may be erroneous, or it may cover property which does not belong to an alien enemy. · If this case arises, then the remedy of the interested party is to give notice of },is claim to the Alien Property Custodian, and if no action is taken there-On, to bring an action in the proper court under section 9 <a) of the Trading wifh the Enemy Act, where the validity of thf' vesting order can be tested and the question of title adjudicated. Dallas S. Townse1td, Stanley Gilb&t, Juan T. Santos and Lino M, Patajo fc..r the plaintiff and appellant. Primitivo A, Bugarin and Esmeralda U, Galoy fo1· the defendant and appellee. DECISION BAtTTISTA ANGELO, J., On October 6, 1947, the Philippine Alien Property Administrator, hereinafter referred ta hS Aoministrator, issued Vesting Order No, P-394, which was amenr:led on Fe1fruary 2, and July 14, 1949, vesting in himself, among others, one-half undivided interest in the following properties: <a> five pa:i:_cels of land sit!Jate in the city of Baguio and one parc~I situate in San Clemente, Tarlac; <b> personal properties consisting of furniture and household equipments; <c> the surn of P5,156.RS representing balance of a savings account with t.he People's Bank & Trust Company, Baguio 1,'!'f1nch; (d) the sum of P1867 .50 rE-pres<'nting rents and incoJme of the lands mentioned above; and <e) the net proceeds of an insurance policy in the amount of $1,451.81. The veE:ting was made upon the claim that the one-half un<iivided interest was '.>wned by Carlos Teraoka and Marie Dolores 1'eraoka who were found to be nationals of Japan, an enemy country. After the vesting, the Administrator demanded from their gTandfather, Macario Bautista, wh'> was in possession of the aforementioned properties the delivery to him of the possession of one.. h&lf therc~f, Macario Bautista refused to comply with the demand claiming to be the sole owoier of the aforementioned propert:es having inherited them as the only surviving heir of their form~r owners who were already dead, including Carlos Teraoka and Marie Dolores. Because of such refusal, the Administrator filed an action in the Court of First Instance of Mountain Province praying for the partition of the properties and the delivery of cmeht11f t11ereof to the plaintiff. As one of the parcels involved was s11ld to one Antonio Baluga, the latter wa~ included in the complaint :u part)' defendant. The Republic of the Philippines moved to intervene as party plaintiff in view of the provision of the law to the effect that whatever property may be vested in the Administrator would be eventually transferred to the Republic, This motion was granted. mid the Republic of the Philippines adopteci as its own the comr,Jaint filed by the Administrato:i'. Defendant Macario Bautista set up as special defc>nse that he is the sole owner of the properties in question with the exception of the kit sold to his codefendant Antonio Baluga; that as such owner he has already spent a considerable amount on said proverties in the form of taxes, repairs, fines, penalties, and the like; that Muneo Teraoka was not an c-:i.emy national but a naturalized Filipino citizen; that the children of Muneo Teraoka, including Carlos and Marie Dolores, were F"ilipino citizens; that the Phi!;l>pine Alien Property Administrator cannot vest properties not enemy_ cwned, such as the properties in question and, therefore, he las no personality to bring the present action for partition, for such right pertains only to the heirs of the former owner!'\ of said propCJ'ties who are the only ones who can maintain an action for partition as co-owners thereof pro-inJiviso; and. that, assuming that Carlos and Marie Dole.res are Japanese nationals, the present action for partition is premature, since said children are still m;nors !lnd r.s such have the right to elect Philippine citizenship upon reaching the age of majority in accordance with the Philippine Constitutic•n , De~ember 31, 1954 THE LA WYERS JOURNAL 6()9 In reply to the claim that the Administrator had no authority to vest the interest of Carlos and Marie Dolores bf'cauSe they are not Japanese nationals, the Adminir.trator stated that the determination of the character of the properties vested and the nationality of their owners by the Administrator under the law is conclu!!ivc and not subjert to judicial review; that if the vesting is erronco~~· the remedy of the owners is to file a claim under Section 32, or a suit under Section 9 Ca>, of the Tr:'lding with the Enemy Act; and that the nationality of Carlos and Marie Dolores cannot be passed upon in the present action. After hearing, the court rendered judgment dismissing the 001t•plaint, the court holding in effect tha~ plaintiff failed to prove that Carlos and Marie Dolores arc Japanese nationals; that tt1a evidence in facts shows that they are Filipino citizens; and that the vesting of their interest in the property in question was errc..neous and, therefore, the vesting order issued by the plaintiff in connection with said interest is illegal and did not vest ownership thereof in the plaintiff, As to Antonio Baluga, t.he court found that he was an innocent purchaser- Whose title to the propeity cannot be reviewed. From this judgment, the Administrator and the Republic of the Philippines have appealed to the Court of Appeals. After the briefs had been admitted within the reglementary period, the parties took steps to have the case transferred to this Court upon the plea that the issues raisE:d involve purely question-s of Jaw, and this move was granted by the court. In the meantime, the Philippine Alien Property Administration was terminated by Executive Order No, 10254 of the President of the United States, efftctive June 29, 1951, and all its rights, powers, duties, and funeti:ms, as well as the properties vested by it, were transferred to the Attorney General of the United States, and so, on motion of the Attorney General of the United States, the lower court, in its order of August 13, 1951, ordered the substitution of this official in lieu of the Philippine Alien Property Administrator, Inasmuch as this case was transferred to this Court upon th~ plea that the only issues raised by the parties involve purely questions of law, and hei-ice thi? facts as found by the lower court in its decision are deemed admitted, for the purposes of the issues raised, we would quote hereunder the pi?rtinent portion of the decision wherein said facts are outlined: "In 1924, one Muneo Teraoka, also known as Charles M. Teraoka, then a Japanese subject, married a native Filipino named Antonina Bautista. Out of this wedlock six children were born, namely, Victor, Sixto, Carlos, Marie Dolores, Catalina, and Eduardo . The couple during their married life acquired all the prorerties describe<! in the complaint. On August 21 1941, Muneo Teraoka died, survived by hi.s widow Antonina Bautista de Teraoka and his six children by her, above! named. An intestate proceedings was instituted in the Court of First Instance of Baguio, as a result qf which the 1-eal properties deScribed in the complaint wHe divided between the widow Antonina Bautista on one hand, nnd the six surviving children on the other, giving to the widcw three parcels and to the six children in common another three (~ee paragraphS 5 and 6 of the original complaint.> Th~ personal 'properties enumerated in the corriplaint, as well as the cash and tlie insurance policy of Antonina Bautista were not divided or touched in the said intestate proceedinh'S. Later, or in December, 1944, Sixto Teraoka dicci single at the age of 17 without leaving any issue, while Victor Terwka was i:aken by the Japanese soldiers on suspicion of being spy and has never been heard of since thrn. He was presumably killed by the Japanese soldiers. Victor Teraokz left no issue also a!ld he. died single, at the age of about 19 years. On April 24, 1945, during the bombing of the City of :::u;: 0 b!f ~eer ~h7i:::,n C~~:~~~a o!n~ib~~:t!~~~. ~e~eni~~ ~Yau~:: and died. Antonina Bautista died instantly, while Catalina and Eduardo died later on Uie same day. After liberation and after the surrender of Japan to the American forces, Carlos Ternoka and l-iiarie Dolores Teraoka, the only living members of the ill-fated Teraoka family, these two then being minors, as they are still minors, being 19 and 16 years old, respectively, were taken by the American army tD Japan . Once in Japan the two went to stay with their grandfather, iather of Muneo Teraoka. They are still in Japan up to date living with their paternal uncle, their grandfather having died. The evidence is clear and greatly preponderant that these two brother and sister, Carlos and Marie Dolores Teraoka, did not want to go to Japan but they were powerless to resist and of too tender age to protest. They just sought their nes.rest relatives once they were landed in Japan . After liberation also, or to be more exact, ·on July_ 18, 1945, the Enemy Prop. erty Custodian of the U.S. Army took into his custody the propc1 ties described in the complaint on suspicWn that these properties wue tainted with enemy interest. Then defendant Macario Bau. tista, father of Antonina Bautista, believing that the entire Teraoka family Jiad already died, and being the nearest surviving kin or iclative of the Teraokas, claimed the said properties from the Er:emy Property Custodian. The latter, ignorant of the existence in Japan of two of the Tei:aoka children, granted t.he petitiot> o! Macario Bautista and released the said properties, Macario Bautista, then, by an :iffidavit of adjudiration, succeeded in securing the cancellation of the certificates of title of those real properties and the issuance of new transfer certificates of title in his own name. Once he had the certificates of title in his name, free of any lien or encumbrance, Macario Bautista sold one lot CLot No . 113 MM, MW covered by Transfer Certificate of Title No. T-331, in the name of Antonio Baluga, in favor of third party defendant Eulalio D. Rpsete who, in turn, Sold it to defendant Antonio Baluga, hence the said Transfer Certificate of Title No. T-331 is now in his nnme CExh. 3-Bn.luga). In October, 1946, the office of the Philir,pine Alien Property Administration was established in the Philippines. This new office assumed and took over the functions and duties of the defunct Enemy Property Custodian of the U)lited States Army. This new office Jei:;rned that, contrary to the as.. sertion of Macario Bautista that the entire Teraoka family had died already, two of the Teraoka children, Carlos and Marie Dolcres, are very much alive and are living in Japan. Then the Philippine Alien Property Administrator, on the supposition that Carlos Teraoka and Marie Dolores Tera.aka are Japanese nationals, \'ested and took title to the portion of the said properties belonging, by right of successiion, to said Carlos and Marie Dolores Te.. raoka, by virtue of Vesting Order N.o. P-394, i"\<>uerl on February 2, 1949, which was later supplemented and amrnded. The above facts have Deen conclusi\·ely established by the evidence, In fact, most of thcm are dir('ct]y admitted or not contradicted by any of the parties. Phintit'f filed this case of judicial partitiun on the theory that the vesting order issued by plaintiff himself made him co.owner of the said property in common with the defendants Ma. cario- Bautista and Antonio Baluga." It is a well-settled rule that the Congress of the United States, in time ot' war, may authorize and provide for the seizure and sequestration, through executive channels, of properties believed to be enemy-owned, if adequate pmvision be made for a return in case of mistake, <Stoehr v. Wallace, 255 U.S. 239, 65 L. ed ., 604, 612; Central Union Trust Co. v. Garvan, 254 U.S. 554, 65 I.. ed., 403. J Congress did this with the approval of the Trading with the Enemy Act, which was originally enacted on October 6, 1917, authorizing the President of the United States, or the officer or agency that may be designated by him as his representative, to determine the enemy ownership of the properties tD be seized. 'l'he agency so designated was the Alien Property Custodian. Sec. tion 7 (c) of said Act, as amended, referring more specifically to the scope of the authority granted to the President, provides as follows: "If the President shall so require any money or other property x x x x owning or belonging to, or held for, by or on acc:lunt of, or on behalf of, r.r for t.hc. benefit Df, an enemy x x x x which the ·President after inv<!stigation shall determine is so owni11g or so belonging or is so held, shall be ~om·eyed, transferred, assigned, delivered, or paid to the Alien Property Custodia~, or tho same may be seized by the Alfrn Property Custodian." <Under. lining supplic:i> On July 3, 1946, the Congress of the United States approted the Philippine Property Act of 1946 providing in section 3 thereof 610 THE LAWYERS JOURNAL Decembet· 31, 1954 that the Trading with the Enemy Act, as amended, shall continue in force in the Philippines after July 4, 1946, and adding that "all pc·wers and authority conferred 11pon the President of the United States or the Alien Property Custodian by the terms of said Trading with the Enemy Act, as amended, with respect to the Philippines shall continue thereafter to be exercised by the President of the United States or such other officer or agency ns he may designate," Inasmuch as the Philippine Property Act of l !l4G, was approved or,Jy .one day before the granting of Philippine independence, the immediate designation of the Alien Property Custodian of the United States, who was already thc designee of foe President, to continue acting thereafter, was considered most expcdim1t to avoid disrupting the continuity of the vesting program <Executive Order No. 9747>. This was done without prejudice however of establishing an independent agency which may take charge of the administi ation and control of enemy pl'Operties in the Philii)pines. So <'n October 14, 1946, the Philippine Alien Property Administration was formally established having as head an Administrator to be appointed by the President of the United States, and to this' Administrator were transfened the 'duties and functions of the Custodian with respect to enemy properties located in the Philippines (Executive Orders Nos. 9789 i\nd 9818). During the pendency of the present action, the Philippine Alien Property Administration was in turn terminated effective June 29, 1951 by Executive Order No. 10254 of the President of the United Stat.es, and the functions and duties of the Phili!Jpine Alien P1·operty Administrator were transferred to the Attorney General of the United States. It wa"> in the exercise of the powers vested in him by the Tradjng with the Enemy Act, the Philippine Property Act of 1946, and Executiv~ Order No. 9818 that the Philippine Alien Property Administrato1· vested in himself the pr.operties in question to be held, administered, or otherwise dealt with in the interest and for the benefit of the United States. Vesting Order No. P-394, which was issued in vesting said properties, recites that, after proper investigation, the Administrator had found that Carlos and Marie Dolores Teraoka were nationals of Japan and that the properties were owned by ~aid nations. It is no\v contended by the Philippine Alien Property Administrator that, as the immediate effect of the vesting order, from the time the properties were vested, title to them passed to the United State.:; as "compktely as if by conveyance, transfer or assignment." (Commercial Trust Company v. Miller, 262, U.S. 51, 57, 67 L. ed., 858, 861.) Being the owner, he contends, the Administrator may cbtain possession of the properties vested, or "may either seize said properties or proceed judicially to compel compliance with his demand for possession." But, in the present case,- he avers -although the Administrator could have seized the properties vested by him, under Section 7<el of the Trading with the Enemy Act, he preferred to fil" suit because "it was more orderly and decent to obtain possession by the aid of the court than to seize them by Yiolence and the strong hand," Hence, the Administrator preferred to institute the present · action under Section 3 of the Philippine Property Act of 1946 the pertinent portion of whir.h reads: "x x x x Pr.ovided further, that the courts of first instance of the Republic of the Philippines are hereby given jurisdiction to make and enter all such rules as to notice or otherwise, and all such orders and deerees, and to issue such process as may be necessary and proper in the prrmises to enforce any orders, rules, and regulations issued by the Pres· ident of the United States, the Alien Property Custodian, or such officer or agency designate<! by the President of the United States pursuant to the Trading with the Enemy Act, as amend. eel, with such right of appeal therefrom as may be provided by law." But, can the Philippine Alien Property Administrator now invoke the Philippine Property Act of 1946 to enforce his vesting order or to compel compliance with his ·demand for possession .of the properties vested, in spite of the proclamation of our independ. ence on July 4, 1946? Does that Act have extraterritorial effect in the Philippines after Philippine independence? This is the issue n"w posed by counsel for the defendants who contends that such an extension of authority cannot be entertained as it would be in nolation of our Constitution, especially section 2, Article VIII, which gh,es to the Supreme Court jurisdiction to review, revise, reverse, modify, or affirm on appeal final judgments and decrees of infr•rior courts in all cases involving the constitutionality or validity of any treaty, hw, ordinance, <>xeeutive order, or regulation. Counr:el contends that, under this all-Pmbracing judicial power that Act cannot be given such effect in this jurisdiction that would deprive the Supreme Court of. its power to look into the validity of the vesting order issued by the plaintiff. Fortun=i.tely, thr issue !JOSed by counsel is not new, as the same has already been passed upon by this Court in a similar case. Thus, in the ease of Herbert Brownell, Jr. v. Sun Life Assurance Company of Canada, G. R. No. L-3751, J une 22, 1%4, this Court held: "It is evident, therefore, lhnt the coni;r.nt of the Philippine Government to the application of the Philippine Property Act of 1946 to the Philippines after independence was given, Mt only by the Executive Department of the Philippine Government, but also by the Congress, which enacted the laws that would implement or carry out the beJlefits accruing from the operation of the United Stat~s law." And in another portion of t.he deci~ion, we also said: "In the case at bar, our ratification of or cpncurrence to the agreement for the extension of the Philippin.:i P1·operty Act of 1946 is clearly implied from the acts of tht- President of the Philippines and of the Secretary of Foreign Affairs, a~ well as by the enactment of He!}ublic Acts Nos. 7, 8, and 477." Tt is therefore cleat· that the Philippine Alien Property Administl'ator can now invoke section 3 of the Philippine Property Act of 1946 in 01·der to secure the issuance of any peremptory orllcr from any court of first instance. in this jurisdiction to enforce a vesting order to enable said Administrat.oi to obtain possession of the properties vested. But, again, the issue that arises is: Is the actbn tak"!n bjr the Administrator, by its nature, substance, and prayer, one that comes under said section 3 of the PhilipJline Property Act of 1946? If it is, then our courts can only pass t:pon the identity of the property and the question of the possession but cannot look into the validity of the vesting- order, nor entertain any adverse claim which would require the determination of ownership of the property. CSilesian American Corporation v. Markham 156 Fed. Sup., 7!l3; Jn re Miller, 281 Fed., 764; 773774; Miller v. Kaliwerkf" Aschersleben Aktien-Gesselschaft, 283 Fed., 746, 752; Kahn v. Garvan, 263 Fed., 909, 916; Garvan v. Certain Shares ::if International A. Corp. 276 Fed., 20G, 207; In re Sutherland, 21 Fed. 2d 667, 669.) If otherwise, then the court can look into the ·ownership of the property and make the corresponding adjuclicati<'n. Of course, the vesting may be erroneous, or it may cover property which does not belong to an alien enemy. If this case arises, then t11c remedy of the intereste9- party is to give notice of his claim to the Alien Property Custodian, and if no action is tak~n thereon, to bring an action in the proper court under Section 9 (a) of the Trading with the Enemy Act, where the validity of the vesting order can be tested and the question title adjudicated. According to the plaintiff, this is the only course now C'pc>n to the defendants tn· this case. After a careful examination of the complaint filed in this case, we are inclined to uphold the contention of counsel for the defendants to the effect that, "The present action is not one, and could not h<; one, under Sedion 3 of the Philippine Property Act of 1946 viewed from the standpoint of its form, substance and prayer. The present action is clearly an action for partition of real estate, which incidentaliy includes personal properties, under Rule 71 of !he Rules of Court." This can be gleaned from the nature both t f the interest involved and the relief prayed for in the complaint. Jt should be noted that the complaint prays for partition of the propetties and not merely for delivery of th~ir possessic.n. Apparently, this is an action contemplated in Rule 71 wherein the court, before proceeding with the partition, ha,s to pass upon the r.'.ghts or the ownership of the parties interested in the property <Section 2). In an action for partition the determination of ownerDeeember 31, Hlti4 · THg LAWYERS JOURNAL 611 ship is indispensable to make proper adjudication. In this particular case, this acquires added force considering that the titles of the properties appear issued in the name of the defendants, 4nd the pl:tintiff contends that they belong to enemy ali12ns. By filing this action of partition in the court a quo, the Philippine Alien Property Adminishator has submitted to its jurisdiCtion and put in issue the legality of his vesting order. He canMt therefore now dispute this power. It is true that the complaint does not sr•ecifically allege that the Administrator in invoking the authority of the court under section 3 of the Philippine Property Act of 1946 and that the failure to make mention of that fact should Mt militate against the stand of the Administrator. But while we ogree with this contention, the fact hnwever remains that the very l'.verments of the complaint sht'w that the real purpose of th~ action .is not the recovery of possession but the partition of the properties. This makes this case come, as already said, under Rule 71 of our Rules of Court. We are, therefore, persuaded to conclude, and so hold, that the lower court did not err in passing upon the nationality of Carlos and Marie Dolores Teraoka, or in determining the validity of the vesting order issued by the Philippine Alien Property Administrator, wl;erefore, we affirm the decision ii.ppealed from, without pronouncement as to costs. · Paras, C. J., Pablo, Bengzon, Padilla, Mont(!mayor, Alez. Reyes, Jugo, Concepcion, and J. B. L. Reyes, J.J., concur. XIII Herbert Brownell, Jr., as Attorney General of the United States, Petitioner and Appell.ee, vs. Sun L~fe Al!surance Compa'ny of C'a7wda., Re8pondertt and Appellant, G. R. No. L.5731, June 22, 1954. Labrador, J . · 1. INTERNATIONAL LAW; EXTRATERRITORIAL EFFECT OF FOREIGN LAW; NECESSITY OF CONSENT OF COUNTRY IN WHICH IT IS SOUGHT TO BE ENFORCED. -· A foreign law ma¥ have extraterritorial effect in a country other than the country of origin, provided the former, in which it is sought to be made operative, gives its consent thereto. 