RECE NT DECI SI ONS

l)hilippine Supreme Court

DE CIS ION CON DENSED

ACT 3688 - CO~STITUT IONA­L1TY-JUR I SDlCTlO~ OF THE COURT.

GDVE RN)IENT OF' T H E PHILIP. PI NE IS LANDS. plaintiff-appel. lee, V! . TI-1£ \'ISA YA K SURE­TY & I NSU HANCE CORPOR A­TIO N, dr.'fendnntruppcllnnt. G. R. No. 46HI;J , October 10. 193B.

C. N CEPC10 N , J.: On Octobe r 23, 193·1 an action was

bl'ought by the Pacit1c Commercial Company in the name ()f the Go\'­ernment ot the Philippine Island,. to l'e<:over a certain 8um of mOllcy fo r materials supplied to 1\1. de los Reyes. a conLract cr of 11 Government project in Cebu. flgains~ the appel­lant herein.

On the same date the COUl't or­dered all olher eruditol'!! of the said <vntractor to bc notified of the ac· tion. To that e(feet publication was orde red in "The Advertiser," 8 pape z' of gennal circulation in Cebu. The Luzon Lumber Comp:lny, J ose Ibtll'iCZ, a nd the Yutivo Sons Hardware Company appeared claim, ing various sums {or mntc!-:ah; sup­plied b~, them LO the contractor.

On Janua ry 30, 1!)35, the coun rendered it! decis ion ordering the defendant to pay lhe Yudoll! SUnlll­proved . On appelll, the defundllnt alleged that the court lacks juris­diction over the case, and that Act No. 3688 ill unconstitutional.

The alleged lack of ju r isd iction was based 011 t he Collowi ng grounds; (a) that the pre!entatioll of the ac­tion is prematm'e ; (b l that the pro-

cedUl'e laid down by Act ~o. 3688 for the usc of the name of the Go\". cmment or the PhiliJlpine Islands has not been followed; (c) that no notice was sen'ed or; the cl'cuiton ; (d) that tb~ notice was not pub­lished ill any newspaper; (e) that the order oC October 23, 1934 is il­legal; and (f) t hat the conlraetol', M, de los Re)'es has not been includ­ed as party defendant.

(8) The appellant contends thuL s ince tht.! j)el"i::<1 of six month:! d ur o ing which the Gov\'l'nmt'nt rna) bring an action in its O .... "TI name hud not yl'L " lapsed, und since the Gov­ernment had not cxpnssly waived its right to institute Iln action 011 the pi'!nal bond. nor authorized the cr('d­hOI'S to bring the actioll, thc action in.!!tituted is premature. It is a fact. however, tha t on St!ptcmber 10, 1934, [he Di~trict Engine<'r of ~bu <Ii­reNe<! a letter to the Pacifk Com­mercial Company authorizing it to br ing the present action against M. de lol' Reyes. Without deciding whether this letter is an express woiver all the part of the Govern­ment or its r ight to institute the ac­t ion, then is howc\'cr, the fact thal U Jleriod cf more than sh:: month s had elapsed from and since the ac­ceptance o( the tlnished work on July 8, 193·1 until the order of Jan­uary 30, 1936 was rende red. Act N(l. 3688 pl"e.scrves in favor of the Government a right of preferem:e within the period ot !;ix months fol­lowi ng the acceptance of the work. Without the Government's present­ing Bny action against the appel.

, <0 PHIL IP P I N E LAW JOURNAI~

tan t dudng this period or any t.ime nflcrwul'ds, it is evident. that ~hc

GOVc.tlHllc.nt had 1(lst its righ\. of pl"cfel"cncc over the cl'editors for la. bor and materials ~ut>plicd "

( h) The contcntion that Ihc 1')'0-cedul"e laid down in Act Nc, 3688 regal"ding the usc of tile name of the Government. In!s not been fol· lowl.!d, is refuled by what has been sai d above. 'IV€; only ndd th:lt. ll:e office uf the Distr ict li:ngineel' of Ccbu is the I"epresentntivl.! in Cebu of the Bureau of Public Workll of the Go\'el"nment. The letter of the DistJ"ict. Engineer should be consi­dered as a eommunieation sustained by the nuthority of the Dil'ector of P ublic WOl"ks.