2. ID.; ID.; ID.; C01'JSENT NEED NOT BE EXPRESS. - The consent of a State to the operation of a foreign law within its territory does not need to be express; it is enough ihat said consent be implied from its conduct or from that of :ts authorized officers. · ID.; ID.; ID.; ID.; PHILIPPINE PROPERTY ACT OF Hi46; BASIS OF ITS APPLICATION IN THE PHILIPPINES. - The operation of the Philippine Property Act of 1946 in the Philippines is not derived from unilateral aCt of the Unit~d States of Congress, which made it expl'essly applicable, or from thE' saving provision coritained Tn thE' proclamation of independence. It is well-settled in the United States that its laws have n,o extraterritorial effect. 'fl1e application of said law in the Philippines is based concurrently on said act (Philippine Pro'p. erty I! ~t of 1946> and on the tacit consent thereto and the conduct of the Philippine Gov~rnment itself in receiving ~he benefits of its provisions. Rowland F. Kirks, Stanley Gilbert, Juan T. Santos and Lnw M. Patajo for the petitioner and appellee: Puldna. Ponr~ Enril11 and Contreras for the respondent ami 11ppellant. DECISION LABRADOR,J.: This is a petition instituted in the COurt of First Instance of Manila under the provisiolis of the Philippine Property Act of the United States against the Sun Life Assurance Company of Canada, b compel the latter to comply with the demand Df the former ~1• pay him the sum of P310.10, which represent& one-halt ot the proceeds of an endowment policy 'No. 757199) which matured on August 20, 1946, and which is payable to one Naogiro Aihara, a Japanese national. Under the policy Aihara and his wile, Filomena Gayapan, were insured jointly for the sum of Pl,000, and upon Ifs maturity the proceeds thereof were payable to said insured, share and share alike, or P310.10 each. The defenses set up in the court of origin arc: (1) that the immunities prov.ided in Section 5lbl C2) of the Trading with the Enemy Act o! the United States are of doubtful application in the Philippine3, and have never been ndopted by any law of the Philippines .as applicable here or obliga.. tory on the local courts; (2) that the defendant is a trusree of the fuhd and is under a legal obligation to see to it that it is paid to the person or persons entitled thereto. and unless the oetitioner executes a suitable discharge and an adequate guaranty to indemni. fy and keep it free and harmless from any further liab11ity under tt.e policy, it ma,y not be compelled to make the payment demanded. The Court of First Instance of Mar.Ha having approved and grante-:! the petition, the respondent has appealed to this Court, contending that the court of origin erred in holding that the Trading with the Enemy Act of the United States is binding upon the inhabitar,ts of this country, notwithstanding the attainment of com ])lete independence on July 4, 1941), and in ordering the payment prayed for. On July 3, 1946, the Congress of the United States passed Fublic Law 485-79th Congresa. known as the Philippine Property 4ct of 1946. Section 3 thereof provides that "The Trading With the Enemy Act of October 6, 1917 <40 Stat. 411), as' amended, shall continue i~ foY:ce in the PhilippinP-s after July 4, 1946, xx x.~ To implemen't the provisions of the aet, the President of the Un'.ted States on July 3, 1946, promulgated Executive Order No. 9747, "continuing the function3 of the Alien Prop~rty Cu~todian anti t.he D('partment of the Treasu'ry in th~ Philippines." Prior to and preparatory · to the approval of s<tid Philippine Property Act of 1946, an agreernent was entered into between President Manuel Roxas of the Commonwealth antl U, S, Commissioner Paul V. McNutt whereby title to enemy agricultural lands and other prcPerties was to be conveyed by the United States to the Pi1ihppine1 in order to hPlp t11e rehabilitation of the lattel', but that in order to avoid c-.omple'C lf'g!!l pMblems m relatirm to said enemy prop. crties, the Alien Property Custodian of the United State! was to continue operations in the Philippines even after the latter's in. dtpen'.ience. that h~ may settle all claims that may exist or arise against the above-mentioned enemy properties, in accord'.lnce with the Trading with the Enemy Act of the United States. (Report cf the Committ('c on Insular Affairs No. 2296 and Senate Report No. 1578 from the Committee on Territories and Insular Affairs, to accompany S. 234G, accompanying H. R. 6801, 79th Congri>Es, 2nd Session.) 'fhis. purpos~ of conveying enemy properties to the Philippines after ~u claims against them ~hall have been settled is expressly embodied in the Philippine Property Act of 1946. Sec. 8 , ThE' Trading With the EMmy Act of Octobe!" 6 1917 l40 Stat. 411.•, as amended, shall continue in force in thP. Philippines after July 4, 1946, and all powers and author. ity conferred upon the Presidt'nt of the United States or the Alien Property Custodiart by !he terms of the said T!'!l.ding with the Enemy Act, as amended, with rt'spect to the Philippines, shall continue thereafter to be exercised by the Pres.. idP.nt of the UnitC'd States, .:ir such officer .or agency as he may designate; Provided, That a.11 property vested in or tran~ ferred to the President of the United States, the Alien Property Custodian, or any such officer or agency as the Prei;.. ident of the United States me.y designate under the Trading With the Enemy Act, as amC'nded, which was located in the PhHippines at the time of such vesting, or the proceeds there. or, and which s11all remain aftcz the satisfactinn of any claim payable under the Trariing with the Enemy Act, aa amended, and after the payment of such costs and expenses of adminis.. tration as mny by Jaw be charged against such property or proceeds, shall be transferred hy the Preeident of th.<? Unit':!d States to the Republic of the Philippines: Provided further. That such property, or proceeds thereof, may be transferred 612 THE LAWYERS JOURNAL Decembei: 31, 1954 by the Presid€nt of the United States to the Republic of the Philippines upon indemnification acceptable to the President of the United States by the RC"public of the Philippines for such claims, cests, and expense~ of administration a.; may by law be charged against such property or proceeds thereof before final adjudication of such claims, costs and expenses of administration: Provided further, that lhe courts of first instance of the Republic of the Philippines arc hereby given jurisdiction to make and enter all such rules ns to notice or otherwise, a11d all such orders and decrees, and to issue such process as may be neccssa1·y and proper in the premises to enfone any orders, rules, and regulations issued by the President of foe United States, the Alien Property Custodian, or such officer or agency designated by the President of the United States pursvnnt to the Trading With the Enemy Act, as amended, with such right of appeal therefrom as may be provided by law: And provided further, That any suit authorized under the Trading With the Enemy Act, as amended, with respect to property ''ested in or tra~sferred to the President of the United States, the Alien Property Custodiiln, or any officer or agency designated by the President of the United States hereunder, which at the time of such vesting or transfer was located within t11c Philippines, shall after July 4, 1946, be brought, in the approprfote comt of first i_nstance of the Republic o( the Philipjlines, against the officer or agency hereunder designated by the President of the United States with right of appeal therefrom as may be provided by law. In any litigation authorized under this section, the orticer or administrative head of th€ agency designated hereunder may appear personally, or through attorneys appointed by him, witho1;t regard to the requirements of law other than this section. And w~en the proclamation of the independence of the Philippines by President Truman was made, s::i.id independence was granted "in accordnnc<' with and subject to the reservations provided in the apJ·licable statutes of the United States." The enforcement of the Trading With the Enemy Act of the United States was contem.. plated to. be made applicable nfter independence, within the meaning of the reservatibns. On the part of the Philippines, conformity to the enactment or the Philippine Property Act of 1946 of the United States was announced by President Manncl Roxas in a joint statement signed by him and by Commissioner McNutt. Ambassador Romulo also formally expressed the conformity of the Philippine Government to the approval of said act to the American Senate prior to 1ts approval. And after the grant of independence, the Congress of the Philippines approved Republic Act No. 8, entitled AN ACT TO AUTHORIZE THE PRESIDENT OF THE PHILIPPINES TO ENTER INTO SUCH CONTRACTS OR UNDERTAKINGS AS MAY BE NECESSARY TO EFFE(,TUATE THE TRANSFER TO THE REPUBLIC OF THE PHILIPPINES UNDER THE PHILIPPINE PROPERTY ACT OF NINETEEN HUNDRED AND FORTY . SIX OF ANY PROPERTY OR PROPERTY RIGHT OR THE PROCEEDS THEREOF AUTHORIZED TO BE TRANSFERRED UNDER SAID ACT; PROVIDING FOR THE ADMINISTRATION AND DISPOSITION OF SUCH PROPERTIES ONCE RECEIVED; AND APPROPRIATING THE NECESSARY FUNDS THEREFOR. The Congress of the Philippines also approved Republic Act No. 7, which established a Foreign Funds Control Office. After the npproval of the Philippine Property Act of 1946 of the United States, tlie Philippine Government also formally expressed, through the SEcretary of Foreign Affairs, conformity thereto. <See letters of SE:cretary dated August 22, 1946, and June 3, 1947 .) The Congress cf the Philippines has also appro•1rd Republic Act No, 477, which povides for the administration and disposition of p!'operti"!S which tave been or may hereafter be trans(erred to the Republic of the I,hilippines in accordance with the Philippine Property A'.'t. of 1!:146 of the United States. It is evidi:int, therefore, that the consent of the Philippine Govunmer,t to the application of the Philippine Property Act of 1946 to the Philippines after independence was given, not only hy the Executive Department of the Philippine Government, but also by the Congress, which en~cted the }awe that 'vould implement or carry out the benefits accruing from tht! orieration of the United States fo.w. The rc~pondent-appellant, however, contends that the opera. hons of the law alter independence could not have actun!ly takl!n, Cir may not take place, becaus~ bctl1 Republic Act No. 8 and Re~ publie Act No. 477 do not contain any specific provision whereby the Philippine Property Act of 1946 .or its provisions is made applicable to the Philippines. It is also contended that in the nbsencci of such express provi~ion in any of the Jaws passed by the 1'hilippine Co11gress, said Philippin-:i: Property Act of HM6 do.<?s not form part of our laws and is not hinding upon the courts and in~ l1abitants of the country. There is no question that a foreign law may have extratenitorial effect in a country ot.her than the country of origin, prnvided the latter, in which it is sought to bC' made operative, gives its consl.'nt thereto. This principle is supported by t1nquestionecl authotity, The jurisdiction of the nation within its territory is necessarily exclusive and absolute. It is susceptible o( no limitation not imposed by itself. Any restriction upon it, deriving validity from on ext~rnal source, would imply a diminution of its sovereignty to the extent of the restriction, and nn investment of that sovereignty to the same extent in that power which would impose such reJtriction. All exce11tions, therefore, to the full :i.nd complde pvwer of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may ·be either express or implied. <Philippine Political • Law by Sinco, pp. 27-28, citing Chief Justice Marshall's statement in the Exchange, 7 Cranch 116) In the course of his dissenting opinion in the case of S.S. Lotus, decided by the Pe1·manent Court of International J ustice, John Bassett Moore said; 1. It is an admitted principle of international b.w that a nation possesses and exercises within its own territory an absolute and exclusive jurisdiciton, and that any exception to this right m>ist be traced to the consent of the nation, either express or implied <Schooner Exchange v. McFadden U812>, 7 Cr.r.nch 116, 136). The benefit of this principle equally enurcs to all independent and sovereign States, and is atteiided with a corresponding responsibility for what take;; place within the national territory. <Digest of Intern:itional Law, by Hackworth, Vol. II, pp. 1-2) The above principle is not clc1iied by respDndent appellant. Hut its argument on this appeal is that while the acts enacted by the Philippine Congress impliedly accept the benefits of the operation of th~ Uunited States Jaw <Philippine Property Act of 1916), no provision in the said acts of the Phi1irpine Congrc:>s makes said United States law expressly spplicablc. In answer to this <'Ontention, it must be stated· tha~ the consent of a State to the operation of a foreign law within its territory does not need to he express; it is enough that .said consent be implied from its con· duct or from that of its authorized officers. 515. No 'Yule of International Law t3:ists which prescribes a necessa1·y foi·m of ratification. Ratification can, t~erefore, be givc•1 tacitly as well as expressly. Tacit ratification takes place when a State begins lhe execution of a. treaty witl1out expressly ratifying it. It is usual for ratification to take the form of a document duly signed by the Heads of the States concerned, and their Secrotaries for Foreign Affairs. It is usual to draft as many documents as there a.re parties to the Convention, and to exchange these docum1::ntR between the parties. Occasionally the whole of the treaty is recited verbatim in the i·atifying documents, but sometimes Only the title, preamble, and date of the treaty, and the names of the Rignatory December :n, 1954 THE LA WYERS JOURNAL 613 representatives are cited. As ratification is only the confirmation of an already existing treaty, the essential requirement in a ratifying document is mt>rely that it should ref<.>r clearly and unmistakc.bly to the treaty to be ratified. The citation of title, preamble, date, and names of the representatives is, therefore, quite sufficient to satisfy that requirement. <Oppenheim, pp. 818-819; undcrncoring ours.) International law does not require that agreement.s between nations must be concluded ln any particular form or style. The law fJf nations is much more interested in the faithful performance of international obligations than in prescribing procedural requirements <Treaties and Executive Agreements, by Myres S. McDougal and Asher Lans, Yale Law Journal, Vol. 54, pp. 318-319> In the case at bar, our ratification of or concurrence to the agreement for the extension of the Philippine Property Act of 1946 is clearly implied from the acts of the President of the P!1ilippines and of the Secretary of Foreign Affairs, as well as by the enactmr.nt of Republic Acts Nos. 7, S, and 447. We must emphasize the fact that the operation of the Philippine Property Act .of 1946 in the Philippines is not derhred from the unilateral act of the United States Congress, which' made it expressly applicable, or from the saving provision contained in the 1-roclamntion of independence. It is well-settled in the Unite.cl States that its Jaws have no extraterritorial effect. The applicat.ion of said law in the Philippines is based concurrently on S'lid . o.ct <Philippine Property Act of 1946) and on the tacit cons~nt thereto and the conduct of the Philippine Gqvernmcnt itsei! in receiving the benefits of its provisiol'ls. It is also claimed by the respondent.appellant that the trial court erred in ordering it to p:iy the petitioner the amo'Jnt demanded, witho:iut the exP.cution by the petitioner of :i. der.d of discharge and indl!mnity for its fl!'otection. The Trading With the Enemy Act of the United States, the application of which was extended to the Philippines by mutual a~eement of the two Gov. ernments, contain~ an exp1'($9 provision to the effect that delivery of property or interest therein. made lo or for the account of the United States in pursuance of the nrovision of the law, shall be considered as a full acquittance and discharge for purposes of the obligation of the person making the delivC!ry or payment. <Sec. hon 5Cb) (2), Trading With the Enemy A~t.l · Thi!. express proYJsion of the United States law savf?s the respondent.appellant from any further liability for the amount ordered to be paid to the petitioner, and fully protects it from any further claim with respect thereto. The resquest of the respondent.appellant that a security be granted it for the payment to be made under the law is, therefore, unnecesEary, because the judgment rendered in thi-; case is sufficient to prove such acquittance and discharge. The decision appealed from should be, as it is herrby affirmed, with costs against the raspondent.appellant. Paras, C. J., Pablo, Bengzon, Padilla, Montem,a1101', A. Reyes, ~'uno. Boilli. <:fo An_qrln. and Concepcfrm. J.J .. concur. XIV Emilia.no Morabe., Acting Chief, Wage Administration Se'fvice, Ptititioner a11d Appellant, vs. William Brown, doing business under the nnme and style of Clover Theater, Respondent and Appellee,, No, L-6018, May 31, 1954, Labrador, J. l. MANDAMUS; MANDATORY INJUNCTION IS ALSO MANDAMUS; COURTS OF FIHST INSTANCE MAY GRANT WRIT AFTER ACT HAS BEEN CARRIED OUT. - Where the action seeks the performance of a legal duty, such as the reinstatement of an employee who has been unlawfully dis.. missed, the action is one of mandamus and not injunction. The writ known as preliminary mandatory injunction is also a mandamus, though merely provisional in character, and may be granted by the Court of First Instance after the act complained of has been carried out. 2. ID.; ID.; EMPLOYEE UNLAWFULLY DISMISSED IS EN. TITLED TO REINSTATEMENT; COURTS MAY COMPEL EMPLOYER TO ADMIT HIM BACK. - Where an employee was unlawfully deprived of !11s right or privilege to continue in the se1·vice of his employer because his dismissal was unlawful, it is within the competence of courts to compel the employer to admit him back to his service. Jimenez B. Buendia and W. Ramcap La!JU.mbay for the respondent and appellee. Assistant Solicitor General Francisco Ca'freon and Solicitor Ramon L. A vmu:eiia for the petitioner and appellant. DECISION J,ABRADQR, J.: This is an appeal from a judgment of the Court of First Instance of Manila denying a petition of thr chief of the Wage Administration Servic~ for the reinstatement of Pablo S. Afuang by the respondent William Brown. The original petition filed in the Court of First Instance alleg-es that the respondent had dismissed Pablo S. Afuang because i11 an investigation conducted by thC' petitioner of charges against the respondent that the latter ipid his employees beyond the time fixed in Republic Act No. 602, th<: said Afuang was one of the complainant.s ; that the respondent Jischarge the said employee in violation of Section 13 of said Act . The petitioner, therefore, prayed that the respondent be ordered to reinstate Pablo S. Afuang, and that a writ of preliminary man. ds.tory mjunction issue for his reinstatement. The court issued a writ of preliminary mandatory injunction, Thereafter, the res.. pendent presented a petition asking for the dismissal of the pe.. tition on the ground that Pablo S. Afuang had presented a letter a'1king excuse or apology from the respondent for having taken l!is case to court. This motion ti"' dismiss was. however, not acted upon, and the case was heard and the parties presented their c:ddence. On May 2, 1952, the Court of First Instance rendered judgment finding that the dismissal from the service of Pablo S. Afuang is unlawful and violates Section 13 of the Minimum Wage I.aw. because the fact that he testified at the investigatfon is not a valid ground for his dismissal from the service. The court, however, refused to grant an order for the reinstatement of said Pa~lo ~. Afuang on the grCund that this remedy, which it considers ai:: an injunctlon, is available only against acts about to be committed or actually being committed, and not against past acts; that injunction is. preventive in nature only; and that as the law has already been violated, the remedy now available .:::1 for the prosecution of thC" employer for the violation of the Minimum Wage Law, and not for the rcinst:i.tl.'ment of Pablo S. Afuang. It, therefore, dismissed fhP. action, as well as the petition for the writ of preliminary mandato1·y injunction, and that which was therefore granted was dissolve<i. Against this judgment an appei.I has been prosecuted to this Court. The only assignment of error is that t.he lower court erred in not ordering the respondent to reir.state Pablo S. Afuang in the service. It is evident that the cou!'t a quo erred in considering that a mandatory injunction is preventive in nature, and may not be p.