(c) Another reason alleged is that )] 0 noti ficnti ol1 persona l 0 1" othcrwise \\";'5 made to the Cl"editol"~" As sta t· ed by the lowel" c!:Ul"t, any objection in this l'espect can not favor the defemhlllt. The legal prOVISIon which l"cqll i1"l~s sa id notice is fO l" the llt o!ectio1l oC tlll~ creditors of th l.!. contl"aetOl", and thCI"efol'C the only parties who ean I1Hlke the objccti \' n"

ttl) The appellant contends fur· tlwrntore that the notice according to A ct Nn" 3688 should have been Jlublished in some newspa]lCr of gen. e l"a l cil"culntion , ilnd the Ol'del' was publi shed only- according to appel­lanL--ln one papel" "The Advenis· e t"" We believe t hat this is suffi­cient, bcc~Hlse, al though there are morc than ()n ~ newspaper in Cebu, th~ law rlocs not l'cquil'C llublieution in more than onc paper,

(e) The ordcr of Octobcl" 23,193 1 notifying the CI"editors of thl! att iClIl, l~ daimed illegal in having fix ed F'~bnml "y 13, Ifl35 liS the h.'lt day fo r prescnting cla ims, whe !'cns Act No" 3G88 provides that such claims can be ]lre!lentetl IInytime within onc velll" fl" : m the day the work was ac· ~"<!f)ted by the GovCl"nmenL If there Wa9 an)' anomaly in this ol"dcl", it

is no~ the de.fendant that has the right to a llege the same as he Was not p)"ejudiced in :my manner" ft. is fUl"the," claimerl thnt the o)'uc.r Of Oetobc," 2:1, 1934 i~ j urisdictional and s ince the order is null ub i)l i ti; the court ncvel' acqu il"ed juri~<lic.

t ion over this case" Since the 0 0'(1 1.'1'

wus pub!hdled in the form pre. scribed by the law, we believe t ha t t he),e was substan tia! compliance al. t hcugh the period' fixe d fOI" th" p)'e. sentation of claims had been CUt. tailed. I t ill also claimed that the extens ion o[ the period fOI" the p I"e. "entnt.ion of clai11ls aftel' Febl"ua)'y 13, 1!)35 without publication of said extension causer! the coort to lose its juz"isdietion over the casc, We believe th ;.! t onee jul"isdictiun Ili ac· (lulo'cd by the cuo)'t. any ho"the l" ex­tension is no long-er jurilldictional as long us it is wi.hin thl' pl!ril,Jd of one yeal' set. out in Act ~,; ~8.

(r) The last defcCl all el;~d-tlm,

t h(, contrnctur has not been includ­ell as pal"ty defendant- is of Illel'it" But it is sufficient tu call a tten tion to tht:' pr~visions of the penal bond which makes the conn'actOI' and de· fen dant joint l~' and severall y liable" Undel" articles 1830 and 1831 of the Civil Code, the defendant. as:\ lime· ty, ca ll be compdled to pay lit £! c)'cd· ile"):'s without first exhaust.in" the dcbtur's ill"Operty, when, as in this case, the defembnt bounrl hirn~elt Sillid;u"ily wi th the debtol"" (C!l nt:\ · lOU de Conlercio VS . Puu Tj' Ching l /j JU I'. ViI.. 4 11: Inchau sti y Cia" vs" Yul ~ 34 JUt" Fil., 1027; Jaucian VII" Querol 32 J ill'" Fil., 750; and FCl"l"Cf vs" Lopez y Santos 56 J Ilr" Fit.. 644.)

Tn the contenti))n of the appel· lant that pe l"son~ not. pa)'t"lcs t.o the conn'ad of l'urety have no right. of action ag:ainst the sUI'et.y we cite the provision ct Act No" 3688 under wh ich it is expre!;lIly pl'ovided that "all petsons, companies 01' corpora-

RE CENT DE CISION S 3<1

tions who had fur nished labul' or materials pnymen t fol' which had not been made shnll hnvc th!: right to inter vene and be made pur­ty to any action instituted by t he Goverlllncnt of the Philippines."

T he olher error alleged is the fail­ore of thE' ~oul'l to dee\aJ'e Act No. 3688 unconstitutional, and in not having thcl"!'.foJ'c dechu'ed the penal bond null and void. Appellant cla ims that Act No. 3688 obliges the contra~lor to present n penal b;m d not on l~' in (avol' of the Govern­nJent., hu t also in favor of those persons who supply him with lab:)}' und mutcrials, T his is ch,imcci as d ass legislation in thut the same 'pri vilcge is not ex tended to persons who likewise supply labor lind rna. terials in cases of privnte cont!'!lcts. Appellant Jurther claims that the law im rail's the obligation of con· tract in that. it concedes favors t u

persons not part ies to thc same.

Both contenti ons arc u ntenable, The Government ill said law obliges all thos~ who contrllct with it to fil e

a bond under ccrtain terms an d con­ditions, wi t hout exempting [rom thig obliga tion any contractor whatso­ever, T he G~ verllme l1 t PI'otccts it-­self whel1 it imposes this obligation ; and likewise Pl'Otccts itself when it extends the bUild to COVCI' whatever claim third persolls may have IIgainst the cont.'actor by virtue of labor 01' materials supplied , The slime privilege is not extended to contracts bE'twecn private Ilersons beca use the pal·ties il1 ll rivntc con ­tracts c\lght to know how to pl'Otect themselveJ; in II ma nner which they believe best for their illterests,

No)' can it be sllid that the law impair!:' the obliga tiol1 of cont ract becaust! it docs not in effeet change

or al ter the te rmJ; of the contract. And in th is respect the law i ,~ not uncons t it u.t ional.

111V}Joirme1lt of Obligat'io'lI_ fl . in gIJnc1'al, Any enactment of a legis­la tive churacte!' is said to 'impaie the obligation of a contract which attempts to take from a paJ'ty a tight to which he is enti t led by its tCI'lllS, OJ' which deprives h im of the !TIcnns of enforcing such a l'ight. B llL it Illll).' be said in general th a t a law which does not lill'ike at thc vitality of a contl'act either by al­tering its terms 01' preventing its IHe~ervation and enfOI'cement doc!! IlIlt impaiL' its obligati~n * • * (12 C, J , 10(,6,)

"A law rives not impni r the oblig-a­tion of a cuntract within the menn_ ing of the COl1stitution. if neither pal'ty is relieved theJ'eby from per­forming anything of that which he obligated himllclf to do, Bilt if eith­er pal'ty is abs- lyed f rom perform­ing any (If lhese thing!!. such obliga_ tion is impaircd, wh e'thcr, absolu­tion is affected dil'ectly and express_ ly OJ' indiJ 'ectly, fllld only as the l'c· !lult of some modification of the le­gal proceedings fOI' enforccmcnl." State ex J'el. NlI tional Bond & Secur­it~, Co, v. KrahJn(:l'. 105 1\[illl1, 422, 11 7 N , W. 780 , 21 L, R, A. (U. S,) 157. Footnotes, I COOley's Constitu­tional Limitations p , 583 8th Ed.

In the light of the abo,'e dot:trines we do IIOt see how the appelllln t can

st ill maintain that the law alters

the cbligatioll of contract. when sai d luw docs not infringe uny right aris­

ing from the bond, nor uffeet /lny of the means of making effC!ctivc

thc rights therein,

Neither of t.he othel' enOl'S al­kged are of merit, J udgnU'nt af~

firmed with costs. against the appel_ !un to So ordered ,

(Avnnceitn C. J ,; Villa· Real, Abnd San tos, Impel'ial, Diaz, Lau­re! •• J. .J. . concu rr ing.) COI!<ic;Hsed /'11 'VIl,J,\A M E, Dy LtACCG.

342 PHILIPPI NE LAW JOURNAL

DIGEST OF DECISIONS REAL EsTATE l\IORTGAGE~INCI.U_

SION' Of' SUBSEQUl:!';"T MORTGAGES IN

F01U';CLOSURE OF PRIOR l\IORTGAG&­

EF~'ECT OF PAC'!" DE NON AI, IENAf';OO.

-Gj'c,'1Qr iQ de In Pa::: & ana(/flhlpe Sa11 ti,,"te:illlll, flPlllicmLt-ap]1flllrU! t8, V8. ,If(!cornlrOIl & Co., Inc., o'{J'lJolJilo)'.. appel/ee, C. R. No. 441)72, Oct. £8, 1938.-The lowe" court, upon mo. tion ci the appellee, set aside its decision of December 11, 1933 01"­