-t"anted by the Court of First Instance once the act complained of J-:as been carl"it!d out, The action of the petitioner is not an action cf injunction but one of mandamus; bec:mi::e it seeks the performance of a legal duty, the reinstatement of Pablo S. Afuang. The writ known as prclimina1·y mandatory injunction is also a mandamus, though merely provisional in e.."ltaracter. In the case at hr, Pablo S. Afuang was entitled to continue in the service of 1·espondent, OOcat.:SP his act is exptei;sly prov.ided to be no ground or reason for an employee's dismissal. Section 13 of Republic Act No. 602 states that "it shall be unlawful for any person to discharge or in any other manner to discriminate against any employee because such employee has filed any complaint or instituted er caused to be instituted any proceeding under or related to this 614 THE LAWYERS JOURNAL Decembel' 31, 1951 Act, xx x." Pablo S. Afuang was, therefore, unlawfully deprived of his right or privilege bl continue it_ the service of the respondent, Lecause his dismissal was unlawful or illegaJ. Having been de11rived of such right or privilege, it. is within the competence of courts to compel the respondent to admit him back to hu, service In the casP. of Manila Electric Co. vs. Del Rosario and Jose, 22 Phil. 433, the lower ::ourt ordered the Manila Electric Co. to furnish electric current to Jose, the electric company having cut the current to Jose's house because it suspected him of stealing dectricity by the use of a jumper. This Court held that the action was not one of injunction but of mandamus, a!'l it compellP.d the clioctric conipany to furnish Jose with electric service. In the ca!\C." at bar, the court can also order th£' respondent to reinstate Pahlo R Afuang. Were we to hold that Afuang may not be reinstated because he had already been dismissed, there would not be any remedy against the injustice done hint, or for him to return to the position or employn1l"nt from which he was unlawfully discharged. This remedy Cof orderin_i;r rl"instatementl has been granted In parallel situations by the Court of Industrial Relations "'-ith our appro\'al, when laborers h!n-C been illegally separated by their employers without legal or just cause. This remedy has also been granted in similar cases in the United States, from which jurisdiction the Minimum Wage Lt1w (Ir Republic Act No. 602 has been taken. CWalling, t>tc. vs. O'Grady, f't al, No. 2140, Nov· 3, 1943 U.S. District Court, Southern District of New York; 3WH Case 781.) The Judgment appealed from is hereby reversed, and the :respondent William Brown is hereby ordered to reinstate Pablo S. · Afuang to the positio!l he held prior to his dismissal. Without costs. Paras. C. J .. Pablo, Be11gzon, Montemayor, Reyes, Jugo, Bau· tirta Angelo, and Concepcion, J.J., concur. Mr. Justice P11dillri tciok nr part. xv Tfie People of . tlze Philippines, Plaintiff and Appellant, vs. Jesus Banrmlno, Filemon Jubahib, Francisco Lovsno and Tito Es· ta.ca, Defendants and Appellees, No. L-5610, February 17, 1954, LabradM, J. RAPE; JURISDICTION OF COURT OF FIRST INSTANCE; EFFECT OF CHANGE IN THE ALLEGATION AS TO THE MANNER OF COMMITTING THE CRIME; DOUBLE JEOPARDY BARS APPEAL. - The right and power of the Court of First Instance to try the ace.used for the crime of rape attaches upon the filing of the complaint, and n change in th'? allegations thereof as to the manner of committing the crime should not operate to divest the court of the jurisdiction it has aiready acquired. While it is an error for the trial . court to dismiss the case for lack of juris.. diction, the Fiscal's appe!!l from the order of disn1issal can not prosper because the accu~ed would be placed in douOle jeopardy. Assistnnt Solicitor General Guillermo E. Torres and Solicitor Jn'e G. Bautista for the plaintiff and appellant. Agapito Hontanosas for the • Jefondants and appell&es. DECISION LABRADOR, J.: The above.entitled case was begun in the justice of the peace court of Tagbilaran, Bohol, upon complaint of Abundia Palbnn. mother of the offended party, Hosita Pnlbsn, a minor. The cdm· 11laint alleges that the accused "by means of force and intimidation succeeded in having sexual intercourse with one Rosita Pal~ tan, x x x." When the case reached the court of first instance, the provincial fiscal filed an information for rape, alleging that Hosita Palban is "a minor anJ demented girl", and that the cie.. fcndants-appellees "successively had sexual intercourse with her by means of force and again&t the will of said Rosita Palban,'' :-rnd as a result of which she suffered less serious physical injuries in her genitalia. In the Court of First Instance, with Hon. Hipolito Alo as presiding judge, the proceedings and trial were interrupted by failure of some of the witnesses to appear, and in the course of the hearing of a motion for the arrest of the absent witnesses, the father and the mother of U:e t'ffended party, a motion was presented by counsel !or the defense to quash the information on the ground that the court lacks jurisdiction to try the case. As g'J'Ound for this motion, it was argued that while the coruplRint f:Ied by the mother of the offended party alleges that the crime was committed through the use of force and intimidation, no such allegation exists in the informati.,n filed by the provincial fiscal, and in lieu thereof allegation is made that the offended party is a minor and demented girl. A motion to the same e.ffed t-ad been previously denied in the earlier part of the proceedings by Judge Segundo Apostol, who had previously presided over the court that was trying the case. Judge Alo granted the motion to quash, ~fating that there wa3 a difference between the complaint and the information insofar as the manner in which the crime of rape was committ~d, and that although the information alleges also the use c,f force, the Fiscal admitted during the trial that he had no evi· clence to prove it. His lionor, reasoning that the main basis of the charge contained in the information is the offended party's insanity, while thP. complaint, that of intimidation and force, so that the complaint alleges one way of committing the crime while the information charges another, held that as the allegation of frrce set forth in the information was not alleged in the complaint, 1 he: proceedings were not !nitiated by the person called upon by Article 344 of the Revised Penal Code to file the complaint, and in violation of the rule enunciated in the case of People vs. Oso, ti2 Phil. 271. The Fiscal has appealed against thP order of dismiss:i.I, claiming that the court had jurisdiction to try the case and that the lower court erred in applying the doctrine laid down in the case of People vs. Oso. The accused-appellecs try to justify the order o::' dismissal, arguing that cv\ln if the lower court had erred in dismissing the case for lack of jurisdiction, they have the right to invoke the defense of double jeopardy, and this would be a bar to the prosecution of the appeal. We find that His Honor did not ·correctly apply our ruling in the case of People vs. Oso. In that case the complaint filed was for forcible abduction, while the information filed by the Fiscal was for rape. Inasmuch as the crime of rape is different from the crime of forciblo abduction alleged in the complaint, said C ·)mplaint could n0t serve as a b.1sis for the court to acquire juriEdiction over the crime actually committed, rape. In the case at bar, however, the complaint wns for rape, and this gave the court jurisdiction to try the case. The power or jurisJiction of the court is not. over the crime of rape when committed on a minor and demented girl, but over rape, irrespective of the manner in which the samf:: may have been committed. It must be borne in mind that complaints are prepared in municipalities, in most caseS' without the advice or help of com11dent counsel. When the case reaches the court of first instance, th(' Fiscal usually conducts another investigation, and thereafter files the information which the results thereof justify. The right :md power of the court to try the accused for the crime of rape cttaches upon the filing of the complaint, and a change in the allegations thereof 11.S to the manner of commit.ting the crime should uot operate to divest the court of jurisdiction it has already acquired. The right or power to try the case should be distinguished from the right of the accused to r:emand an acquittal unless it is sl·own that he has committed the offense charged in the information 'ven if he be found guilty of another .offense; in the latter cr.se, however, even if the court has no right to find the accused guilty because the crime alleged is different from that proved, 1t cannot be stated that the court has no jurisdiction over the case. \Ve are, therefore, constrained to hold that His Honor C1JmDecember Sl, 1954 THE LA WYERS JOURNAL 616 mitted an error in holding that the court had no jurisdiction to by the crime charged in the information, simply because it charges the accused with having committed the crime on a demented girl, i!lstead of through the use of force and intimidatiDn. However, "'" find the daim of the dcfendants-appellees that the appeal can not prosper because it put~ tham in double jeopardy, must be sustained. Under Section 2, Rule 118 of the Rules of Court, the Feople of the Philippines can uot appeal if the accused or defendant is placed thereby in double jeopardy. As the court below had jurisdiction to try the case upon the filing of the complaint by the mother of the offended party, the defendants-appcllees would be placed in double jeopardy if the appeal is allowed. Wherefore, t.he appeal is hert>by dismissed, with costs de of1c10. Paras, C. J ., Bengzou, Padilla, ll!ontcmauor, Jugo and B(lutisl" A11gelo. J.J., concur. Pablo, J.. took no part. XVI Dfrmisia Cafiavcral and R1tfino Bautista, Petitioners, vs. Th e Honorable Judge. Demetria C. Encarnacion of the Court ·of First Instance of Manila (Branch / ), Serenidad V. Surio and Maximo lltllacorta, Respondents, G.R. No. L-6205, September 28, 1954, Concepcion, J. COURT OF FIRST INSTANCE; JURISDICTION OVER CASES APPEALED FROM INFERIOR COURTS. - Altho•:gh the Court of First Instance bad no appellate jurisdiction to decide the ejectment case in question on the merits, inasmuch as the municipal court had no original jurisdiction over said case, in view of the questior. of title to real property upon which the right of possession involved therein was dependent <Teodoro Y!!. Balatbat, L-6314, January 22, Hl54), said court of first instar.ce had original jurisdiction to pass upon such iss·Je, no objection to the exercise of such jurisdiction having been interposed J?y any of the parties. Jose Q. Calingo for the petitioners. Fojas & Fojas for the respondents. DECISION CONCEPCION, J.: This is a petition for certiorari and mandamus to set aside and annul a decision rendered by the Court of First Instance of Manila in Civil Ca~e No. 13306 thereof, entitled "Sercnidad V. Surio and Maximo Villacorta vs, Dionisia Cafiaveral and Rufino Bautista", as well as an order of ;;aid court denying a reconsideration of said decision, and to compel said court to remand the case to the Municipal Court of Manila "for further proceedings in accordance with Section 10, Rule 40, of the Rules of O:iurt." It appears that on April 19, 1949, Dionisia Cafiaveral executed, with the consent of her husband, Rufino Bautista, an instrument, entitled 'T ~ed of Pacto de Retro Sale," conveying, to Serenidad Surio, married to Maximo Villacorta, "two parcels of land with the building and improvements thereon, situated at 1403 Basilio, Sampaloc, Manila" and more particularly described in said document, subject to redemption within 12 months and to the right C!f the vendor to "continue occupying the premises in the capacity of a lessee at a monthly i·ent oi P40.00 within a period of one year." On November 4, 1950, the Villacortas instituted in the Murdcipal Court of Manila Civil Case No. 13621, against the Bauti&tas, for illegal detainer, In the complaint therein filed, the Villacortas nlleged that they are owners of the property above t·eferred to, by virtue of said "Deed of Pacto de Retro Sale," and that the Bautistas refuse to vacate said property despite their failu::-e to pay tl':e agreed monthly rental and the repeated demands made by the Villacortas. Subsequently thereto, or on December 19, 1950. the Bautistas commenced Civil Case No. 12803 of the Court of Firat Ini:tance of Manila, against tho? Villacortas, for a deciarati?n, among other things, that the deed already adverted to does not express the true intent of the parties thereto, which was alleged to be only to make a "contract of loan with security." This pretense was reiterated by the Bautistas in their answer in the eje"tment case, in which pleading they, likewise, allegeC the pendcncy ot said Civil Case No. 12803 of the Court of First Instance of Manila. In said answer, the Bautistas, also contested the alleged right of the Villacortas to the possession of the property in dis. pute, upon the ground that the ~cme belongs to the former and that the true intent of the parties to the aforementioned deed was merely to constitute n mortgage. After due trial, the municipal court issul?d ~n order, dated February 2, 1951, reading: "Considering that according to thiJ evidence adduced ty th~ parties in this case, the main issue that is raised before the Court is the question of ownership; and considering that the question of possession cannot be decided in this instant without first deciding the question of ownership, the Court finds that it has no jurisdiction to proceed further. WHEREFORE, this case is hereby dismissed. Without pronouncement as to cvsts." mecord p 29) The Villacorta11 appealed from this order to the court of first instance, where the ca!!e wall docketed as Civil Case No. 13386 and the Bautistas reproduced the answe?' filed by them in the municipal ct•urt. In due course the court of first instance, then presided over by Hon, Demetrio Encarnacion, Judge, thereafter rendered a dfcision. dahid FcbruaTy 20, 1952, the dispositive part of which is ar: follows: "POR TODO LO EXPUESTO, encontrando cl Juzgado bien fundada In demanda, cc;m gran preponderencia de pruebas a favor de 1011 demandantcs, se dicta sentencia condenando a los demandados a pagar a dichos dcmandantes los alquilares arriba reclamados, de P240.00 acumulados desdc Abril 19, lf\49 hasta Octubre 19, 1950, mas P40.00 mensuales desde esta fccha hasta que SE' vaquen las propie:lades en cuesti6n y se entreguen a los demand2ntes. Quedan ordenadcs Jog demandados a desalojar las propiedades en cut>sti6n y a pagar las costas del juicio de nubes ins· tancias.'' <Record, p. 59). A reconsidere.tion of this decision having been denied, the Bautistas filed the petition for certiorari and mandamus now under consideration. They claim th:it the court of first instan<'.e !:.ad no appellate jurisdiction to de.::idc the case on the merits, because the municipal court had no jurisdiction to entertain the same, the the issue of possession mvolved tl1crein being dependent upon the question of title to the imm::lVablc prnperty in litigation, whicl: was raised in their answer. This pretense was not sustained by respondent judge, upon the ground that "la defensa de los demandados, de que el convenio era ima simple hipoteca entre ellos, xx x cs inmaterial en la presentc causa, habiendo habido un con~ vcnio formal de pagar los nlquilarcs a los demandantcs." How .. l'Ver, if, as contended by the Baulistas, the parties to the deC'd above referred to merely intrmded to constitute a mortgage, not t:> make a conditional sale, with a ccntract of lease, as snid instrument purports to be, then the stipulation contained therein relative k said lease and to the payment of i·entals must have been de. vised solely for the purpose of cloaking the payment of interest . Hr.nee, said dBfense was very material to the right of possession, which is the gist of the case. Respondent Judge, likewise, ht>ld that said defense of the petitioners herein is barred by the fact that Civil Case No. 12803 of the Court of J<~irst Instanre of l\fanila - in which the Bautistas sought a declaration that the contract in quE:stion was not a conditional sale, but a loan guaranteed by a mortgage - was dismissed on August 15, 1%1, for fa.ilm·e lJf the Bautistas to appear on the date 'set foT the hearing thereof. This conclusion is well taken for the order of dismissal was unqua-lified and, hence, it constituted "an adjudication upon the merits," and, a final determination ad,·erse to the r:foresai<l pretense of thc Bautistas, as 616 THE LA WYERS JOURNAL December 31, 1954 plaintiffs in said case No. 12803 und as defendants in case No. 13306 <Section 4, Rule 3{J, Rules of Court>. Although the court of first instance had no appellate jurisdiction to decide the ejectment case on the merits, inasmuch as the munkipal <'OUJ1: had no ori,qinal jurisdiction over said case, in view of the que3tion of title to real property, upon which the right of possession was dependent lPcdro Teodoro v. Agapito Balatbat et al., G.R. No. 6314, decided on January 22, 1964) said court of first instance had origi1ial jurisdiction to pass upon such issue. What is more, it did exercise its original jurisdiction without any objection on the part of the Bautistas. Indeed, in their rnotiDn for reconsideration dated March 1, 1952, the latter merely assailed the accuracy of the findings of the court of first instance on the merits of the case, thus cle::&rly accepting and, even, invoking, the jurisdiction of the court to pass upon the same, The Bautistas did not question said jurisdiction until March 12, 1952, when they filed a pleading entitled "additional ground for the reconsideration of the decision of the Court", alleging, for the first time, that the " Court had no jurisdiction to try the case on the merits". It wa!l, however, too late to raise this issue, for the court had original jurisdiction over the case and had exercised it w1 .th t11e implied consent of the Bautistas <Amor vs. Gonzales, 42 Off, Gnz. [No. 12) p. 3203, 76 Phil. 481; Espante. \"S Bartolome, et al., CA-G.R. No. 2592, April 27, 1949, 46 O.G. [11) 5447), . As pro. vided in section 11, Rufa 40 of the Rules of Court: "A case tried by an inferior court without jurisdiction over the subject-matter shall be di~rr.issed on appeal by the Ccurt·of First Instance. But instead nf dismissing the case, the Co'Jrt of First Instance in the exercise of its original jurisdiction, may try tl1e case on the merits if the parties therein file their pleadings and go to the trial without any objection to such jurisdiction." In view of the foregoing, the petition is hereby denied and the c&se dismissed, with costs against the petitioners. Paras, C. J., Bengzon, Montemayor, Jugo, J, B. L. Reyes, Pablo, Padilla, Reyes, and Bautista Angelo, J.J., concur. XVII Domingo del Rosario, Plaintil/ and Appellee, ·iis. Gonzalo P. Nava, Defendant-Petitioner and Appellant, Alto Suret'JJ & Tnimrance Co., Inc., Surety.Respondent and Appellee., G.R. No. L-5513, August 18, 1954, Reyes, J, B. L., J. 1. EXECUTION OF JUDGMENT; DAMAGES ON ACCOUNT OF WRONGFUL ATTACHMENT; CLAIM FOR DAMAGES ON PLAINTIFF'S BOND; SINGLE JUDGMENT AGAINST PRINCIPAL AND SURETIES. - Section 20 of Rule 59 plainly calls for only one judgment for damages against the attaching party and his sureties; which is explained by the fact that the attachment bond is a solidary obligation. Since a judicial bondsman has no right to demand the exhaustion of the property of the principal debtor (as expressly provided by article 2084 of the new Civil Code, and article 1856 of the old one>, there is M justification for the entering of separate judgments against them. With a single judgment aggi!1st princip .. 1 and sureties, the prevailing party may choose, at his discretion, to enforce the award of damages against whomFoever he considers in a better situation to pay it, 2. JD.; ID.; ID.; ID.; APPLICATION AGAINST SURETIES MU~T BE MADE BEFORE JUDGMENT AGAINST PRINCIPAL BECOMES FINAL AND EXECUTORY. - While the prevailing party may apply for an award of damages against the surety even after an award has been already obtained against the principal (Visayan Surety and Insurance Corp. vs. Pasrual, L-2981, March 23, 19501, still the application and notice agair.st the surety must be made before the judgment against the principal becomes final and executory, so that aU awards for damages may be included in the final judgment. 3. JD.; ID.; PURPOSE OF REQUIREMENTS OF SECTION 20, RULE 59, - The requirements of section 20 of Rule 59 appear designed to avoid a multiplicity of suits. To enable the defendant to secure a hearing and judgment against the sureties in the attachment bond, even after the judgment for damages against the principal has become final, would result in as great a multiplicity of ections as would flow from enabling him to sue the principal and the sureties in separate proceedings. Relova & Melo for plaintiff and appellee. Guido Advincula and Potenciano Villegas, Jr, for defendant Gcnzalo P. Nava. Raul A. Aristorenaii for the Alto Surety & Insurance Co., Inc. DECISION R~YES, J. B. L., J.: Appeal from an order of the Court of First Instance of Ma.. r.ila in its Civil Case No. 4949, refusing to entertain appellant's npplication to require the Alto Surety and Insurance Co., Inc. to show caui:e why ~xecution should net issue against its attachment bond filed in said case. The· facts arc undisputed. Domingo del Rosario had instituted ll!l ejectment suit against Gonzal<> P. NaYa in the Municipal Court of Manila, Civil Ca.Se No. 4467, and on January 30, 1948, ht: secured a writ of :ittachment upon due application and the fili!lg of an attachment bond for P5,000, with the Alto Surety and Insurance Co., Inc. as surety. Attachment was levied and after the case was tried, the Municipal Court rendered judgment against the defendant Nava. The latter appealed to the Court of First Instan<'e of Manila, where the case was docketed with number 4949. In the Court of First Instance, Nava filed a new answer with a counterclaim, alleging that the writ of attachment was (Jbtained maliciously, wrongfully, &nd without sufficient '!&Use, and that its l(:vy had caused him damages amounting to P5,000. No notice was served upon the surety of the attachment bond, Alto Surety and Insurance Co., Inc. By decision of Ju1y 21, 1950, the Court of First Instance found that the attachment was improperly obtained, and awarited P5,000 damages nnd cOsts to the defendant Nava. The judgment l1aving Oeoome final, a writ of execution was issued, but it had b be returned unsatisfied on January 19, 1951, because no lcviable property of the plaintiff Del Rosario could be found. On Novemb<,1· 7, 1951, Nava filed, through counsel, a motion in Court setting forth the facts and praying that the Alto Surety and Insurance Co., Inc. be required to show cause why it should not respond for thC' damages udjudged in favor of the defendant and against the plaintiff, The surety company filed a written opposition on the ground that the application was iiled out of time, it being claimed that under sec. 20, Rule 59 of the P.ules of Court, the application nnd notice to the surety should be made before trial, or at the lntest, before entry of the final judgment. After writ-ten revly and rejoinder, the Court of First Instance, on December 10, 1951. issued the assailed order, rejecting Gonzalo P. Nava's motion tr, require the Alto Surety and Insurance Co., Inc. to show cause, bt:cause it was filed out of ti~e. Nava then appealed to this Court. The issue before us is whether a notice to the sureties made after the award of damages against the principal in the attachment bond has become final, can be conSidered timely in view of i:;ection 20, Rule 59, providing as follows: "Sec. 20. Claim for damages 011. plaintiffs bond on Mcount of illegal attachment. - If the judgment on the action be in fav'lr of the defendant, he may recovet, upon the bond given by the plaintiff, damagci.i:: resulting from the attachment. Such damages may be awarded only upon application and after proper hearing, and shall be included ;n the final judgment. The application must be filed before the· trial or, in the discretion of the court, before entry of the final judgment, with due Mtice to the plaintiff and his surety or sureties, setting forth the facts showing his right to damages and the amount thereof. Damages sustained during the pendency of an apDecember 81, 1954 THE LAWYERS JOURNAL 617 peal may be claimed by the defendant, if the judgment of the appellate court be favorable t" him, by filing an application therewith, with notice to the µlaintiff and his surety or sureties, and the appellate court may allow the application to be heanl and decided by the trial CO\lrt." Appellant invllkes and relies t~pon the decisions of this Conrt, in Visayat! Surety and InsurancP Corp vs. Pascual, G. R. No. 1.