det'ing the registratiOll of the iUllds in question in favo1' of the appel­lants; and nfter trial, decreed the inscription of auid lands in the name of ihe opposiim", According to the stipulation of fat'ts. d~c lands original!y belonged to the spouses Baltazat' Raymundo and Agapita San Juan; the lands were mort­gaged to appellee on June 20, 1!l24 t o guarantee the payment of P5,OOO, t1\e mortgage deed being duly t'eg­istered; Oil MaJ'(~h 26, 1928, the ~ame lands wen' sold by the ol'igi!ll.tl own­en; to Ambrosio Santiesteban and Benita Lambengco, the deed of sale being likewise registered; appellee sue!\ the original OWnel'S on August 20, 1930 ior the payment of the debt, which the latter were sen­tellced to do on January 30, 1930, to satisfy the judgment, the lands were sold at public auction on Apl'il 16, 1932 to the appellee itself as the highest bidder, the sale being a p­pl'oved by the court; upon the death of Benita Lambengco inte~tate pro­ceedings wel'e instituted, and the 1:11lds in c()nlrovel"!~y were adjudi ­cated to the widowCl' by virtue of a partition deed duly a plJl"oved by the ccurt; Ambrosio Santiesteban sold the hinds to the applicants on Nov, ember 29, 1932, the deed ot sale being also ]'cgistcred, The "1.dal COUI·t denied th(' motion of the np­pellant fOl' II new hial. fi eld : (1) The contention of appellants that the forec!osu]'e suit instituted byap-

pelleI' against the original owners, as well as the decision therein, can_ not affect them, because t heir pre­deceSsors in interest, who were the owners of the lands at the time of the foreclosure case, were not ill_ cluded in snid case as requil'ed by Sec, 255 of the Code of Civil Pro­cedul'e, cunnot be sustained. In Sun Life AssuranCe Co, (If Canada v, Flol'cncio Gonzales Oiez, 52 Phil. 271. it was held that the second mortgagee, altho not an indispe!Jlla_ ble pru'I>- is however a necessnry party to the foreclOSUl"e suit insti­tu ted by the first mortgagee; this doch'ine was reiterated in Govcl'n­ment VS. Cajigas, 55 Phi!. 667, the COUl"t further holding that the fail­ure to include the second mortgagee deI'S not annul al! the fOI'eclosure proceedings hut results in the pre, servation of the equitaUve l'ight of l'edemption of the second mortgagee, T he same JlI'inciples should apply in the case of u PUrchAser of rcal prop­erty preYiously mOl'tgaged , whielJ. pUl'chascl' also possesses an interest in the pl'llperty subo]'dinate to the prcfel'cntial l"iJi.:"ht of the mortgage creditor. The failure, therefore, to include the predecessors in interest of the appellants as dEo!fendunts in the forEo!closure proceedings did not invalidate such proeeedin!;"s, but solely resulted in the preservation of the equitalive right of redemp­tion of the applicants, (2) The sti­pulation in the mortgage deed in favor of appel\ce knuwn as the pact de non ulienando, obliging the mort­gagors not to seU 01' encumber the propel'tie~ mortgaged without the writte.n consent d the a ppellee, did not cause the annulment of the sub­sequent sale. mude by the mortgage debtors, but served to authorize the Illortgugt!c to proceed directly against the mortgagors, without necessity of giving notice to the

RECE:"!T DJ.;C ISJON S 3<3

purchascl' 01' including hinl as de. fen dant, ( 47 C. J . 708; Avcgn:l VS, Schmi dt, et ai, 28 L. Ed" 976.978; New Orleans National Banking As. sociat ion v. H, D, Le Breton ct al., 30 La E d .. 82 H;Z4; Citizens' Bank of Louisiana v, 1IIillel' et aI, 10 S, R ep., 779·782), (3) No CI'1'(I]' was committed by the lower courl in denying the motion for nell' tr ial. because altho the pI'oof cffel'ed \\"e l'e admitted and even if it wel'e re· garded as newly discovered, which is not the case, the same would not hnve in fluenced the resul ts reached, since there is no clear and convin. cing pl'oof that the debt of lhe spouses Raymundo had bcen paid, and therefore the mortgage conti· nues valid and binding, (,I) Neith­er was it errol' to set as ide the j udgment of Decembe)' 11 , 1933 be· r OI'C the same bec:mHl final, bccuuse in the light of the facts stipulated, the reopening of the judgment.. was inescapable. The ends of justicc re_ qui red that oppOl'tunity be gt'anted to the appellee to be hea t'd , 'fhe lands in controversy should be reg· istcrl'd in the name or ttPpe1lee, sub· ject to the right of l'edcmption by the applicant-appellants, J udgmellt mod ified, (Pe l' [mperia l, J, Avan· ceita , C. J" Villa.Rcal, Abad Santos, Diaz, La ut'el and Concepcion, JJ" concu rring, ) B,'ie/cd by RAl-'AU C,