-2981, promulgated on March 23, 1950, and in Liberty Constl"uction Supply Company vs. Pecson, et al., G.R. No. L-36!M, promuli;ated on March 23, 1951. In the first casC' cited, this Com t ruled as follows: "H> That damages resulting from f)reliminary attachment, preliminary injunctkm, the appobtment of a receiver, or the seizure of personal property, the payment of which is secured by judicial bond, must be claimed and ascertained in the same action with due notice to the surety; (2> That if the sul'ety is given such due notice, he is bound by the judgment that may be entered against the principal, and writ of execution may issue against said surety to enforce th& obligation C1f the bond; and (3) That if, as in this case, no notice is giv~n to the surety of th£> application for damages, the judgment that may be entered against the principal cannot be executed against the surety without giving the lntter an opportunity to be heard as to the reality or reasonablene9s of the alleged damages. In such case, upon application of the prevailing party, the court must order the surety to i:,how cause why the bond should not respond for the judgment for damages. If the surety should contest the prevailing party, th,. court must set the a pplication and answer !or hearing. The hearing will be summary and will be limited to such new defense, not previously set up by the principal, as the surety may allege and offer to prove. The oul proof of damages already adduced by the claimant mav be reproduced without the necessity of an opportunity to c~oSs examine the wit11ess or witnes.~cs if it so desires. To avoid the necessity of such additional proceedings, law. yers and litigants are admor.izt.ed to give due notice tll the surety of their claim for damages on the bond at the time such claim is presented." And in Liberty Construction & Supply Co. vs. Pecson, G. R. No. L-3694, May 23, 1951, this Court held: ''The petitioner, in support of his contention that the judgment for damages In favor llf the petitioner against the plz.mtiff in the civil case binds th•1 respondent Alto Surdy and Insurance Co., Inc., although th~ latter was not notified or inc~ud ed as defendant in the petitiuner's counterclaim for damage,. against the said plaintiff, quotes the decision of this Court in the case of Florentino vs. Boniadag, 45 0. G. (11) 4937, pro-· rnulgated on May 14, 1948. But the ruling in said ca:;e was abandoned in a later case entitled Visayan Surety and Jnsurance Corp. vs. Pnscua! <Jt al. r.. - R. No. L-2981, Fromulgated on March 23, 1950, in which this Court held that 'damage;; resulting from preliminary attachment, preliminary injunction, the appointment of a receiver, or the seizure of persvnal property, the payment of which is si::cured ily judicial bond, must be claimed and ascertained in the same aciinn with due notice to the sm·ety' and 't-liat if the surety is give~1 such due notice, ht is bound by the judgment that may be entered again'lt principal, and writ of execution m&y issue against s&id surety to enforc1: the obligation of the bond,' and that if no notice is given the aurety ~i1e judgment cannot be executed ar:ainst him without giving him an opportunity tll present sucp defrnse as he may have which the principal could not previously ~et .up.'' It wili be seen that the rulings above quoted are silenl. on the question now before us, that is to say, the time within which the application and notice to the surety should be filed in those cases where a judgment for damages has already been rendered against the plaintiff as principal of the nttachmcnt bond. Upon mature consideration, we have reached the conclusion that under the terms Gf section 26 of Rule 59, the application for damages and the notice to the sureties should be filed in the trial Court by the party damnifi€d by the wrongful or improper attachment either "before th(• trial" or, .'.lt the latest, "before entry of the final judgment," which mrnns not lat~r than the date when the judgment becomes finul and executory (sec. 2, Rule 35). Only in this way could the award against the sureties be "inc.ludo:!d in the final judgment" as required ly the first part of sec. 26 of Rule 59 . The rule plainly calls for only one judgment for damages agninst the attaching party and his sureties; which is Explainr.d by the fact that the attachment bond is a solidary Dbligation. Since a judicial bondsman has no right to demand the exhaustion of the property of the principal debtor Cas expressly provided by Art . 2084 of the new Civil Code, and Art. 1856 of the old one>, there is no justification for the entering of separate judgments against them. With a single judgment against principal and sureties, the prevailing party may choose, at his disrretion, to enforce the award of damages against whomsoever he considers in a better situation to n?.y it. It should be observed that the requirem<'nts of section 20 of Rule 59 appear designed to avoid a multiplicity of suits. But to C>nable the defendant to secure a hearing and judgment agamst the rnreties in the attachment bond, even after the judgment for damages against the principal has become final, would result in as Lri'at a multiplicity of adillns as would flow from enabling him to si;e the principal and the sureties in separate proceedings. In view of the foregoing, we hold thai while the prevailing party may apply for an award of damages against the surety even after an award has bi::en already obtained against the principal, as ruled in Visayan Surety and Insurance Corp. vs. Pascual, G. R. No. L-3694, still the application and Mtice against the surety must be 1'1ade before the judgment against the principal becomes final and t::xecutory, so that all awards for ciemages may be included in the final judgment. Wherefore, the Court below committed no error rn refusiilg to entertain the appellant Nava's application for an award of damages against the appPilee surety Company ten months after the award against the principal obliger had become final. The order appealed from is affirmed, with costs against appellant. Paras, C.J., Pablo, 8e11g;:on, Padilla, Montemayor, A. Reyes, .iugc, Bautista Angelo, Labrador anrl Concepcion, J.J., concur. JUDGE MORFE UPHOLDS THE <Continued from page 585) political or social motives, that is, in furtherance of rebellion, instead of being punished separately, be deemed to form part of the complex crime of rebellion with murder or other grave felonies, and punished as provided in Art. 48 of said Code. 3. In view of the existence of the complex crime of rebellion with murder and other gra,•e offenses in this jurisdiction, the motions to quash the informations is the above-entitled cases Qn the ground that they charge more than one offen.=ie are clearly without merit. 4. There is no merit in the additional ground invoked in the motion to quash the information in Crim. Case No. 19650, People v. Dumlao, namely, t-hat the accused has been previously convicted. or in jeopardy of being convicted, or acquitted of the offensP. charged. It is true that the said accused was convicted in Crim. Case No. 19179 by this Court on December 14, 1951 of the offense of illegal association penalized by Art. 147 of our Revised Penal Code, but the present rebellion charge against the accused is one that does not necessarily include or is necessarily included in the CContinued on page 622) 618 THE LA WYERS JOURNAL December 81, 1954 DECISIONS OF THE COURT OF APPEALS Valtlntin Domasig, Plaintiff-AppeUee, 'V8. A. L. Ammen Transp11-7tation Co ., foe., Defendant.Appellee, CA .. G. R. No. 8244-Q, A11gu.-it 30, 1952, Gutierrez Davfrl, .r.: ACTION FOR DAMAGES ARISING FROM A COLLISION BETWEEN A TRUCK AND A BUS; NEGLIGIENCE; LIABILITY OF THE BUS COMPANY; CASE AT BAR. - On September 5, Hl49 between 3:00 and 4:00 o'clock p.m., plaintiff bo:i.rded an Alatc.o bus of the Ammen Transportation Company at Sorsogon, Sorsogon, bound for Gnbat and after passing a c ~1rve said bus stopped infront of a store in Gubat to take in and unload passengers. It parked on the right edg!l of the road and at a distance of 20 meters from tne curve. , While the inspector of the bus was examining the tickets of the passengers, a 6 x 6 cargo truck coming · at a great speed from the direction of Sorsogon and bound for Gubat, bumped said Alatc'l bus on the left rear side destroying and damaging its rear portion and scats and pinning the left 1eg of the plaiJJ.tiff between two seats thereof. Plaintiff was brought to the hospital wherein his leg was hmputated at the joint below the knee. As a result of said injury hr is now perma'ncntly disabled and has to depend on cha1·ity .i.nd the help of friends and relatives for his living. This action was brC'ught by the plaintiff-appellee against the Amil1eJl TransportatWn Company, the <lefendant-appeUant for tho recovery of damagPS in thP amount of PG,300 resulting from the injury suffered by the plaintiff. HELD: It is beyC'r:d debate that appellant's liability was contractual. The contract was of carriage, appellant binding itself to carry the appellee safely and securely to his destinr:.tion. Upon the facts of the case, we are of the .,pinion that the accident in question was caused by an act of n third person which, even with thf' exercise of utmost diligP.nce, cou1c1 not be reasonably foreseen, It was :m extraordinary circumstance independent of the will of the appellant or its employees. It was, therefore, a ease fortuito. The plaintiff may dt.im proper damages for his lnjury from the owner of operator of the cargo truck which bumped the Alatco bus. Vicente L. Peralta., for the pli;intiff-appellee. Manuel 0. Chan., f'or the defendant-appellant. DECISION GUTIERREZ DAVID, J.: On May 22, 1950 Valentin Domasig filed this action in the Court of First Instance of Sorsogon, against A. L, A mm en Transp')rtation Company, Inc. - hereine.f'ter referred to as Alatco - to recover damages in the. amount of PG,300.00 for the injury he suffered while a passenger of the bus No. 316 of the defendant. tram~ JJOrtation company. In the main there is no dispute on the following facts of the case: On September 5, 1949 between 3:00 and 4:00 o'clock p.m. Valentin Domasig boarded Bus No. 316 of the Alatco, at Sorsogon, Sorsogon, bound for Gubat and after passing a curve, said bull stapped in front of a store in Gubat, Sorsogon, to take in and unki;.d passenger. It parked at the right edge of the road and at a distance of 20 meters from the curve. While the inspector o:! saict bua was examining the tickets of the passengers, a 6 x 6 truck - owned and operated by Arnedo and Salandanan, of Castilla, coming at a great speed from the direction of Sorsogon and bound for Gubat - bumped said Alateo car on the left rear side destroying and damaging its rear portion and seats and pinning the left leg of Valentin Domasig between two seats thereof. Dornasig was able to extricate himself with the help of his son, Benbenuto, and another pas!'enger. He was later on brought to the Sorsogon Provincial Hospital in a sedan ear of the Alateo. In the hospital his leg was amputated at the joint below the knee. He stayed in said hospital from Sl·ptember 5 to November 5, 1949 and spent P27!i.10 for hospitalization; P200.00 for medicines and f200.00 for subsistence. As a result of said injury he is now p~r manently disabled and has to depend on charity ail.d the help of friends ana relatives for his living. Plaintiff has proved that althou~h hi? was already old, oi- 87 yl:ars of age, he was ~till able to work as tenant, and had, ·at the time of the accident, an ea?'ning capacity of not less than P4. 00 a day. After trial, the lowe1· court rendered judgment ordering the Alat.. co to pay to Dolmasig, as damages. the amounts of P2,000.00 for his permanent disability, Pl,000.00 for moral damages and P525.10 fm hospital expenses, and to pay the costs. From the aforesaid judgment the Alatco has brought this AP· p(:al assigning, as errors of the trial court, the following: <l> in holding that parking a car 20 meters from n curve constitutes negligence; C2) in failing to consider that the accident from which plaintiff-appellee suffered the injuries complained of, was not due t'l the fault of the nppeU3.nt or any of its agents; (3) in failing to take into account that the negligence nnd imprudence of the driver of the cargo truck which struck car No. 316 of' the appellant was the immediafo cause of the acc~dent; 14) in holding b.ppe.llant liable for damages to appcllt!e; t5) in holding appellant liabfo to the plaintiff-appellec in the total sum of f'3,525.10; and <C> in not dismissing plaintiff's complaint. The judgment of the lower court against the appellant was predicated on the following findings: "x x x Considering specially thl!"-admitted fact that the Alatco car No. 316 was parked not only after passing the curve, but thot the road was going down, and that the bus could be seen r,nJy after passing the curve, or at a distance of Jess than 20 meters, the defendant transportation company was guilty of negligence in parking in that place. By parking in that place, the defendant made it possible for the accident to happen. It should have- exercised reasonable diligence, and should not have placed its car in a situation, where the contributory negligence of other drivers, and accident might happen. The defendant, having contributed to the aC"cident, is 1iable for damages caused to the plaintiff who was a passenger in its car, as it is its duty as a carrier to transport its pas4 sengers safely to their destination." rn. on A., p. 13) It is beyond debate that appelfant's liability, if any, was contractual. The contract was of carriage, appellant binding itse"f t:o c:arry the appellee safely and securely to his destination. The only question to be determined is whether o.ppellant's failure to do so was due to the causes mentioned in Art. 1105 of the Civil Code which reads as follows: "No one shall be liable by events whieh could not be foreseen or which, even if' foreseen, were inevitable, with the exceoti'ln of the cases ill whieh the law expressly provides c.therwise and. those in which the obligation itself imposes such liabi. lity." Upon the facts of the case, we are of the opinion that the accident in question was caused by an act of a third persvn which, even with the exflrcise of utmost diligence, could not be reasona~ly foreseen. It was en extraordinary circumstance independent of the will of th~ appellant or its emplcyees. It was, therefore. a caso fortuito. The act of the driver of the Alatco buS in stopping to 1 )ad passengers. and pa1·king on the right side of the road at a distance of 20 meters from a curve is not a violation of any traffic regulation nor does it constitute negligence. The' driver of the cargo truck which strock the Alatco bus was the one guilty of negligence. JJecember :.n, 1954 THE LA WYERS JOURNAL lil9 Had he been sufficiently careful he would have had time and op. 110rtunity to avoid the mishap. Since the negligence of this driver creiatcd the situation from which the injury resulted, neither the driver nor the owner of the Alatoo bus should be held liable theref<lr; and as far as these are concerned the injury should be regarded as ;,.n unavoidable accident. WHEREFORE, without prejudice to the right of the appellee to claim the proper damages for his injury from the owner or operator of the cargo truck which !:umped the Alatco bus, the judgment appealed from is, hereby, ordered reversed and the complaint dis.missed, without costs. Felix and Pe1ia, J.J., concur, II Pedro Villarama, Plaintiff-Appellant. vs. Pampanga Bus Compa:ny, Inc., De/P.ndant-Appcllee; Adriano Lindayag, Plaintifl-Appellant, vs. Pampanga Bus Compa11y, Inc., Defendant-Appelicmt CA-G.R. Nos. 11026-27-R, Rodas, J. ACTION FOR DAMAGES RESULTING FROM A COLLISION BETWEEN A BUS AND AN ARMY TRUCK; NEGLIGENCE; FORCE MAJEURE; CASE AT BAR. - In the aftei-noon of December 22, 1948 plaintiffs boarded the Pambusco bus which was on its run from Manila to Mal0los. On reaching a place at the highway between Bocawe and Bigaa, Bulacan, and when it was about to meet an Army Convoy, a bus of Villanueva Transit went ahead the Pambusco bus and before the Villanueva Transit Bus could take its proper side on the road a collision took place between said bus and a 6 x 6 truck of the Army Convoy, as a result of which the driver of the lat. ter lost oontrol of the wheel and in turn strucked the Pam. busco Bus which fell on its right side. Plaintiffs suffered in. juries. They filed this action ai?ainst the Pambusco Bus Company asking each one of them Pl0.000.00 damages arising fr'Jm the injuries they suffered. HELD: The PambuscO Bus Company is .exempt from any civil liability. It was im. possible for the Pamhusco driver to do anything to prevent the collision of the Army truck with his bus. What. the law says about fortuitous event is that it is an event which coulc! not be foreseen or which though foreseen is inevitable. There was no means on the part of the Pambusco driver to avcid the collision of the Army truck with his bus. Had he stopped his bus by putting on the brake the collision would have taken place just the same. F'. R. Capi~trano & M. f_, . Nicolas for the plaintiff. Manuel 0. Chan Counsel for t-he Defendant. DECISION H.ODAS, J.: At 5 o'clock in the afternoon of December 22, 1948, Adri<1.no Lindayag boarded the Pambusco Bus No . 44, which was on its run from Manila to Malolos, at the corner of Magdalena and Azcarre.ga 5treets, M.:mila, and Pedro Villarama on Rizal Avenue of the same City. On reaching a place at the highway between Bocaue and Rigaa, Bulacan, and when it \vas about to meet an Army convoy, a bus of the Vinanueva Transit went ahead of the Pambusco bus and before the Villanueva Transit bus could take its proper side en the road collision took place between said bus and a 6 x 6 truck cf the Army convoy, as a result of which the driver of the latter Jost control of the wheel and ir: turn struck the Pambusco bus which fell on its right side. Both Pedro Villarama and Adri~no Lindayag iniffered injuries and had to be tnken to the provincial ltospital of Bulacan where they were treated, Villarama having remained in said hospital until January 9, 1948, while Adriano left after five days with the doctor's permission upon the assurance that he would have a local doctor of Pa.ombong where he hails from to assist him. Pedro Villarama filed Civil Ca.se No, 377 on June 22, 1949, and Adriano Lindayag filed Civil Case No . 397 on October 10> 1949, both in the Court of First Instance of Bulacan, each ask· ing ten thousand pesos damages arising from the injuries they suffered. After the presentation of evidence by plaintiffs Villarama and l.indayag in said two civil cases which were tried together against defendar:t. Pambusco Bus Co., Inc., the lower court on July 28, W52, ordered the suspension of further proceedings until Criminal Cases Nos, 1009 and 10010 of said court concerning the same ac. cident which gave i·ise to the filing of said two civil cases and were then pending in the Court of Appeals, be finally decided. Counsel for plaintiff Villarama moved in vain for the setting· aside of said order. A~ter due trial, the lower court handed down its dtdsion in said two cases acquitting the defendant in both cnses with costs against the plaintiffs, without prejudice to any civil action which plaintiffs may have against the Villanueva Transit. The case is now before this Court on appeal based on the following assignment of errors: l. In holding that defen<l<:.nt's bre~ch of the contractual obligation of carriage was due to a fortuitous event. 2. In not holding that defendant was not free from fault .or negligence or from participation in the aggravation of ~he injury resulting to the plaintiffs. 8. In absolving defendant from the plaintiffs' complaints and in not giving judgment for each plaintiff in the amount of ten th.:>usand pesos rPl0,000.00> as compensatory and moral damages. It is true that the actions brought by plaintiffs in the above. mentioned two civil cases arise from the contracts of transportation impliedly entered into between said defendant company and the plaintiffs for their safe conveyance from the place where they boarded the bus in Manila to ~heir destination in Malolo~, Bulacan, ::ind that any obligation arising from any injury or loss they may suffer on the way could only be excused by a fortuitous event ::nd t!1e burden of proof is incl1mbc11t upon the defend!int to estab. lish fortuitous event to rebut the) presumption of fault or negliw ~ence on its part. Pedro Villarama testified that the Pambusco bus was running at a regular speed or a little bit faster than the ordinary because "we were .on a straight i·0ad and the Army trucks were coming from "- different direction or toward Manila. The Villanueva bus which was following the same direct¥:in as ours succeeded in passing our bus''. Adriano Lindayag testified that after passing the building of the San Miguel Brewery in Baliritawak the speed of "our bus was increased because there was r:o heavy traffic; it was run. ning at a speed of 40 miles per houi·. While between Bocaue and Bigaa at about 7 o'clock in the evening I suddenly noticed a ~ollision of our bus with a t.ruck and up to the moment of the collision our driver had not lower down his speed." Juan Manalo, driver of the Pambusco bus, testified that upon arriving at Marilao, Bulacan, he put Dn his lights; that he Mticed that all the cars had already their lights on; that he was runw ning t-hen at the rate of 30 kikmetcrs per hour; that betwEet. Bocaue and Higaa, he saw a convoy of Army trucks coming from the opposite direction and when hf' was abo),!t to meet them the Villanueva Transit bu~ suddenly passed him; that before it could reach its proper place it oollided with the first Army truck and the truck in turn collided with his bus which was thrown sidewise. Appellant's counsel contend "that the testimony of the Pamtusco driver on cross-examination shows that he was not free from fault or negligence or from participation irl the aggravation of 1he injury resulting to the plaintiffs', and in support of their ron.tention they quoted part of his testimony: P. Sabe ustcd si despues del choque siguio en camino corriendo o paro despues del choque? G20 THE LAWYERS JOURNAL December 31, 1954 R. No se he fijado porque mi coche se cayo. P. Bueno, inmediatamente antes de! choque del Army truck con Pambusco, usted se ha fijado a que sitio o a que distancia estaba VHlanueya Transit? R. Po co mas o me nos de 10 metros. P. Ese despues de que el Army (truck) haya chocado con el Villanueva Transit? R. Si sefior. P. Al ver csto, que hizo cuando al ver que el Army truck choco con el Villanueva Trensit que hizo usted? R. Continuo manejando porque no podemos hacer parar. P, Quiere ustcd decir que continuo corriendo hacienda correr el Pambusco? R. Cuando al tiempo que ellos, el Army y Villanueva chocaron, in."nediatamente el Army truck estaba ya conmigo y mo chocco. <Tr. p, 10, trial of July 23, 1952>. The negligence of the Parnbusco bus driver is made to consist in his inability ti:> state whether after the Army truck collided with his bus the latter continued to run or came to a stop and in his failure to slacken his soeed in spite of the fact that he saw an Army truck C<"mini:::- from the opposite direction and likewise in his failure to stop his bus when the Army truck collided with the Villanueva Transit bus. TltP in.:'.l.bjljty of said driver to state whe-ther the Army tn1ck came to a stop after colliding with his bus _or.ly proves failure of his memory caused by the unexpected and unforeseen event of the collision nf the Army truck first with the Villanueva bus and then with his bus. Wh~n the collision between the Vmanueva Transit bu::: and th(' Army 6 x e truck took place the Pambuseo bus was bPhind thP Villanueva Transit bus at a distance of about 10 meteTs hut before he could do anythmg the Army truck hit his bus. We don't see any neglig-ence on the part of the driver of the Pambusco bus because of his failure to stop his bus : Th<>re was no chanre or time for him to eithf.r slacken his sneed er put the . bus to a dead stop, for before he could do so the Army truck had alreadv struck his bus. The col\isio!l between the Villanuev.:'.l. Transit bus. and the Army truck and the colliston between the 6 x 6 truck and the Pambusco bus must have taken place almost at the same time or at the wink of the eye. It was impossible for the Pambusco driver to do anything to prevent the collision nf the ATmy truck with his bus. What the law says about fortuitous event is that it is an event which could not be foresePn or which though forea:ee:fl is inevitable. There was no means on thE:: part of the Pambu~co driver to avoid the collision (If the Army truck with his bus. Had he stopped his bus by putting on the brake the collision would have taken place just the Again appellant's ct;mnsel tried to lay the blame on the Pam· busco bus driver because of his failure to slacken his speed when the Villanueva Transit bus overtcok and passed him despite the fact that he saw an Army convoy of trucks coming fr1Jm the op. posite direction, and it was alre:idr dark, and in support of this contention counsel f(Uoted from the testimony of the Pambusco b.is driver the following: Q. Immediately before the Villanueva Transit bus and the Army truck collided, did vou notice whether there was any vehicle parked along the road? A, No habia. Q Was there any pedestrian walking? A. No me he fijado. Q_ At the time were the lamps of your vehicle already light<>d? A. Si, seiior. Q. How Ion~ had you already Hghted your lamps at the t;me you met the accident? R. Estando en Marilao ya he abierto la luz. Q. About the vehicles which are coming from the oppo&ite direction of Malolos to Manila were they already lighted at the time the accident happened? R. Si, seiior, ya tenian. Q. Immediately before you were overtaken by the Villanueva Transit bus did you notice any vehicle going ahead of you towards Malolos? R. Muchos. Q, Can you tell this Court the nu.mber more or less? R. Habia muchos, ya era de noche. Q. Were they more than ten? R. Mas de dies. Q. What were those vehicles if you know? R. Trucks of an Army, COURT: Q. All tho~e ten vehicles more or less that you Sj),W are all Army trucks? R. Si seiior, porque tenian luz. Q. Only you can see it was an Rrrny vehicle because of the JigH? R. Yo le:i vi par medio de la luz que ti en en que eran convoy. (tr . pp. 14-H\ July 28, 1952> Counsel contend that the Pambusco bus drlver"s failure to notice whether there was a pedestrian on the road ahead of him again shows that he wa.• inattentive or negligent. Again this is a qui'S· tion of memory, A driver, while passing along a road should notice of com-se the presence ()f pedestrians on both side-s of the road and more puticularly on th') side where he is travelling, but that does not mean that he is bound to remember that at ouch and such a place at the tim<' he wa:i passing therP. were pedestrians aud we believe no driver can have enough retentive memory as to be nble to remember at what place or places on his way he saw reCestrianl'I. He may remember for instance that while passing on the approach of a bridge or on the! bridge he saw pedestrians on both sides or while going through a city or town or a barrio he saw people on the road but not in ::JI the places of the road cnuld he remember the presence- of pede!'trians. And when, as in this case, a collision occurrf'd which involved his own bus and causf'd comiderable damage thereto, there iii nothing strange that he may have forgotten whether th~re were pedestrians or not at the place uf t.he collision. Again counsel contend that "the fact that it wal' already dark, that his bus and all vehicles he had met prier to the collision had their he:tdlights on and fhat, prior to the mishap, he had already met ten Army trucks from the opposite direction, should have put him on his guard when he noticed or saw the Villanueva Transit bus trying to overtake and pass him and an Army convoy of trucks £peeding toward them from the opposite direction should have put him on his guard when he noticed or saw the Villanueva Transit bus trying to overtake and pass him and an Army convoy of trucks speeding toward them from the opposite dirPction. Prud~ cnce and caution dictated an immediate slackening of his speed due to a possibility of collision between the Villanueva Transit bus and the incoming Army truck considering the narrow stretch of the road; but said Pambusco driver did not do so, in view of which t.he Army truck, after colliding with the Villanueva bus, struck the Pampanga bm: on th<> rPbouncl. Therefore, and even assuming that the collision betw·epn the Army tn:.ck and the Villanueva Transit bus was a case of fortuitous event, still there was fault or nC'gligence on the part of the driver of the Pambusco bus,'' The Pambusco bus driver stated that upon ~eeing the .A,rmy convoy he lnwered down his speed from 30 to ab<.lut 25 kilometers per hour, He ndmitted that he did not slacken hi!I speed while the Villanueva Transit bu!I was passim~ him or immediately .after it had passed him. It shoulcl be remembered that both the drivers of the Pam~ husco bus and the plaintiff Adriano Lindayag testified that the December 31. 196' THE LA WYERS JOURNAL 621 pnssing of the Villanueva Transit bus took place so suddenly and in fact Lindayag said he only noticed it when all of a sudden the collision took place. And the plamtiff Pedro Villnramo did 1;1ot ('.ven notice the Villanueva Transit bus passing the Pambusco bus. The Pambusco bus driver stated that he knew the Villanueva Transit bus was foilowing him becam;<:i of his light but all of a sudderi he just saw it ahead, If the P~1r.t.usco bus was running fast It would have taken the Villanueva Transit bus rnmetime to get ahead of the Pambusc.o bus. The fact that he was able to do so without being noticed shows that he 1lid it so quick while the Pambusco bus, as the driver stated, was running about 25 kilometers per hour after having slackened down his speed upon seeing the con\'OY coming. A speed of 25 kilometers per hour would allow the driver to bring th~ bus to a d~ad st.op within less than one meter distance if his. brakes ore in good working condition. If tho driver ·of the Villanueva Transit bt:.:: dared pass the Pambusco bus notwithstanding the incoming Arm~· convoy of several trucks tr.at goes to show that said driver must have estimated that he could do so without any risk of collision. And the driver of the Pambusco bus who fea1·ed no collision at all between the incoming Army convoy and his bus had no reason to still slacken his speed after having done so upon seeing the Army convoy. At any rate, at the speed he was running he C'ould bring his bus to a dead st.op within a distance of one meti~r but the trouble came because of the miscalculation of the distancP between the Villanueva Transit bus and the incoming Army convoy and this brought about thl' collision and made it impossibh: for the Pambcsco driver .to stop his bus or maneuver in some way to avoid the accident be. cause of the suddenness of the e\-ent. If cars or buses have to Stop on the highway upon seeing inc.~ming Army convoy of trucks, we can hardly figu.re out the blocking of traffic that may result. A slackening of the speed of said cars or bu!>es was more than enough to forestall untoward event and no collision would have taken place had the Villanueva Trensit bus which was behind thP Pambusco bus had not dared to pass the lattu. No rules of traffic require the stopping of cars or buses on a highway upon met:ting Army convoy. Jn fact no rules of traffic require even thC slackening of speed provided the proper distance is observed; that is why a middle line· is always drawn on highways so that no car or bus will encroach on the opposite lane except when there is a clear road. Counsel for appellants are willing to conce:dc that the collision between the Army truck and the Villanueva Transit bus was a case of fortuitous event but ar~ not willing to concede that there was no fault or negligence on the pD.1t of the driver of the Pambusco bus. We ditfer on this altogether, that is, that the collision between the Army truck and the Villanueva Transit bus was due to the carelessness and imprudence of the latter's driver while the collision between the Anny truck and tho Pam· bus co bus was a clear case of fortuit:.ous event, Counsel for appellants contend that the Pambusco bus driver was running at a speed of more than 40 miles per hour or about 64 kilometers and not 2·5 or 30 kilometers, as testified to by said driver. In this connection said counsel stated: "lt is, therefore, probable that when the Villanueva Transit bus was trying to over. take the Pambusco bus, C!ach considerably increased its s1ieed; the former to overtake and pass the latter, and the latter not to be cvertaken and passed behind by th<! former. Under the circums.. tances, the estimated speed of 40 miles per hour given by Adriano Lindayag as the speed of the Pambusco bus when it was overtaken and left behind by the Villanueva Transit bus is more worthy of credence, than the speed of 25 kilometers <about 15 miles) testified to by the Pambusco bus driver. At the speed of 15 miies per hour, a motor vehicle can be put to a stop in an instant. If the Pambusco bus could not be put to a sWp despite the application of the brakes, it was because it was running fast despitl' the apparent probability of collision under the circumstances, which the Pam. busco bus driver Qid not heed, He was, therefore,. negligent be. cause he should have foreseen the collision, and did not exercise diligence to avoid or prevent the same." Experience tells us that buses on the highway run most of the time faster than 40 miles per hour. In fact only powerful wrs can overtake them and even cfrivers of such cars would not dare do so. Such buses constitute a terror not only to pedestrians but also to automobiles. In the instant case, however, all indicationr; are to the contrary, It was <.stablishC!d without contradiction that the distance between Manila r:..nd Malolos is 43 kilometers and that around five o'clock in the afternoon of DeccmbC!t 22 the Pa!tlbusco bus No. 44 was at the corner of Azcarraga and Magdalena streC'ts where plaintiff Villanima boarded it and a little late1· the othe1· plaintiff Lindayag boarded the same bus along Rizal AvC!nue and that the collision to'lk place between Bocaue and Bigaa betweC!n 6 and 8 o'clock in the eyening or about 20 or 25 kilometers from the starting point which was covered hy said bus in over one hour, It is, therefore, not probable that it would have run faster than 30 kilometers per hour. Moreover if, as contended by counsel for appellants, "when the Villanueva Transit bus was trying to overtake the Pambusco bus, £-ach conside1·ably increased its speed, the former to overtake and pass the latter, and the latter not to be overtaken n.nd passed be. hind by the former. and that under the circumstances, the estim[l.ted speed could not be less than 40 miles per hour," the paso;engers of the Pambusco bus, including the two plaintiffs hC!rein, would have naturally noticed the i·ace between foe two buses ancl certainly tr.e damage caused to thP busPs woulcl hav<.> been greater and probably there would liave been somC! casualties. Nothing of this aort ho!)pened. The pasi;ing of the Villanueva Transit bus was ::i.lrnost nn. noticer! by th~ passengers of t.he Pambusco bus including the two f1laintiffs, so that even against our person1!.l experience we h~v" to admit that all the facts e~tablished by the evidence in this cas~ ~.fforded by the witnesses for both sides - excluding Adriano Lindayag who inspite of not having noticed that there was a r:i.c~ hetwcC!n the Pan1busco bus and thC! Villanueva Transit bus has nRS'.lred the court that t.hC! Pambusco bus was running over for~y miles pet' hour - do not uphold the theory of appellants' counsel, We need not pass on the. other legal qut>stions raised by coun. sel for appellants for what has uh·C!ady been stated is mol'e than ~ufficient to lead us to the conc!usion that the decision appealed from is in accordance with the law and facls 1;1f the case and is herC!by affirmed with costs against appellants. Feliz and Pe1in, J.J., concur. JUDGE MORFE UPHOLDS THE C Coutinued from 7lage 618) crime of illegal association for which the accused was fo1·merly convicted, it being possible under Arts. 134 and 135 of our Revised Penal Code for one who is not a member of an illegal asso· ciation to commit rebellion by joining in an armed uprising against the government. Moreover, this Court does not adhere to the doctrine set by our Court of Appeals in the case of People v. Cube, CA·G.R. No. 10G9, decided on November 24, 1948, in which it was held that mere membership in or identification with an organization openly fighting to overthrow the government is legally suffi. cient to rende1· one guilty of rebellion in this jurisdiction. This Cou1-t holds the view, in this connC!ction, that one accused of rebellion must perform an overt act of public disorder consisting in direct participation in an uprising against the government before he can be convicted of the offense of rebellion under our Revised Penal Code, and is consequently of the opinion, and so holds, that the evidence of membership in an illegal association for which the accused was convicted in Crim. Case No. 19179 of this Court on December 14, 1951 would not be sufficient to convict him of the offense of rebellion now charged against him, it being necessary in the latter case that an additional evidence, namely, that he ac· tually took part in armed uprising against the government, be adduced against him. This accused's motion to quash under sub-sec. (h), Sec. 2, of Ruic 113 is, therefore, without merit. (People v. Garcia, G3 Phil. 296; Blair v. State, 81 Ga. 629; 7 S.E. 855; State v, White, 123 Iowa 425; 98 N.W. 1027). 622 THE LAWYERS JOURNAL ' December 31, 1954 DECISIONS OF THE COURT OF INDUSTRIAL RELATIONS N<ttional Labor Union, I'ctitio11cr, 1:s. I'lfalate Taxicab & Garagt, Inc., Respondent, Case No. 946-V, November 9, 1954, Bautista, J. 1. COURT OF INDUSTRIAL RELATIONS; PAYMENT OF ONE MONTH SEPARATION PAY; LAW APPLICABLE. - The petition alleges that the 360 drivers of respondent wer~ dismissed without one month notice on September 10, 1954, and that respondent, when required to pay them one month compensation, refused to do sn. HELD : There is a cause of action based on the pr(lvisions of Republic Act No. 1062 which was enacted on June 12, 1954. 2. nno.; mrn.; mm.; TAXICAB DRIVERS ENTITLED TO ONE MONTH COMPENSATION UNDER REP . ACT NO. 1052; MEANING OF ONE MONTH COMPENSATION. - The case of Lara vs. Del Rosario C50 0. G., No. 5, 1975> wherein the Supreme CoUl't 'held that drivers of taxicabs do not come under the prcvisim's of Art. 302 of the Codi' of Commerce, because they have no fixed salary either by th~ day, week 01· the monl-h, whil•l the Cod·.? of C')mmel·cc speaks of "salary corresponding to one month" commonly known as "me:,uda", heillg an intci·prctation of a law which no longer exists is not applicable to the instant case, ht!cause Republic Act No. 1052 is diffe1·ent from the old law. Instead . of "mesada" the new law speaks of "one month compensation". This means that whatever may be the compen!':ation, whether it is b.'.lSed on a fixed salary for hours 'Jf wo"k or by piece work, or by commission ba!':is, falls under the provision of the new law, Sincf' the paymrnt by commission is also n form of compensation, the drivers in thi!j case are within the scope of said Republic Act. 3. IBID.; COMMONWEALTH ACT NO. 103 NOT REPEALED BY INDUSTRIAL PEACE ACT, - · Although modified tll}d supplemented by the Tndustrial Peace Act, Commonwealth Act No. 103 is still . in force, The Industrial Peace Act expressly recogniT.cs the Court of Industrial Relations by declaring that when this Act uses "Ccurt" it means the Court of Tn· dustrial Relations unless another Court shall be speccified." And instead of reducing th!! exclusive jutisdictton of the Court of Industrial Relations, the new law amplified it in cases related to unfair labor practice, certification election, investiga. tion of internal labor organization procedures, compliance of Republic Act No. 602 and Commonwealth Act No. 444 and many other matter,g . There is P.O 9rovision in the new law expressly repealing Commonwealth Act No. 103, but a repealing clause worded in general term: "Sec. 29. Prior Inconsistent Laws. - All acts or parts of acts inconsistent with the provisions of this Act are hereby repealed," 4. IBID.; IBID.; EFFECT OE' THE INDUSTRIAL PEACE ACT ON THE COURT'S POWER OF COMPULSORY ARBITRATION UNDER COMMONWEALTH ACT NO . 103.The compulsory arbitration in the old Act, being inconsistent with the purpose of the new I:i.w, is abolished and r>:!placed by the process of collective bargaining. But this does not mean that the whole C. A. No. 103 is repealed. Since "laws are repealed only by subsequent ones", <NCC Art, 7> not by mere implication, the duty of the Court is to reconcile apparently conflictine laws . 5. IBID.; IBID.; IBID.; POWER OF THE COURT TO ENFORCE PAYMENT OF SEPARATION PAY. - The ques· tion is whether the Court of Industrial Relations can enforce the provision of law relating to the protection of workers. This is not a question of arbitration. No arbitration is sought by the petitioner. The q'Uestion of separation pay cannot be settled in an arbitration proceeding. Since the very law fixed the amotlnt of compensation and voids its waiver, the matter cannot be the subject either by arbitration pr collective bargaining. Because, the arbitrator or the contracting parties may not fix other amounts and other terms nnd conditions different from the Jegal ones. When the "Mcsada" was awarded in the leading cases Df Sta. Mesa Slipways vs. CIR CG. R. No. 4521) and Plulippine Manufacturing Co. vs. National Labor Union CO. R. Ko. 4507) the Court of Industrial Relations did not act as an arbitrator nor do any arbitration. "No Court of the Philip11inC?S ' shall have the power to set wages, rates of pay, hours of employment, or cond1tions of employment", etc, <Sec. 7, Rep. Act No. 875). What the law wants is that the fixing of conditions of labor be lPft to collective bargairling. The petition for the payment of separation pay does not ask the Court of Industrial Relations to fix the condition of employment, since the Jaw itself had already fixed lt. What is M>ked b the tmforcement of the conditio?l o1 employment that is .'