CL.HtACO,

C RIMINAL PROCI,;DUJU:.-RIGHT 01-'

CoMP LAINANT TO ApPEAL FRO~I AN OnDER DISM ISSING CASE.- P eojJ/e 0/ tile Philippines VII. All/ollio Rataller, a ccWled.apIJellce; COllsltwcio BarcQ­ma in. briHl1/ 1)/ hill (/Olluittel', SO·

CO'N"I) Barcomn. I)/ff;l.lld,'(/ 1XO·ty and appcllan,t, G, R, No, -'55-'5, Octobc,' £8, 19,'l8.-·This is nn appeal from an on\er of the court of fil'st in· stance dismissing the ca se against the accuscd Bataller_ Upon com· plaint. fil ed by Con~tl\ncio Bal'l~oma

in behalf of his mino!' daughter So­COITO Bal'coma, the appellee was tried and convicted by the justice of the peace court of slight physical injuries, {rom which judgment np­l}ellee appea led to the Cou l't of First Insta nce, The cnse thus pending on appea l, the acting provi ncial fiscal filed II motion Iisldng fol' the dismis­sal of the case 011 thc groum\ thnt BatAlIel' w as not cdminully liuule for the act romplaincd of. 1'>1:.: tion gmnted and cuse was d ismissed with costs de officio. Constancio Sarco­ma then nloVlld fOI' a reCOIlgidel'a· tion of the ordcr of dismissal, but motiOn was dcnice! , Hence this ap­peal. Did the c:.:m't below er,' in dismissing the case? Jleld: It did, F rom the r elevant provisions of law (Sec, ]07, Code of Criminal Pmcc­durc), it is cleal' that the person claiming to be injured by the com. mission of an offense hus the right to be heard a t all stages of the cuse, and he can appeal fl'om any decision denying him that l'ight, The ca.;c was di smissed by t he cou rt bel Dw without giving the injm'cd party op!ll,rtunity to be heard, thus being depl'lved of th!! riKht granted him by th!! codnl pro,-igion5 ll.bo"c cited. llis right to appeal from the orde.r of dismissal is cleal', 'I' his conclusion is in tine with thc deci­sion of t his court in Gonza les v, Judge o{ the Cou r t of First In, stance of Bula can et Ill.. G, R. 45233, T he Cl' ime of phys ical injuries in­volves civil liability, and the in. JUI'cd party hail a J'ight to prescnt evidenc(' to 6UPPO I't a claim for dam­ages. Onler appealed fr0111 set aside, (Per Abad Santos, J " Avun­rcna, C. J " VilIa·Real, Diuz, Lau rel il ild Concepcion, JJ" concurring, Briefed by RENATO D, TAYAG,

ClUM U-"AL LAW-SU BORNAT ION o.~

P EIUURy- ORDEn OP D ISM ISSAL--Ap .

PF.AL BY PHOSECUTION,- P cople Qf the

<144 PHILIP P INE LAW J OUR NAL

Philip/,i'lU. l,fui1l-,i//-aJl1>eifllTlt VR. f;r", ;ni/t PI/dol fm.ti Alblll'lO /(l!yl!fJ, de/endill/te. AlUfrto Relies, de/fnd­(IIIt·aPI/ellett. r;. R. No. /,5618, Octo­bl!l' 1,., 1!<3S,- T he defendant!J were accused of the erin\(' of perjury, The Fiscal petitioned the tl'ial COUI·t­

to dismiss the Clise agH inllt El'mi n ia 80 that she might be used as 1\ wit_ ness for the prosecution. The peti_ tion was granted. When the. ll'ial against the other defendant wall re­sumed, he! petitione!d for 11 di~miSIlilI

of the case CII the foll<lwil1g gl'ounds: 0) That inllsmuch a, h~ wns onl~' being accused a s No prill' ci lIa] by induet'ment and C{lopcratioll, he could no lunge" be pro!ieculed bc. cause the JlC/'son who took direct l'lll'~ in the act complained of har! been exclude.d fro m the compll\int: ane! (2) That the Revi !!ed Penal r elic does not punish SUOOl"Tlation of IIt!rjul'Y. Without conllidel'ing the 2nd I,;"I'o,lIId. the tdal court issued 1111 (wdcl' dismissing" the cl\~e sus­taillin~ the 1st jtround of the Ilet i. tion, The FI~cal apl}eal~ [l'Om this order of dismi!isal. The !lllllellee, now chims that the ol'de!" appea led f ,'om is an order dismissing" the cllse 011 the mel'its a nd is a bu r to an nppeal by the PI'cscc\ltiol1. Held: The Qrdel' appealed from is not a dismissal all the merits rOl' two I%"I"0Ulld>l: (1) H aving withdrawn his plt'a of guilty and not hal'ing made a pIc:! when the o l"der was iellued, the sunlC can not be considered as n di!'lllillsal on the mel'itll. (2) An ol'{l(>I' of dismissal does no~ finally Hblloh'e the accused and is I\ppepl­able. (Article 44 Gell. Orders No, 58 ; U, S. v, Ballentine <I Phil. 672). As ]'cgards the two gl'ounds alleged bv appellee in his petition for d is· mi!'sn l liIed in the trial com·t. i'/rld:

( I ) Exelu!iion of the accused Ermi­niu fOl' the purpose of being ulled a!l n ~)\"ernmenl witne!!lI docs not affect. the IItnt1UJ of her co_accul\ed.

It docs not mea n that lIhe is inno­cent c:f the crime chnrged but that she appears to be the lells guilt)" and her testimony nccessary to pro­S()l!ute those mon.' guilty, (U. S, VIS.

Abanzado 37 Phil. f>58L (2) Ad­mitting thut Act 1697 which ex. pressly pu nished !:IUbOl'nlltion of Jll.'t'­

JUI'y had been repenl('d by the Re. viscd Penal COlic, yct section 17 of the same Code. enunHn'ating the IJer­Ions guilty as principab, i~ !lutfi. cienlly clear 011 the mntter. Acts l.'OIl!;t ituting subornation or Jl(!rjul'Y are the same itS those constituting inducement. Furthermore. the ap_ pellee is being accused not only fOr subornation but for mnterinl coop­n ation. I n ('ithe!' ease, he comes undt'\" the lUlIt two pRl'ngraphs d Article 17, Heviscd Penal Code. Order appealed from I'e. versed, and case N!munded to hwer COtll't for furLher proccedin~,

(Per­C.J.; perinI. ring,)

Concepcion, J.; A vnnccna, Villa· Heal, Abad Santo'), lm­

Diaz, L:lIlrcl, J, J., concur­BJ'kff(1 I,., DlOscono SARILE.

C!lIMINAL L AW AND PItOCrntJRE­

MURDt;n - CONSI' IRAC Y - CALU:o;'C

Nt;w W 1TNt;SS,-Thl' J>f1(1JI/O (1/ III1J PhiU/II,illfS, pl"i/lri//.a111Ir/lcfI VB,

Duit/eric de. Clls'ro y f~(IUa IIt,d Anfll.tacio Rllyca SI/vt;I'(l, dl'/ell(/(Hlt­(l.llpdfrJII/::f, G. R, No. -,6118, Or/cbel' 21, 19'!8.-From n judgment or con· Yiction by the trial CO\ll't, for the crime of murder the dC'fendants, now nppcal, making the following aS8iynment r.f errOI'~: ( 1) In per­mitting the Fiscal ovel' the objection of the defense, to call at thC' end of the tl'ial II witness not included in the list contained in the infornla­liQ:I: (2) 1'1 hol(rng th;t the crirnr was qualified bv treachery: and (S! In holding that there was c:onsrll-racv between thc accused and ~o both are guilt)' of one :md the same crime, Held: (1) The lower c~urt

RE CENT DEC ISIONS

commitled 110 (>1'1'01' in pel'mit1ing the calling of ft new witll llll! to tes· t ify, because Arlicle 18, Code of Criminal P\'D(:edul'c, leaves tD the sound discl'et ion of the t!'ial Judge to permit a new witneRs to be called tD testify, Morcover, th\! Fiscal preyed that it was only at thc last mDml'nt that he was infDrmed Df the name Df the witnes! , h : any case, the substantial rights oC the accused wei'" nDt prejudic~d because the defense cDunsel cr05s·('xaminc:d exten sively and had o.mple OpPOI'.