.l.lready fixed, II the mere adjudication of one month compensation amount.s to fixing the> condition of emr,Joyment, no court, not even the Supreme Court nor the Court of First Instance can award it, beeausc the law says 'no court' at all can fix the conditions of employment. In such case, in what Court may the agg!'ieved party bring his grievances'?" Eulogio R, Lermn, for the petitioner Diaz and Baizas, for the respondent. O R D E R Petitioner National Labor Union prays that respondent Malatc Taxicab & Garage, Inc, be ordered to pay one month separation pay to all its drivers who were dimiissed on September 10, 1954. Both parties agree that responclent is a commercial establishment operating a fleet of taxicabs under the Public Serv!ce Commission; tlrnt to operate said taxicabs, respondent had to hire drivers who were paid on commission basis of 25%, on the gr~ss earnings; that on September 10, 1954, said cars were sold to the Manila Yellow Taxicab Company and on the same date, the 360 drivers of the respondent were dismissed without giving them 80 days advance notice. Re:spondent moves to dismiss this case on three <3> grounds: l. That the petition states no eause of action; 2. That this Court has no jurisdiction over the case at bar; and 3. That the petitioning union hss no capacity to sue in behalf of the 360 drivers. I - Since the petition all<?gcs that the 360 drivers of the reEpondent were dismissed without one month notice on September IO, 1954; and that the r<!spondent, when required to pay them one month compensation, refused to <lo so, there is a cause of action 1:.ased on the provisions of Republi<' Act No. 1052, which was enected on June 12, 1954. The case of Lara vs. D~l Rosario (50 O.G. No, 5, 1975) is invoked, wherein the Supreme Court held that drivers of taxicab do not come under the provision of Art. 302 of the Code of Commerce, because they have no fixed salary either by the day, week or month, while the Code of Comrr,erce speaks of "salary corresponding to one month'', commonly known ao> "mesada." The cited case, being an interpretation of a law, which no longer exists, i!': not applicable W this case, because Republic Act No, 1052 is different from the old law. Said Republic Act reads ns follows: "Section 1. In cases o! employment, without a definite period, in a commercial industrial, or agricultural establishment of enterprise, neither the employ~r nor the employee shall terminate the employment. without serving not'.ce on the other at least one month in advance, December 31, 1954 THE J,AWYERS JOURNAl· 623 The employee, upon whom no such notice was served, shaU be entitled to one month's compensation from the date of termination of his employment. Section 2. Any contract or agreement contrary to the provisions of section one of this Act shall be null and void. Section 3. This Act shall take effect upon its tq;provul.'' Instead of "mesada'' thP new Jaw speaks of "one month compensation". This means that whatever may be the compensation, whether it is based nn a fixed r.alary for hours of work or bf piece work; or by commi,si:ion basis, falls m;der the provioion of the new law. Since the payment by commission it; also a f(lrm of compensation, the drivers in this cose arc within the scope of said Republic Act . II - <Although modified nnd supplemented by the Industrial Peace Act, Commonwealth Act No. 103 is still in force. The Industrial Peace Act, expressly t·ecognizes th-:! , Court <Jf Industl'ial Relaticiiis by declaring that when this Act uses "Court" it means the Court of Industrial Relations nnlcFs another Court sliaU be specified''. And instead of reducing the exclusive jurisdiction of the Court of Industrial Relations, thn new la'" amplified iL in cases related to unfair labor practice, certification election, investigatiim of internal labor organization proct:?dures, compliancce of Republic Act No . G02 and Commonwealth Act No. 444 and many other matters .. L-5649, P.S. United Mine Workers vs. Samar Mining Co., May 12, 1954, it n.?cessarily follows that it had also jurisdiction over al! iabor dispute involving a right granted by law such as the payment of separntion pay." <Memorandum by the petitioner, p. 7>. We conclude, therefore, that, when the one month !>eparation pay was demanded by the drivers and the 1·espondent refused to pay it, it became a labor di$pute cognizable by this Court under Commonwealth Act No, 103. III-Al! to the alleged union's lack of' capacity to rep1·esent its members, the mere enumeration of the labor organization's rights by the new law does not alter th.? right of !abor unions to represent its members recognized by Commonwealth Act No. 213 and sanctioned by a long practice in thi~ jurisdiction. WHEREFORE. the respondent\; motion to dismiss is denied for iack of merit; and said respondent shalt pay to each of said 360 drivers Pl20.00 as separation pay, based on 30 working days at P4.00 per day, which is the minimum wage fixed by law. SO ORDERED. Manilr.., Philippines, Nm·cmber !J, 1954. II CSgd.) JOSE S. BAUTISTA ANsociate Judge 'Ve find in the new law, not a provision expressly repealing 1'he Catholic Church Mart F'actory, Petitioner, vs. 'fhe Fede. Commonwealth Act No. 103, but a repealing clause worded in rntion of Free Workers (Building Employees Association), Respon. general term: t1er1t, Case No. 156-ULP, March 17, 1954, Lanting, J . .. Sec. 29. Prior Inconsistent Laws. - All acts or parts 1. COURT OF INDUS'rRIAL RELATIONS; UNFAIR J,ABOR of acts inconsistent with the provisions of this Act are PRACTICE; RIGHT OF THE EMPLOYER TO INSTITUTE hereby repealed." UNFAIR LABOR PRACTICE PROCEEDING AGAINST A We find also that the compulsory arbitration in the old Act, being inconsistent with the purpose of the new law, is abolished . and replaced by the process of collective bngaining. But this dues not mean that th~ whole C. A. No. 103 is repealed. Since "laws are repealed only by subsequent ones", <NCC Art. '7) not by mere implication, our duty is to reconcile apparently oonflfot.. ing Jaws. The question here is whether this Court can enforce the provii.ion of law relating to the protect.ion of workers . This is not a question of arbitration. No arbitration is sought by the petitioner. The question of separation pay cannot be settled in an arbitration proceeding. Since the very law fixed the amount of compensation anJ voids its waiver, the matter cannot be the subject either by arbiration or collecth·e bargaining. Because the arbitratnr or the contracting parties may not fix other amounts and other terms and conditions different from the legal ones. When the "Mesada'' was awarded in the leading cases of Sta. Mesa Slip~ ways vs. CIR <G. R. No. 4521) and Philippine Manufacturing Co . vs. National Labor Union <G. R, No. 4507> this Court did not 2. cct as an arbitrator nor do any arbitration. "No Court of the Philippines shall have the power to set wages. rates of pay, hours of employment, or conditions of employment, etc. <Sec, 7, Rep. Act No. 875\ . What the law wants is that the fixi:\g c.f conditions of labor be left to collective b'lrgaining. The herein petitioner does not ask this Court to fix the condition of employment, since the law itself had already fixed it. They ask for the enfol'cement of the condition of employment thal; is already fixed. If the mere adjudication of one month compensation amounts to fixing the condition of employment, no court, not even the SuprC"me Court nor the Court of First Instance can award it, because the law says "no court" at all can fix th~ conditions of employment. In such case, in what Court may the aggrieved perty bnng his grievances? Moreover, as the counsel of the petitioner rightly says: "if this Honorable Court has the exclusive jurisdiction to enforce collective bargaining contracts (the contract is the law between the contracting r:arties> which was recognized by the Supreme Court in G. R. No. LABOR ORGANIZATION. -Where the complaint alleges that on different dates the members of the t'espondent association coerced, threatened, and intimidated certain employees into joining said association in its strike against the said employer, it cannot bP. said that the employer has no right to initiate an unfair labor practice proceeding against the said Jabot• organization because the acts oomplained of certainly affect its interest. Furthermore, the provision of Seciton 4 (b) (1) of Rep11blic Act No. 875 which is alleged to have been violated is a verbatim copy of section 8 <b> (1) Ca) of the National Labor Relations Acts of the United States, as amended by lhe TaftHartley Act. The Reports of Decisions and Or<ler of the National Labor Relations Board abound with cases in which employers arc the charging parties in cases of unfair labor practice falling under the provisions of the American 13.w above adverted to. The propriety of the employer appearing as a party to an unfair labor practice proceeding in the United States, as far as can be nscertained. has not been successfully questioned. IBID; IBID; COURT AS THE REAL COMPLAIN ANT IN AN UNFAIR LABOR PRACTICE PROCEEDING. - It can be also said that the real complainant in an unfair labor practice proceeding is the court itself. Section 5Cb> of Rep. Act. No. 875 provides, among other things, that "Whenever it is charged by an offended party or his representative that any p~rson nas cng<1gcd o;,· is engaging in any such unfair labor praclice, the Court or any agency or agent designated by the Court must investigate such charge and shall have the power to ir.sue nnd cause to be served upon such person a complaint stating the charges in that respect .. , " Under this provision an offend. ed party or his representative may file a charge that a person has engaged or is engaging in unfair labor practice. Such charges must be investigated ~Y this Co:.irt or any agency or agent. designated b>· it and it is only after the investigation whf'n the facts so warrant that a complaint is issued and caused to be served against the offending party. Since the camplaint is issued by this Court or its designated agency or agent, ne.. cessarily it is itself the com9lainant. Of course, this may give rist> to the criticism that the Jaw makes this Court the accuser, G24 THE LA WYERS JOURNAL December 31, 1954 prosecutci!' and judge all at the same time. To o certain extent, sllch criticism has a ring of validity. The same criticism was levelled against the National Labor Relations Board as it followed the procedure prescribed by the Wagner Act. Even then, the procedure has not been successfully challenged in the courts as violative of the dlle process clause of the constitution. It was partly to obviate the criticism that the W a gr: er Act was amended by the Taft-Hartley Act by creating th<l' position of General Co}-lnsel who was made independent of the Board and given final authority in respect of invesitgation of charges, issuance of complaints and the prosecution of such complaints before the Board. It would be well if our Legislature would also introduce the same amendment to our law. S. IRID; IBID: UNREGISTERED LABOR ORGANIZATION AS RESPONDEN'r IN AN UNFAIR LABOR PRACTICE CASE. - It can be stated as a general proposition that a labor orgsni. zation need not be registered in o:·der to come within the purview of Sectfon 4(b), of the Industrial Peace Act. In the first place, if it was the intention (If the leY.islature to make only regisU:red labor organizations subject. to the provisions of Sec. 4Cb) it would have qualified the phrase "labor organization" with_ the word "legitimate". In the second place, acts falling under said Sl:!ction are generally committed during the time that a labor union is in the process of formation or organizat.ion and therefor~ prior to its registration . Jf respondent's contention is correct, such acts would be beyond the power of this Court to prevent. Worse still, a labor organizatiCln may continua1!y commit acts of unfair labor practice and yet, by simply not registering with the Department of Labor, render itself immune for the penalties and remeci.ies provided in the Act. Such a result would violate the spirit and intent of the law. In the third place, the argument that a labor organization cannot defend an action in its own name because it is not a legitimate labor organization would hold water only in cases of · actions or suits in which the subject matter is the Union's property [See Sec·. 24Cd)] but not where the proceeding does not im·olve any of its properties. Furthermore, an unfair labor practice case initiated under s~ . 5 is not an action or suit at Jaw nor j$i it a litigation between individual litigants for damages or other private redress. It is a public procedure for the .attainment '>f public ends anci not a private one to enforce a private right. 4. IBID; IBID; CRIMINAL COMPLAINT INVOLVING THE SAME ACTS IS NOT A BAR TO COMPLAINT FOR UNFAIR LABOR PRACTICE. - The pendency of a criminal complaint before the Fiscal's Office invovFng the same acts alleged in the complaint constituting unfair labor practice, is not a bar to an unfair labor practice proceeding. An unfair labor practice case initiated under Sec. 5 of Rep . Act No. 875 ia: not criminal or per.al in nature. The Court of Industrial Relations has already made a ruling to this effect in Case No. 4-ULP entitled, "La Mallorca Local 101 vs. La Mallorca Taxi'' and it was sustained by the Sunreme Co11rt when it dismissed for lack of merit the apprnl in.te1·posed by the respondent in thai case . Furthermore, to sllpport a finding of guilt in a criminal action, the degree of proof required is "beyond reasonable doubt." To sustain n finding that a person has engaged in unfair labor practice within the meaning to Sec. 4 of the Act, only subs.. tantial evidence is necessary. <See Sec. G>. Consequently, an acquittal in a t"riminal case would not necessarily result in dismissal of an unfair labor practice complaint based on tl1e same acts because of the difference in the degree of proof re.. quired in each case. Since no criminal punishment can be meted .out by this C'>urt in the pregent proceeding, respond!!nt has no cause to complain that it would be put in double ejopardy. L IBID; IBID; RIGHTS OF THE EMPLOYEES TO ABSTAIN FROM UNION ACTIVITIES IS GUARANTEED BY THE INDUSTRIAL PEACE ACT. - Sec. 3 of Rep. Act No. 875, as it is, fully guarantees to employees the right to refrain or abstain from any and all union activities as a corollary of its express guarantee that they shall have the right to form, join or assist labor organizahc.ns of their own choosing. This conclusion is supported by American precedents which have great persuasive efft>ct because of the origin and antecedents of our law. Jose W. Diokno, for the petitioner. Ramon Garcia, for th~ respon.dent. ORDER This is a motion of counsel for respondent praying for the d:smissal of the complaint filed in the above-entitled case by the Acting Prosecutor of this Court. The said motion is based on four g:-ounds which shall presently be tr.ken up in the order they appear in the motion. 1, That complaint is not prosecllted in the name of the rc.al parties in interest. It is claimed by the respondent that the employee:<J Catl:olic Church Mart Facto1·y had no interest in the present case and that the compalint should have been ir.stituted by the employees who claim that unfair labor p!'actic'!s ha,·e been committed agair:st them. 'fhe complaint 91leges that on differ:ent dates the meml>E,rs of the i·ef!pondent association coerced, threatened, and intimidated certain employees of the Catholic Church Mart Factory into joining s~id association in its strike against the said employer. Considering carefully tl1f' acts enumerated in the complaint, it cannot be said that the employer has no right to initiate the present proceeding because the acts crmplained of certainly affect its interest. Furthermore, the provision of Section 4 (b) (1) of Republic Act No. 875 which is a!Jeged to have been violated is a verbatim copy of section 8(b) (1) Ca) of the National Labor Relations Acts of the United States, as amended by the Taft·Hartley Act. The Reports of Decisions and Order of the National Relntions Board abound with cases in which employers are the charging parties in cases of unfair labor rractice falling under the provisions of the American law above adverted to. The propriety of the employer appearing as a party to an unfair labor practice proceeding in the United States, as far as can be ascertained, has not been successfully questioned. It can be also said that the real complainant in this case ie the court itself. SEction 5<bl of Rep. Act No. 875 provides, among other things, that "Whenever it is charged by an offended party or his representative that any person has engaged or is engaging in any such unfair labor practice, the Court or any agency or agent designated by the Court must investigate such charge and shall !:ave the power to issue and cause to be served upon such person :t complaint stating the charges in that respect . . . " Under i;his i;rovision an offended party or his representative may file a charge that a person has engaged or is engaging in unfair labor practit·e. Such charges must be investigated by this Court or any agency or agent designated by it and it is only after the investigation when the facts so warrant th:i.t a complaint is issued and caused to be served against the offending party. Since the complaint is issued by this Court or its designate.a agency or agent, necessarily it is itself the complainant. Of course, this may give rise to the criti .. cism that the law makes this Court the accuser, prosecutor and judge nll at the same time. To a certain extent, such criticism has a ring CJf validity. The sanie criticism was levelled against the National labor Relations Board as it followed the procedure prescribed by the Wagner Act. Even then, the procedure has not been successfully challenged in the courts as violative of the due process clause of the ctinstitution. It was pa.rtly to obviate the criticism that the Wagner Act was amended by the Taft-Hartley Act by creating the posilion c.f General Counsel who was made independent of the Board and given final authority in respect of im·estigation of charges, issuance C"! complaints and the prosecution of such complaints befnre the Board . It would be well if our Legislature would also introduce the same amendment to our law. It would haYe been better if, in ronformity with established Ame. rican procedure, this case was entitled, "In the Matter of Catholic D~ember 311 1964 THE I A WYERS JOURNAL 62n Church Mart Factrl'.'y and the Federation of Free Wol"lrnrs :ind Building Employees Associati::n." The fact, however, that the complaint was not so titled do'i!s n'.:t render it fatally defective and it may serve as the basi!" for t.h.-i continuation of the inslant proceeding without causinR substanti:'ll rweJudice to the parties conC'(:rned. The Court therefore finds the fi1·st groun<l as without merit. 2. TJ-;e Federation of Free Workers is not the propl'r respondent in this unfair labnr i::ractice Case. ThNe are two main reasou adduced in s;,q1port of this ground. The first is that it is only tl1~ Building Employees Association, a Jegitimatr labor on~anization, which has been representing foe unionized employees o{ the Cath.olic Church Mart Factoi·y and ne;rotiating with snid comp:rny, thereby in:plying that only said union could be made resp011dent an• .\ that "assuming that there is one: or two i:ifficers I)( the Federation cf Free Workers who committed alleged unfair labor practices then it should be only the:;e persons who should be chal'ged for unfair labor Practice and not the Fcdf.ration of Free Workers." The <;;ecoric: reason is that "the Federati.->n of Free Work~rs is not a legitinrntc labor orga11ization and therefore cannot defend an :oicti.on in its own name." As to the fin;t reason, if it can be shown at the trial on the merit that certain officer~ ·nf the Federation •Jf Free Workers C')mmitterl acts constituting unfair labor practice as its agents, then such acts would also be c~.n,,ider!!d as the ar-ts of the Federaticn, and an oJ"der may be issued 1"C.(JUi1·ir:g it tn cease and desist from Uie unfair labor practice and to take such affil'mative action as will effectuate the policies of the Indn:;trial Peace Act. If it can be shown further that the Building Employees Association i'l only an 1'.ffiliate of the Federation of FreP_ Workers, and that both of th.!m committed acts of unfair labor prncticc either by themselves or through their agents, both may Le made subject to the remedies provirled in the Act, The Court also con.'liclers the ~ecol!d reason as untenaOle. ln the first pl:lce, if it was the int<:mtion 'lf the legis)ature t1> make only registered labor organizations c:uhject to the provisions Qf See. 4Cbl it would have quaJifjed the pilrase "lnbor organization" with the \\"ord "legitimate". In the second place, acts !allin!? under said section are generally co:nmi.tted during the time that a labor union is in the p~·ocess of formativn or onr~mization and therefore prior tc its registration. If respond(:nt's cr.ntention is correct, t.uch acts would be beyond the power of this Co·..irt to prevent. Worse ~till. a lab,~r organ;zation JUay .:::ontinually commit acts of unfair labor practice am! yet, bv simply not re2'istering with the Department of Labor, render itself immunr for the penalties and remcc!ies provided in the Ar ~ . Su.-h a rrsult would vielatc the spirit and intent of the Jaw. In the thll'd place, the a!'gum~nt that the Federation of Free \Yorkers cannot defend an action in its own 11ame because it is not a. legitimate labor 01·ga1,1ization w;:iuld h:>ld wnter only in cases of actions .or suits lr. which the subject matter is the Union's property [Sec. 24(d)]. The present proceeding does not in\'olve :-..ny l'f its properties. Furthermore, :m ·unfair labor practice case initiated under Sec. 5 is not an ac~ion N suit at iaw nor is it a litigation between individual litigants for damages or other privat£ redress, le is a public procedure for t!ie attainment of public ends and not a private one k enforce a pri\'ate J ight. Summing up, it can be stated as a general proposition that a labor organization need not be registered in order to come within the purview of Src. 4 Cb) of the Act. 3. The .'llJeg-ed acts of unfail· labor pra~ticc complained of are the snbj2ct of criminsl 11roreedings in the Fiscal's Office of the Cit yof Manila. The pendency of a criminal com11laint before the Fiscal's Office involvi11g foe same nets alleged in the present ccmplaint as cont.tituting unfair labor practice is being invoked as a bar to tlie instant r.roceeding. Thi! nature of !l.n unfair lab.or practice proceecimg ha!l. been hereinabove dealt with and it would be superfluous to discuss it again st this juncture. Suffic2 is tc state that an unfair labor practice case initir..ted under Sec. 5 of Rep. Act No. 875 is not criminal or penal in nature. This Court has already mad,: a ruling to this effect in Case No . . 4-ULP entitled, "La Mallorca Local 101 \·.,. La 1\Iallorca Taxi" and it was 8UStained by the Supre1m: Court when it dismissed for lack of medt the appeal inb'!rposed by the rnspnndent in that case. Furtherr,10re, to support a finding of guilt in a criminal action, the degree of proof required is "beyond reasonable doubt." Tn sustain a finding t.lmt a person has engaged in unfair laOor practice within the meim!i1g to Sec. 4 of the Act, only substantial evidence is necessary. <ScP Ser. Gl Consequently, an acquittal in a criminnl case would not n,eressarily re!mlt in dismissal of an Ullfoir lalwr p:-acticl' com1)laint based on the sa:me acts because of the difference in thl' dc~p·el' rJf prMf required in each case. Since r.o crin~i1ial 1nmi~limC'nt can he meted out l·y this Co'Jrt in the JJJ:€sent proceeding, respondent ha.i no cause to complain that it would be put in double jeopardy. 4. Th<! complaint st&tPs Ill) .::ansc of action. In connection with this ground, respondent a~·gues th:it grantinll', without admitting, that tl1e acts enumerntcd in the complaint constitute restraint or coercion under Sec. 4<bl (1) uf the Act, they do not constitute nnfai!' labiw prac1ice on the part of a labvr orj!anization or its agents. As previously pointed out, Sec. 4 <bl (1) wai; copied from Sec. 8(h) (1) (a'• of the National Labor Relations Act 01· the Wagner Act as amended Ly the Taft-Hartley Act, However, as conel'tly pointed oUt by counsel for l'espondent, Sec. 3 of our law wus copied from Sec. 7 of the Wagner Act as originally enacted. that is, without the following Taft-Hartley amendatory provision: "and shv.11 also have the right to refmin from any or all such -activities except to the extent that such right may be affected Ly an agreement requiring membersliip in a labor organization as a ccndition of employment as auth01·ized in Section 8(a) (3). '' On the basis of this difference between our law and the Taft-Hartley Act, respondent argues that inasmuch as Sec. 3 of our Jaw does not e'.'