tun ity ot testing the \'CJ'3.cilr of the witnes:5, (2) The second assign· ment of errOl'S is likewise untenable, T he facts ns pl'Dven in tht.! tl'i:1I court arc the foll owing, In the morni ng of Decembcr 8, An!lstacio assaulted Leoncio Lopez with u wooden tobacco mould ilt the La Ycbana fnewry where the Ialte l' worked, LOllc Mcrcado l:,"Ot h:;Id of Anastacio and Leoncio escaped along the corridor, whel'e DesideriD, 8uddenly ane! without wlIl'ning wDundcd him mortally with 3. dag. gel'. LeonciD took refuge in a r com, Both defe ndants challenged him to come out a nd fight like a man, Leoncio died sever3.1 hours thcn­after, It is admitted b)' the de~ fcnse that the assault made by Anastacio wa!!' chnrncteriled by heachery. But it is contended that t reachery does 1I0t ex ist in the ease of Desidcrio, because, while the de. ceased escaped a long the corridor he was pl 'cceded by Lope who was I.'quall y attac:ked by 'the said ac. cused, liD thilt when the deceased was attacked, the latter \\'a!!' nlready ;a~'I1 (l{1 by wll(1.\, happened tD Lupe,

IllS cDntention j,J wi t hout mel'it. The deceased wa !!' escaping from Anas tacio, while LDlle gDt I1 Dld of AnastaciD, when he was stabbcd by Desiderio, Under this circumstunce and cons idering the stute of mind he was thclI in. the deceus{'(] could

not determine what haPllCncd to Lope nor anticipate that DeBidcrio would attack him so Sllddenly, De!!-ideriD attacked without dllnger to himself, alld so cnexpectedly that the d«eased could not ~3.de it.

(3) Thel'e is no dil'ed proof Gf conspi1'llcy other than the followin\! circumstances.: fir,!, they Wi'll' found a t the phce of the c rime; IIl'c't;md, they met at tile cOI' I'idor; lind third. Ihl')' challenged the de­ceased to comc out frDm his place of refuge, Anastacio's wife w ~ rked

at the La Yebana !lIctDry, and this could accou nt fol' Ana.HaciD'l' pl' ..... sence there, There is nn proof that bDth Ilccused ugreed to llleet a1 t he col' I'idor, und it is mol'c reasnnable tu infer fl'(lm the facts prtWln that thei r prt'sence the I'€! was u. lllere "'Qincidence. Wh('11 the evidence from which ~DnsllinlC)' 11111)' be in· ferred is Sus~cJ1tible of nl1othcl' IDg. ical and ratiDnal up!:mation, it should Ill'll be cOllsidl'red suffi cient to dcmonstratt' t he I'xlstcnt'e or conspirac~·. Thcl'efol'e, tbe dl'fend. ants are Cl'iminally l'(:~p~nsible ful' the ac~ each committed, Desiderio is guilty Df murder qualified bv 11'eaehcry with the Initigatinp- cir­cumstance or ha\"ing .!url'endel'(:d immediately to the authodtiCll (Art. 2-18, (1) Revised Pell:ll Code); Anastacio having inflicted n contu· siDn Dn the arm of the deceased. hi guilty oi slight nhys ical injuries with the aggravating ckcumstance of trellehery (Art, 266, (2) Revised Penal Code), Judgment Illodified. (Per Impel'ial, J .. AVllnceiill, C, J" Villa·real , Abad SantDs, DiIlZ, Ll1u~

I'el, COl1cepcinn , J ,J" CDncurring,) Briefed by FELtx V, :'IfAKASl.l.R,

PR&;Cr:II'TtON'-CRIM!,;S UNm,R SPF ... CIA!. PesAL LAws,-PeD/,le vI 'h~

Phl/iJlJJi71~', pluillti/f·"f1pfllI(',. V" C, ,\" H od.ge$.. df"femfrmt-{I/JI,t'//fllrt, G, R. ND, ,,,,CU, ScptflmtH'" 30, 1998,_

346 PHILIPPI NE LA W JOURNAL

-From a j udgment of conviction for the crime of U S\ll·Y. the defendant nJlpeals, assigning as error the fail­Ul"(,> of the triul eOUl·t to uphold his ddense of prescription, The de_ fendant had c~llected illegal inter­est on Feb, 12, 1930, Fcb, 9. 1931 and MU1'ch 31, 1931. The complaint fOl' USUI")' against him was filed on May 4, lO3n, foul' yeal·s. one month, a nd thl'ee days nftel' 1'> lal'ch 31, 1931, the day he collected the last SUlll constituting illegal interest. Act No, 3326 as amended by Act No, 3763 I'~nds ;