-.pressly guarantee to employees the right to refrain from union activities, the violaiton of such right does not constitute unfair labor practice on the part of a labol' organization or its agents. After a very careful examination of this issue, this CoUl't is of the opinion that Sec. 3 of Rep. Act No. 875, as it is, fully guarantees to employees the right to refrain or abstain from any all union activities as a corollary of its express gUa!'antee that they shall have the right to form, join or assist labor 01·ganizations of their own cho£ing. This conclusion is supported by American precedents which have great persuasive effect because of the origin and antecedents of our law. "Although the latter right of abstcr.tfon from union affiliation was not contained in the original act and was newly introduced in legislative form by the ame·nded Act, this right was freely reco.1nized by the courts 7>r-for to the enactment of the aviemled A ct." CRothenberg, Law of Labor Relations, p. 35.'l, citing the cases of Tri-Plex Shoe Co. vs. Cantor, 25 F. Supp. 996; Magnolia Petroleum Co. vs. N.L.R.B., 115 F. (2nd) 1007; DeBardeleben vs. N.L.R.B., 135 F. (2nd) 13; N.L.R.R. vs. Superior Tanning Co., 117 F. <2nd) 881). "It has long been held that in making their choice, whatever it be, whether to join an existiJ1g affiliated or unaffiliated union, or to form a new union, or in choosfoy to abstain from fMning or aiding any ttnion, the empfoyees are entitled to the full protection of the.Act." (Supra,citingthecasesofN.L.R.B . vs. Ster1ing Motors Co., 109 F. <2nd) 194; Consolidated Edison Co. vs. N.L.R .B ., 305 U.S. 197; an.-1 N.L.R.B. vs. Schwarzt, 14G F. (2ndJ 773l. It will thus be readily seen that !:he Taft-Hartley amendment protecting the right of employees to refrain from union activities was only a legislative reiteration of a long-established doctrine laid down by the courts. WHEREFORE, the motion to dismiss ;}'.: denied and let the Clerk of Court set the case for hearing on the merits at 8:30 o'clock ::o.m. and 2:00 p.m. on March 22, 23, and 24; 1954. SO ORDERED. Manila, Philippines, March 17, Hl54. CSgd ) JUAN L. LANTING Associate Judge 626 THE LA WYERS JOURNAL Decembe1· 31, Hl54 (On ths question as to whether the famil11 drivers mav be con.. sidered house helpers within the contemplation of Article 1695 of tl.e Civil Code,) Mr. Ruben F. Santos Acting Chief Wage Administration Service Department of Labor Manila Sir : October 6, 195' This is in reply to your request for opinion on whether family drivers may be considered house helpers within the contE:mplation (If Article 1695 of the Civil Code which provides: "Article 1695. House helpers shall not be reqmred to work more than ten hours a day. Every house helper shall be allowed four day~' vacation each month, with pay .. , The above-quoted article is found in the Section o"n "Household Service'' (Section 1, Chapter S>. Commenting on this Sect~on, the Code Commission stated: "Domestic servr.nts in the Philippines have not, as a general rule, been fairly treated. x x x . Consequently, under the heading of 'Household Service' there are pro. visions to strengthen the rights of domestic servants." <Report · of the Code Commission on the Civil Code, p. 15.) The term 1to1tse helpeT wss therefore used in said section with the same connotation as the term domeetic servant. A "domestic servant" is one who renden such services in •nd about the employer's home which are usually necessary or desirable for the maintenance and enjoyment thereof and ministers exclusively to the personal comfort and enjoyment of members of bis employer's family. <See Anderson v. Ucland, 267 NW 517; In re Johnson, 282 NYS 806; In re Howard, 63 F 263,) It is truP that, ordinarily, it is not the family driver's job to takf' part in the care of the employer's home. But he does usually live there er, at least, must be therp to be available whenever his emplo}'er or any member of his family needs his services. His duties consist in keeping the car, and in many cases the garage, in good condition, and in driving his employer end any of the latter's family to nnd from work, school, business and social engagements, and other 11Jaces. Not infrequently, during hi~ stand-by periods, he is called upon to perform odd jobs or errands in or about the house . Ministering exclusively to the personal comfort and enjoymf'nt of the members of his employer's family, I am of the opinion that the family driver is a house helper or domestic servant within the meaning of Article 1695 of the New Civil Code. A motor vehicle driver is not unlike the family coachman ilf bygone days whose duty it was partly to assist in keeping the stables, horses, and carriages in good order, and principally in driving any of the carriages when the employer or any of his employer's family went 'out. Such coachman, it was held, was a "personal or domestic servant". Cln re Hownrd, supra.) Your query therefore should be, and is, answered in the affirmative. Respectfully, CSgd.> PEDRO TU..\,SON Secretary o!}-ustfce OPINION NO. 296 ( (On the questions as to what comprises ''a. day" under the Minimum Wage Law and as to whether the following workers are covered by the Minimum Wage Law: (1) Night club hostesses who do not observe fixed working hours and whose income dept.nd solely on the tips of customers; and (2) barbers working in a The Acting Chief Wage Administration Service Mani I a S i r : October 27, 1954 This is in reply to your letter requesting opinion on CP.rtain questions regarding the interpretation of the Minimum Wage Law <Republic Act No, 602). Your first query has reference to the hours of work a nonagricultural worker or employee must perform daily in order to b~ entitled to the daily minimum wag!! of four pesos fixed by said law. It appears that while the Minimum Wage Law fixes at "four pesos a day" the minimum wage for employees in non-agricultural enterprises, it is sill<nt on the number of working hours com~ prising "a day". This being so, resort may be made to laws of a similar plan or purpose. For statutes which have a common l.\.irpose or the same general scheme or plan should be construed together as if they constit~te but one act (50 Am. Jur., 846-347). Under the Eight Hour Labor Law <Com. Act No, 444) - which like the Minimum Wage Law, is designed to promote the ,welfare of the working men - the legal working day of any person employed by another shall not be more than eight hours Csec. lJ. An employee in a non.agricultural enterprise may not, there.. fore, be requi!'ed to work for more than eight hours a day to entHle him to a day's pay of not less than four pesos under the Minimum Wage Law, My opinion is also sought to whether t.he following workers are covered by the Minimum Wage Law: (lJ Night club liostesses who do not observe fixed working hours and whose income ciepend solely on the tips of customers; and <2J Barbers working in a barbershop operated by another who are paid on commission basis . Since the law under consideration requires "every employer" to pay the minimum wage "to each of his employees" (sec. 3), th1;; question is whether an employer-employee relationship within the contemplation of said law exists between said night cl~b OPfl'ra. turs and hostesses and between said barbershop operators and barbers, The definitions in the Minimum Wage Law of the terms "em.. pfoyee'' C"any individual employed by an employer", sec. 2-c) and "employ" ("to suffer or permit to work'', sec . 2-0 do not shed much light on the matter. However, courts usually consider four elements present in the relationship of employer and employee -namely, selection and engagement of the employee, payment of wages, power of dismissal and power to control the employee's conduct. And the weight of authority holds that, of these four, tho really essential factor i~ the pmver to control and direct the details of the work, not only as to 1he result but also to the means to be used. This is the ultimate test of the existence of the employer-employee relationship, <Sec. 35 Am. Jur., 445-447.) It is apparent that the night club operators neither control nor direct the hostesses on the details and manner of their work in the entertainment 'Jf night club patrons and that, having nc fixed houn1 of work, said hostesses may come and go us they please. They are, therefore, not employees of the night club operators. This conclusion is bolstered by the fact that the hostesses do not receive any wages from the nightclub operators, their income proceeding exclusively from customer's tips. With respect to barbers, we l'1nve observed from actual practice that they are free from the supervision' and direction of the barbershop operators on the manner and results of their work. December 31, 1954 THE I.A WYERS JOURNAL 627 The participation of the operators in the business cons·sts merely in furnishing the> shop, tlle chair, etc., in co11sidcration of which they receive a fixed percentage ot the income of each barber. My Yiew, therefore, is t.hat those barbers are not employees of t.he barbeorshop operatorl'I within the contemplation of the Minimuro Wage Law Respectfully, PEDRd TUASON Secretary of Justice OPINION NO. 298 / (On the question a.~ lo whether the Director of P.risons, in compliance with the vnler of Ille Co1trt of First Instance of llfa11ila in Criminal Case No. 280.Jt.i, entitled, "People of the Philippines t.'S. Alf0nso Tulaw:m alias Camilo Patakail y Mujcrgas" may transfer sa1'd Alfonso Tulauati to the National Mental Hospital in Man<ialuyong, Rizal, in spite of the .fact that he is at present in the New Bi/ibid Prison, Mirntinlllpa, Rizal, serving n final jru!gment) 2nd Indorsement October 28, 1954 Respectfully returned to the Dirc>ctor, Bureau of Priso11s Muntinlupa, Rizal. Opinion is requested "whether the Director of Prisons, in compliance with the ordet· of the Court of First Instance of Manila 111 Criminal Case No. 28055, entitled, 'People of the Philippines 'IS. Alfonsr> Tulauan alias Camilo Patakail y Mujergas' may transfer Said Alfonso Tulauan to the National Mental Hospital in l\landaluyong, Rizal, in spite of the fact that he is at present in tr.is Prison serving a final judgment imposed by the Court of First Instance of Cagayan in another case, the penalty of whic!-1 is from -" years to 10 years and 1 day imprisonment." "The consu\ta," it is said, •'is being made having in mind S.'.'ction 1722 of the Revised A<lmini.strative Code, whereby the President is the only official who may authorize the transfer of a Naticnal prisoner from· the National Prison to any other place of ccnfinement." Section 1722 of the Revised AdministratiYe Code provides that tile President of the Philippines shall "have the power to direct, as occasion may l"equire, the transfer of national prisoners between national penal institutions, or from a national penal instittlti0n to a provincial p1·ison or vice versa." But this provision does not apply. The applicable provision with respect to prisoners serving sentences is Article 79 of the Revised Penal Code, and the case of U. S. vs. Guendia, 37 Phil 33G, should govern cases of detention prisoners. Article 79 of the Re\·iscd Penal Code provides that if :;anity occurs while a convict iS serving his sentence, the execution of the sentence shall be suspended and the convict committed to a mental h'lspital. In U.S. vs. Gucndia, supra, it was held that it is the duty of the court to suspend proceedings aP.d commit the accused to an aSylum for the insane until his ~anity is restored, Prisoner Alfonso Tulanan falls under both situations; he is undergoing ttial for one crime and serving sentence for anothPr. The order of Judge lbafiez, t.hercfo1·e, committing this prisoner to the National Mental Hospital is legal and proper and shciu\d be complied with. lSgd.) PEDRO TUASON Secretary of J ustice OPINION NO. 3I6 / (On the qucsHon of the "existence of reciprocity" in the practice of engineering behvecn the Philippines and Spain.) 4th lndor.eement November 20, 1954 ncspcc\ful\y returned to the Honorable. the Under Scccretary of Foreign Affairs, Manila. Opinion is requested on the ql!cstion of the "existence of reciprocity" in the practice of engineering between tht> Philippines and Spain. More concretely, the question concerns the admission to examination and the practice of engineering of certain Spanish natii:mals, named below, in the Philippines . The Board of E:xami11ers fol" Chemical Engineers• withcld the rnting;; vf Mr. Pedro Picornell, a Spaltish national, who took the chemiN•J eni:dneer examination in J"uly, 1949, pending submission of evidence that the requirement<.; of section 26 of Republic Act No. 318 have been satisfied. T h~ Board also disapprovet~ the app!icat.ion of Mr. Manuel lgtrnl, another national of Spain, for ptrmissi011 to take the chC'mica\ engineer examination in J uly, 1951 upon his failure lo submit such evidence. The Board of Electl"ical Engi11eering Examiners nullified the examination for assistant electrical engi11ecr taken by still another Srani.:;h national, f.fr. J ose S. Picorncll, in February, 1951 and debarred him from admission to future examinations, until the prov:sions of section 42 of Hcpublic Act No. 184 W<")re complied with. The Board of Mcchnnical Engineerin~ Examiners withheld the ratings of a fourth Spanish ioational, Mr. Antonio R. E~teball, obtained in the junior n1l!chanical engineering examination of August 1953, 1 1ending the clal'ification of the provisions of section 42 C'f Commonwealth Act N0 . 294, and :;cnerally, of the question here under consideration. The actions of the several Ro:uds in all the above c!l.scs were based on theiJ" view that no "real reciprocity" exists between the PJiilippincs and Spain in the matter of the practice of engineet·ing. The Boards declared that there is dispal"ity or in;;quality bet\".rC'Cll the treatment accorded in the Philippines to Spa11ish engineers :-.r.d that meted out in S!lain to Filipino engineers. The inequality in the Board's view, consists in the subjection of Filipino engineers in Spain to the regulations of the Spanish Ministry of Lalor governing alien labor, while Spanish engineers in the Philippines who haw qualified undc1· our laws <.>re treated as if t"!:ey wne Filipinos . The Boards further specified that: 1. Philippine law docs not require the "commutation" of engineering degrees obtained abroad into their Philippine equivalents. Under Spnnid1 law, a degree secured abroad must first be •'commuted" by the Spanish Mi11istry of National Education into its Spanish equivalent . 2. The registratio11 certificate issued by the Boards in the Philippines is "general", "irrevocable,'' and "perma:1ent" in chan1cler, being revocable only on grounds provided by law. The "letkr of professional identity" or autho;ization to practice issued by tlit' Spanish Ministry of Labor is of an "exceptional", "revocable," ~n<l "tcmpor,IJ"y character", an<l may be revoked "in the ciiscrPtion of Spanish administrative officers ." 3. Spanish subjects in ihe Pl1ilippines, who have qualified, arP "by law" entitled hi a registration certificate and can always invoke the law to support their "right" to practice in the Philippines. Filipinos may practice their professions in Spain only as a "privilege" , in cas0 of denial of WHich, they can invoke no Jaw to sustain their "right" to practice there. (Sec the joint memora11dm11 of the Boards, dde 1 March 1954, date .1 l\far<'h 1954, p. 4, attached heret.o). Section 2G of Republic Act No . 318 (the "Chemical Engineering Law") approved 19 June 1948, section .42 of Republic Act No. 184 <the ''Electrical Engineering_ Law'·) approved 21 J une Hl47, and section 42 of Comnh.J,llW(:alrh Act No. 294 <the "l\fechanical Engineer may be admitt.cd to examination, O!' granted a certificate of registration or any of the rights or privileges uncicn· the several KCfS, tJP}css 628 THE LA WYERS JOURNAL December 31, 1954 "the country ,f which he is a subject or citizen permits Filipmo ('ngineer.<> to practice within its territorial limits on the same basis as the subjects or citizens of 3uch country.'' Jt will be seen that lhe cited statutes do not require "re· ciprocity" or 'parity" or "equality" in th'.! sense tha~ Filipino engineers in Spain must be accorded exactly the same treatment that Spanish engineers are given in the Philippines. What the statutes do require is that Filipino engineers in Spain be treated in exactly the same way as Spanish engineers in Spain are, that t~ to say, that no requisites be imposed on Spanish engineers. The statutory standard is satisfio!d so long as Filipino engineers in S11ain are treated as if they were Spanish subjects . Tho equality that must be shown is not between Filipino engineers ir. Spain and Spanish engineers in the Philippines, but between Filipino and Spanish engineers in Spain. Under the above statutes, therefore, the moment it is shown that the Spanish government exacts from Filipino engineers in Spain compliance with cr,nditions and requirements not simultaneously required from Spanish engineers, Spanish engineers must be regarded as disentitled to practice in tfie Philippines. Account, however, must be taken of a factor which has altaed significantly the legal situation above indicated. On Ma1ch 4, 1949, the Treaty on Academic Degrees and the Exercise of Professions between the Philippines and Spain (Philippines Treaty Series, Vol. 1, No. IV, p. 13) we.s signed. The exchange of r2tifications took place with article VI thereof, came iiito effect. Article Ilf of the Treaty provides thus: . "The Nationals of each of the two countries, who shall have obtained recognition of the validity of their academic degrees by virtue of the stipulations of th.is Treaty, can practice their professions within the territory of the other, by applying for the necessary authority to this effect from the Spanish Ministry of Labor or from the competent body or authority in the Phil· ippines, as the case may be, which authorities shall grant al.. ways the application, subject to the provisions of applicable laws and reg11latio11s governing alien labor and the practice of each profession, under a revocable permit, and the application sl1all be denied only in exceptional cast's for justifiable cause that affects personally the petitioner. The persons thus authorized to practice their profes11ions shall be subject to all the reg1tlafoms, laws, taxes and fees imposed by the state upon its nationals.'' The underscored clauses of the quoted article, interpreted C l·n. jcintly, result in this: that the Philippine government may subject Spanish engineerE In the Philippines not only to sue~ laws and regulations as are applicable to Filipino citizens, but also, and additionally, to laws and regulations that apply only to aliens. The spanish government is of course entitled to do the very same thing. Under the Treaty, each C.Ontracting Party may treat the nationals of the other Party differently from its own r:Ltionals. The fact that one of the Contractini Parties refrains from exercising its treaty right to mete out differential treatment to nationals of the other Party in no way diminishes the right of the other Party to do so. It need hardly be mentioned that the "applicable laws and re· {".Uiations governing alien labor" observance of which each Contiacting Party can require from nationals of the Other are not to be so unreasonable and oppressive as, in effect, to destrny the reciprocal right to practice granted by the Treaty. The Treaty does envisage reciprocity and mutuality in the sense that it entitles the nationals of each Contracting Party to practice their professions in the tenitory of the Other, subject only to such reascnable regulatioos and limitations as are authorized by the Treaty iti::elf. That the Treaty is inconsistent with those ear1ier statutory provisions appears evident. It is thereunder no longer necessary, as it was under the aforementioned statutory provisions, for a Spanish national to be entitled to take an examination Dr to prae.. tice engineering in the Philippines to show that the Spanish gov· ernment permits Filipino engineers to practice in Spain on eqllal t'1rms with Spanish subjects. To that extent, the Treaty, being later in point of time, is to be :i:egarded as having modified tho internal legislative acts. CSingh v. Collector of Customs 88 Phil. 867; Whitney v. Robertson 124 U.S. 190, 31 L . ed. 368; Cook v. U.S. 288 U.S. 102, 77 L. ed. 641; United Shoe Machinery Go. v. Duplessis Shoe Machinery Co. 155 F. 842. See also 2 Hyde, International Law [2nd rev. ed. 1945] 1463-1466). It cannot rationally be maintained that compliance with the sections of the laws on engin~ring requiring that the country of f\ foreign applicant treat Filipino engineers on the same basis as it-. own nationals may stiU be exacted on the theory that those st:ctions form part of the "applicable laws and regulations govern. ing - the practice of each profession" to which the Treaty subjects applications to practice in the territory of each Contracting Purty. The hypolhetical construction would render the Treaty an er.tirely idle and pl>intless act. For the Treaty covers precisely the same field as those mentioned sections of the engineering sta.. tutes and is inconsistent therewith. Examination of the Treaty reveals that the enforcement by Spain of the regulations complained of by the Board of Examiners is authorized by the terms of Trc2ty itself. The Treaty clause on "laws and regulations governing alien labor" has been menti1•ned above. As to the requirements of the Spanish Ministry of Education concerning · the "commutation'' of foreign degrees into their Spanish equivalents, article III of the Treaty requires that before nationals of each of tJi,e Contracting Parties can prac. ·ticc their professions in the territory of the other Party, they must have "obtained reoognition of the validity of their academic deg1·ees by virtue of the stipulations of this Treaty.'' Article I J>rovides in part: "The nationals of both countries who shall have obtained degrees or diplomas to practice the liberal professions in either of the Contracting States, issued by competent national authorities, shall be deemed competent to exercise said professions in the territory of the Other, subject to tho laws and wigulations of the latter.-'' .Article II declares, inter alia,, that "In order that the degree or diploma referred to in the preceding ru·ticle shall produce the effects mentioned therein, it is hereby agreed: "lst. That it be issued or confirmed and duly legalized by the competent authorities in conformity with the applicabl~ laws and regulations of the otlier Party where it is to be re· cognized. manes supplied) As to the other points of "inequality" raised by the Boards, that the authorization to practice given by Spanish authorities to :Filipinos is "exceptional", "temporary'' and "revocable" - it suffices to note that, by the Treaty, the Contracting Parties expressly agreed that. their respective authorities "shall grant always the a11plication,'' which application may be denied "only in exceptional cases for justifiable cause that ·affects personally the petitioner", but that fhe premis~ion to practice shall be a "revocable" one. And as to the last pomt that Filipino engineers desiring to practice in Spain J;an invoke no law to support their claim, it need only be obSf'rved that tliere is the Treaty itself which, as a binding infernational agreement, lays down the legal rights and obligations 01 the ·contracting Parties. <See Briggs, The Law of Nations [2nd ed., 1952] 868-869>. It may be noted that the Boards concede the right of Spain under the terms of the Treaty to require compliance with the regulations above mentioned. <See the joint memorandum, p. 3) What the Boards ao object to iS fhe inequality that results from the fact that the Philippines iloes not impose similar requiremE-nts on Spanish engineers here. It bearS emphatic reiteration <Continued on page 632) December 31, 1954 THE LA WYERS JOURNAL 629 REPUBLIC ACTS REPUBLIC ACT NO. 1060 AN ACT INCREASING THE PENALTY FOR THE CRIME OF MALVERSATION OF PUBLIC FUNDS OR PROPERTY, BY AMENDING ARTICLE TWO HUNDRED SEVENTEEN OF THE REVISED PENAL CODE. Be it enacted by the Senate anrl House of Representatives of the Pllilip]iincs in Congress crnscmbled; SECTION 1. Article two hundred seventeen of the Revised Peml\ Code is amencled to read as follows: "ART. 217. nfotversation of public /nmls or property- Prc. sw1iption of m11lucrsation.-A11y public officer who, by reason of the ciuties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent, or throu,gh nbandonment or negligence, shall , per. rr.it any other person tf..I take such public funds or property, wholly (,l" partially, or shail otherwise bC guilty of the misappropriation or malversation of such funds or property, shall suffer: "1. Tl1e penalty of prim"6n correccional in its me~iium and maximum periods, if the amount involved in the misa11prop1·iat,io11 N· malversation does not exceed two hundred pesos. "2. The penalty of prisi6n mayor in its minimum and medium periods, if the amount involn~d is more than twl> hundred pe-sos but docs not exceed six thousand pesos. 3" The penalty of prisi(m mayor in its maximum period to rcclusi6n temporal in its minimum pe1·iod, if the amount involved is more than six thousand pesos but is less than twelve thousand pesos. "4. The penalty of recfo.si6n temporal in its medium and maximum periods, if the amount involved is more than twelve thous:md pesos but less than twenty-two thousand pesos. If the amount exceells thE":: latter, the penalty shall be t·eclt1si6n tMnvoral in its maximum pniod to reclusion p€rpetua . " In all cas<'s, persops guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equa! to the amount of the funds malvnsed or equal to the total value of the property embezzled . "The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon dcmund by any duly authorized officer, shall be prima facie evidence that tic has put such missing funds or property to personal uses." SEC. 2 This Act shall take effect upon its approYal. Approved, June 12, Hl54. REPURUC ACT NO. 1083 AN ACT TO AMEND ARTICLE ONE HUNDRED AND TWENTY-FIVE OF ACT NUMRETIED THIRTY EIGHT HUNDRED AND FIFTEEN, OTHERWISE KNOWN AS THE REVISED PENAL CODE, AS A!IIENDED, BY EXTENDING THE PERIOD OF LEGAL DETENTION IN CERTAI N CASES. Be it enacted by the Senate am1 House of Representfttives of tliP Philippi11es in ConyreHs assem/,/etl: SECTION 1. Article One hundred and twenty-five of Act Numbered Thirty eight hundred and fifteen, otherwise known as the Hevised Penal Code, as amended, is hereby further amended to read as follows: ART. 125. Delay i11 the delircry of detained verso11s to the p·toper judicial authorities.~Thc penalties provided in the next nreceding article shall be imposed n1ion the public officer or empl~yee who shall detain any perwn for some legal ground and shall fail t.:: deliver such person to the proper judicial authorities within the r·eriod of: six hours, for c:rimes or offenses punishable by light penalties, or their <!quivalent; nine hours, for crimes or offenses punis~ able by correctional penalties, or their equivalent; and eighteen hcurs, for crimes or offenses punishable by afflictive or capital penalties, or their equivalent. SEC. 2. All acts, executive orders, proclamations, rules and regulations, or parts thereof, inconsistent with the p1·ovisions of this Act are hereby repealed or amended accordingly. SEC. 3. This Act shall take effect upon its app1·oval. Approved, June 15, 1954. REPUBLIC ACT NO. 1084 AN ACT TO AMEND SECTION TWO HUNDRED AND SIXTYSEVEN OF THE REVISED PENAL CODE. me kid1iapping and serious illegal detention. l He it enacted by the Senati; tmd House of Representatives uf the Philippines in Congress assembled; SECTION 1. Section two h•.mdred and sixty-seven of the Rc\"iscd Penal Code, as amended by section two of Republic Act NumbeJ"ed Eighteen, is lwreby further amenJ ed to read as follows: "SEC. 267. Kidnappin9 and ~crious illegal detention.-Any pivate individual who !'hall kidnap or detain another, or in any other manner deprive him vf hi;; liberty, shall suffer the penalty (If reclusion pcrpctua to death : "1. If the kidnapping or detention shall have lasted more ll~an five days. "2. If it shall' have been committed simulating public authority. "3. Tf any serious physical injuries shall have been inflicted u;,on the person kidnapped or detuined; or if threats to kill l'.im shall Jiave been madC'. "4. If the person kidnapped or detained shall be a miner, fr.male or a public officer. " The penalty flhall be death where the kidnapping or detenti()n \\.US committf'd for the purpose of extorting ransom from the v!c.fime or any other person, even if none of the circ11mstances above nientioned wer<' present in the commission of the offense." SEC. 2. This Act shall take effect u11on its approval. Approved, Junr 15, 1954. REPUBLIC ACT NO. 1096 AN ACT FURTH ER Al\·fF.NDING SECTION F IFTY-EIGHT OF ACT NUMRERED FOUR HUNDRED NINETY- SIX, KNOWN AS THE "LAND REGISTRATION ACT," TO FACILITATE DEALINGS I N LANDS SOLD BY THE GOVERNMENT PENDING APPROVAL OF THE SUBDIVISION SURVEYS. Ce it enacted by "the S enate nnd House of Representatives of the Philippines in Congress asscml1 lerl: SECTION 1. Section fifty.eight of Act Numbered Four Hundrtd ninety-six, !mown as the Land Registration Act, is her12by further amended hy adding at the end thereof ti<e following addition~ al paragrp.ph: "For the purpose of securing loans from banking and credit i11stitutions, the foregoing prohibition against the acceptance for registration or annotation of a sub!'eqnent deed or other voluntary inntrument shall not apply in the case of deeds of sale duly executed li~· the Government, or a11y of its instrumentalities, with respEoct t:: portions of landfl registei·ed in the name uf the Republic of the Philippines." SEC. 2. All 1aws and regulations, or i;arts thereof inconsist cnt with the provisions of this Act, arc hereby r epealed. SEC. 3. This Act shall take effect urOn its approval. Approved, June 15, 1!)54. 630 THE LAWYERS JOURNAL December 31, 1954 , 1954 BAR EXAMINATION QUESTIONS / ___ CRIMIN AL LAW I. State briefly what is the fundamental principle on which the right of the State to punish or impose coercive measures upon criminal offenders is based. II. Mention 2 circumstances of each of the fo1lowing classification: Cal justifying; <bl exempting; Cc> mitigating; <d> aggravating; and <e> alternative, III. What are the exceptions to the allowance of one-half of the period of preventive imprisonment undergone by criminal QffE:-nders? IV. In what cases the execution of the death penalty must bP. suspended? V, Ca> What arc th<:! only crimes punished under the Revised Penal Code for which the Court, in addition to the penalty attached by the code, may sentence or require the offender to give bond for good behavior? Cb) If the culprit fails to give such bond, shall he be DETAINED for n period not exceeding 6 months in cases of grave or less grave felonies, or not exceeding 30 d:\y!I if for a light felony, as provided in Art. 35 of the RPC, or shall he be SENTENCED to destierTo Cbanishment), as provided i'n Art. 284 of the same code? What is the reason of your answer? VI. Sam was prosecuted and found guilty of the crime of malicious mischief under Art. 329, No. 3, of the RPC as amended by Act No. 8999 of the Legislature and sentence to pay a fine of !'200, \·alue ~f the damage caul'ed, and to indemnify William, the offended party, in the sum of f'200, or to suffer the corresponding subsidiary imprisonment in case of insolvency, plus the costs. Sam has money to satisfy both amounts, but he is stubbornly unwilling tD pay them and prefer to serve the subsidiary imprisonment. Ca> Has Sam the right to choose between the payment of said amounts and the service of the subsidiary imprisonment'! th) Does not such .subsidiary imprisonment amount. to imprisonment for debt and is, therefore, unconstitutional? Reason out both anVII. At the corner of Rtzal AYenue and Zurbaran street, Manila, Peter and Paul stopped Alex and at the point of their respec· tive revolvers the former ordf:red the latter to deliver to them his wallet containing !"500 in paper money. Alex handed them the wallet and then the robbers went away in the direction of two detectivos who saw the misdeed from a distance and arrested the pair and seized from them the wallet and the money as weU as the two revolvers for the possessbn of which Peter and Paul had no license. The crime committed by these two malefactors is frustrated or consummated robbery? (bJ Could they be accused and convicted of a complex crime of robbery through unlawful possession of unlicensed firearms in accordance with the provisions of Art. 48 of tht- RPC as amended by Act No. 4000 of the Philippine Legislature? State briefly the reasons of your answers to U1ese two questions, VIII, Cal State the difference between the crimes of BRIGANDAGE and ROBBERY IN BAND. Cb) What arms or wea• pons the malefactors must carry to be considered as armed men? IX. John asked James to exchange him a check for the sum of Pl,000, and upon receiving this amount from the latter, John, with deliberate intent to defraud and for the purpose of cLusing the Philippine National Bank, against which it was drawn, to dishonor the check, executed the same by writing his signature very differently from that registered in the Bank. John had funds to meet the check when James presented it for collection, but, as it was expected, the Bank refused payment because the signature of the drawer was not his registered signature and John declined to Issue another good check or to return the money he receil'ed from James. Has John committed the crime of "estafa''? Sti:ite briefly your opinion and the reasons on which it is based, X. Blackmailing for the purpose of extorting money from the party threatened constitutes what offense? Under what cll\Ss.. if1cation of crimes does it fall in the Revised Penal Code? -----000--POLITICAL LAW I. State briefly the procedure to amend the Philippine Constitution until the pr~posed amendment becomes a part of the Constitution. II. The State may not be sued without its consent. In what form does this consent take? In other words, how may the plaintiff obtain this consent to file a suit against the State which must be attached as Annex to his complaint? III. An ordinance in the Municipality of X authorizes the Sanitary Inspector to seize rotten meat or fish offered for sale to be dumped into th& sea or otherwise destroyed. Is the ordinance constitutional? Why? IV. The mother of X was a Filipino citizen before site mar· 1 ·ied an Alien Y. Upon reaching the age of majority X elected Filipino citizenship in accordance with law. Two years later, , however, X upon the suggestion of his father, Y, registered under th(' Alien Registration Act of 1941 CCom, Act No. 653>. Is X entitled to acquire public land 01· to hold an elective Office inspite of his registration under the Alien Registration Act? In other words, is X still a Filipino citizen inspite of his registration under the Alien Registration Act? Give your reasons, V. Name three cxamPles of public corporation. How are public corporations created in the Philippine!' and by whom? VI. Give seven officers or officials of the Republic of the Philippines who must be appointed by the President with the consent of the COMMJSSION ON APPOINTMENT. ' VII. Give the composititln and the powers of the Electoral Tribunal of the Philippine Senate and the House of Heprescntatives, VIII. X drives his own automobile. The automobile suffers dnmages amounting to P250.00 because it strikes a hole une mrter in diameter and one meter dee1i in the middle of a City street in the City of Manila. X then files u suit for the recovel'y of P250.00 against the City of Manila, Will the- case prc..sprr? Give your reaIX. A is p1·oclaimed elected by the Provincial Board of Canvasers as Representative for the District B in the Province C in the elections of 1953, The election of A is protested and the protest was duly filed. QUESTIONS: (a) Can A take part and vote in the election of Speaker at the Inaugural Session of the House of Representatives? Cb> May the taking of the oath of Office of A be suspended immediately after the election of Speaker? Give your reasons. X. X is assessed !"500,00.00 income tax for the year 1953 by the Collector of Internal Revenue. X believes that the assess· nwnt is excessive, unjust and incorrect. State all the steps CAd· ministrative steps> that X may take to protect his rights. REMEDIAL LAW I, C 1) What are the ex<:eptions to the parofo evidence rcle? What are the reasons for the parole evidence rule? C2> "A" sold a par.-:el of land to "B" under n written contract ... In a litigation over the same property "C" CJffers parple evidence to the effect that "B" bought the land as his trustee or agent. Is parole e\·idence admissible in thiS' case? Gives reasons. December 31 196t THF. J,AWYERS JOURNAL 631 TJ . U) Under the Rules of Court, who are the indispensable JJ'!l;til; to an action? Who arc thl' ncccso;ary parties? (2) In suit for a foreclosurP. of mortgage, is the second mortgagee a nt':ccssary or indispensable party? What is the effect if the first mortgagee docs not include the scco11d mortgagee as party defendant in thr foreclosure proceedings? III . D~finc prej11dicial question . What arc the necessary ci(ments in order that a prejtdicial qne£tion may arise? IV. Distinguish forcible entry from unlawful detainn? State the two peculiar characteristics of these actions. Who may bring suit in each case? V. Und(.>r what circumstanccz moy tl1e testimony of a w1ti:ess deceased, or unable to testify, giYen in a former case between the 'samf' parties be given in eville11cc in another C8.se? VI. Cl) "A" was charged with the crime of physical injuries Upon anaignment, she ple~dcd not guilty. Subsequently, the Fiscal mo\·cd for the dismissal of the case. The molion was granted. Defense counsel said ncthing about the dismissal. Ten da)'S later, lrnother information was filed charging her with the same offense. "A" sets up the defr11se of double jeopardy. Decide the case, giving reasons. (2) Whm nre the i·ights of :;l person accused of a crime? VII. "A" filed an action against .. B'', r. railrnad corporation, for tl1e alleged neglig<:-11ec of ''B", 111 that "B" allowed its railroad track to become and remain 1)Ut of order. Thf' defects consisted allC'gedly of a broken rail and a defective switch which .:aused the train on which the plaintiff "A" was riding to be cif;'railcd, causing thereby injury to ''A'', namely, the loss of two hancls. A few days after the accident, the railroad c,irporation made certain repairs and alterations on the switch alleged to be <kfoetive . At the trial of the case, plaintiff tried to prove the ne;:::-Jige11ce of the defend· ant and the defective condition of the rnilroad track and switch by calling attention tc the repair and ::1ltf<ration cf the switch done b~· "E'' after the accident. It this evidence admissible as p1:oof of the negligenc.~ f!f the defendant.? Give rPasons. VJJJ. An information for homici<lC' wa" filed by the C;ty F1sc11l against "B'. and "C" . The prosecution has Jll'O\'en tlmt "C" ha:, in his possession a letter written to him by "B''. To prove the contents of snid letter the Fiscal p1·escnt12d secondary evidence. t0 which the attorney foi· tht> accused nbjectr·d on the ground that th(· prost!cution had not giver. prrvious not!cc of the prnduction of the lett~r . Is this objection tt!nablc? Upon what ground? IX. As a rernlt 0f a fistfo:dit, "X" is prosecuted for serious physical injuries. It so happened that Mii;s "Z" was present and s:;;w the fight and is one of the wiinf':<:ses for the prosecu:.ion. A week before the trial, .. X" manied ·'Z". May .. Z" be called to testify as a competent witness ag::iinst "X"? Has the 11rosecution a right to call "Z" as a witness or to show from her statements tliat the accused had married her for the Jl'Jrposc of suppressing her testimony? Give reasons for your answer. X. In a certain civil casl' filed in court, the plaintiff presented a wit!l.ess to identify a signature appcnring in a do:=ument. The attorney for the defendant, on cross-examination, propounded questions tending to show that the cignature was obtain{d by fraud. May the defenciant on cross-examinati1m be permitted to ask questions of said witness tending to pl'ove fraud? Give reasons. --oOo--LEGAL ETHICS & PRACTICAL EXERCISES I. State the substance of the attorney's oath. II. Write a sho~t paragraph on the statement that the practice of law is a profession and not a business. III. , Sta:i; ~hCi_ rule or principle governing the question whether or not an attorney may testify as a witness for his clie:it in the wry case he is handling. IV. For purposes of disbarmf'nt or suspension, what is m<lant IJy "moral turpitude". V. An attorney was required by the court of first instance b show cause why he should n.ot be punis\'ed for contempt of court. After answer and hearing, finding that there was sufficient cause or ground, the court suspended the atton1cy from the pratVice of law for six months. It the action of the court proper? Reasr,n. VI. Supplying the necessary details, draw a motion for new trial <complete in form) basCd on the ground that the decision of the court of first instance is contrary to law, such that the motion will i10t be treated as pro forma. VII. Draw a register:ible contract of sale with right £lf repurchase within five years, covering one parcel of land·, and complete in form, Supply the necessary details. VIII. In a certain case for the collection of attomey's fees. tht' unanimous opinion of three attorneys presented as expert witnFsses regarding the amount of compensation due to the plaintiff attomey, is uncontradicted. May the court disregard said opinion and follow its own professional knowledge? Explain. IX. l\Iay :111 attorney bi: suspended or disbarred on grounds other than those enumerated in tl1c Rules of Court? Explain. X. Is an attorney de officio appointed by the Supreme Court to defend ar. aceused-ap11ellant always bound to uphold the aJlpellant's innocence? Explain. OPINIONS OF THE .. • (Continued from page 632> then, that the Philippines may, under the Treaty, enact similar regulations and need not deal with Spanish engineers on the same bnsis as Filipino citizens . That the Philippines may treat Spani.;:h engineers more liberally than she is obliged to, gives rise to no legal ground for complaint against Spain for doing what the latter has an international treaty right to do . A party who may deem tJ1e actual operation of a treaty as . unduly onerous may decide to take steps leading to the modification rr even the termination of the treaty . But so long as a treaty remains in force - and there is no doubt that the Treaty here is in full force - a party cannot, without exposing itself to liability for an internafional deliquency, refuse to give it c(fcct. Pacta s1mt servanda is a basic norm of international law . (See Harvard Re,;:earch in International Law, the Law of Treaties, 29 Am. J . Int. L. (Supp.) 977 ct seq-.) Considering all the foregoing, I am o( the opinion that the Spanish nationals concerned arc entitled to be admitted to examination and to the practice of their profession in the Pl1ilippines. It may be observed that although Mr. Pedro Picornell took the chemical engineer examination on J uly, 1949, before the Treaty wrnt into effect, there appears no objection to the release of his giades and his admission tCl practice if those grades a.re satisfactory. CSgd.) PEDRO TUAS'JN Secretary of Justice LA WYER WAS SWEATING NEW YOR K. DPc. 14 lUP).-Assistant District Attorney James P. McGrnLlnn stepped tow:U'd the prosecutjon witnc"" and asked the routine t1uestion before settlim: down to sm·ious c:xumiuntion in Queens Coun~y com't l\tonday. "W.,rc nny 1u·omiscs mndc to you in e:xchan;i:e for your testimony nt th is td:i.1 ?" McGi·attan asked the witness, Jltjchacl Garcia, 24. Garcia's nnswcr was ~han> and clea1·. "Yes," he said. McGrnttnn wns ~tartled. "I was promised thnt the four fcl:iny rnps ngninst me wonld be dropped and 1 would a~t larceny on the other charge.'' Garcia said . Garcia, charged with folony and robbery, wns slated to testify that n 21-year·old youth. William Brown, hnd admitted killing his girl friend. ..,Vho made these promises~" dPmirnded the 11rosecutor. "You did," shouted Garcia. '"You <li<l "nd Assistant District Attorney Thomns Cullen." •·when? How?'' :1skcd McGr:1tta11. .. Do you want me to say I was promised nothing?" ~ncct"cd Garcio. "You wanl me to lie. and I refuse." He tossed two coin~ at the prosecutor. "llcre is your two tiieccs of silver," Ga1 ·cin snid . "I'm not Judas." McGrnttan " Sl•~d for a ncess. G32 THE LA WYERS JOURNAL December 31, 19!i4 ANICO, HERMINIO B. R-201 Samanillo Blda-., lhnil• ..Tel. 3--SS-H ONTO & IMPERIAL LAW OFFICES City of Legaspi CARDENAS, JOSE PEREZ 405 Avile1. Manila Tel. i-'11-86 iDACAYO, I.EON P. S uite 429. Fourth Floor Wm. Li Yao Bldg .• Manila 394 Baml>anJ;:" Ext. . Manila OALMACION, ALBERTO 'L. R-201 sa.mounllo Bldg., Manila. Tel. 3-33-64 l FF.RNANDEZ JR., ESTANISLAO A. 308 Samanillo Blda-.. Manila Dial: Tel: 2-92-09 Call: 4326 FRANCISCO. ALBERTO J. R-201 Samanlllo Bldg., Manila Tel. 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