"Violations penalized by special acts shall unless othel'lvise provided in such acts, 1)1'escribe in accordance with the following rules: (a) after a year fer offenses punished only bY 'a fim! 01' by imprisonment fo l' not 1110re than one month, or both; (b) aHel' foul' years for those punished b)' imprisonment for more than one month, but less thnn two years: (c) after eight years f:l' those punished by imprisonment for two years or mOI'e, but less than six yean; and (d) after twelve years for any other offense punished by imprisonment fill' six yelll's 01' lIlore, except the crime of b'cnson, which sh all pre­sCI'ibe nftel' twenty years. P,'ovided, howevel", that all offenses against any law aI' pal't cf law administel'ed by the Bureau of Internal Revenue !Shall 1l1'escdbe after five years. Violations penalized by municipal ordin.:lnce shal! prescribe aHel' two months, Viollltio115 of t.he regula­l ion, or conditions of cel' tincates of public convenience issued by the P ublic S(,l'vicc Commissi : n r.~ 'Ill prescribe a fter two months." H eld: Since under Article 10 or Act 2655 as umended by A"tide 2 of Act 2992, the accu5ed was punishablc with :l

fine not less than r 50.00 and not morc thall 1"'800,00, 01' impl'i,onment Qf not less than ten days and not more than six months, 0" both. the

restitut ion cf the entire sl1m re­ceived as interest from the party nggrieved and in case of nOn_pay_ ment, to suffer subsidiary impl'iMn_ mcnt at the rate of one day (or every two pcsos, the crime commit­ted by the accuscd falls undc!, the jlrovisions of subsection (b) of art, 1 of Act No, 3326 .us amended, which prescribes four yearS as a period of prescription, The crime has thel'cfOl'c Jlrcscribed, ncvel's~d

(PCI' ImpCJ'ial J ., Avancena R, C, J., Villa-rea!. Santos; Diaz, Laurel, Concepcion, J, J" concurring.) BrielI'd by FERDINAND MARCOS.

CIVIL PnOCf .. "OURE--RF..G:WERY OF

P URCHASE PRTC~; P AID ON A PUEL-Ie SALE LATER ANNULI..ED.-MuJ·!antl C,

L(lC8(m, 1)[(linf.ijl (wd at)pelfcl'l, 1.18, Gi/ M. MOlltilla, f.l-t ai, defcndant8 'Old UPPf.l-U(lJl/s, R. G. No, -'-'313, Dc­/llbcr n, 1938._By virtue of an ac­tion brought by RanHlS Diez against Homobono T upas, lot No. 492 was Ordered llttached and sold at public auction, At the intervention of a third party clai11ling a better right, the sale was ordered annulled. Lae­son, the buyer in said sale th<:n pe­titio.1H..>d. the COUI't for the return of the Jlurchase price he 11aid. The court. deni«i said motion. indicating, howeve]" that a sepal'ate action be brought for such l·ccovel'Y. .Mean­while, the judgment Cl'editor, Ra­mOIl Diez, died, A committee on dnims and appraisal WPS appointed to. receive el.uinlS against the estate of the deceased, The I'eport of said committee wus submitted and ap­proved by the court on December 10,1931. Sevel'al months latel', Lac­!<on brought this 111:esent action against the sherif! and the widow of the judgment creditol' for the recovery Qf the pUl'ehnse price paid. Defenda nts' demurl'er was overru led by the lower court, and n judgment rendered Ol'dering t.he

RECE NT DECISIONS ' 47 widow to rcturn the purcha~e pHce togethcr with the legal intere..~tIi

thereon, H eld: L:tcson should hllve presented his ('laim bl'fol'c the com­mittee on claims and appraisal in accorda n('f' with Al'ticle G8G of the Code of Civil Procedure, Claims not 50 presented n rc barred in accol'd­ance \\ ith artie-Ie 69;) of the same Code, The ('OUI' t thel'dol'e erred in (lverruling the demu rrer , J udgrnen. reversed, ( Pel' Vilta-Real J" San . tos, Di az, Imperial, Laurel and Con­cepcion ,lJ .. concul'I'ing, !\vancefia, C. J , not taking pa r t,) /Jr;cied by WU.I, IAM O y LIACca,

AnM I ~ l smAT I V£ I~AW _ ApPI,IC'A.

TIQN OF ARTICL.E 2761 OF Tm : R F.-­VIS!:!) AOMINISTRATI\'T. cooE,-r C0111p of til" Pln'/il"1;,,,' 1'1ofl!li/f,oPIJellcQ 'VB, PrI!dem';o R ('v i(/a/, df'frmlllld­appcl/fUlt, G, R, No, -4Sli$~, Oc/obel' 13, l,",':8,-Pursua nt to a municipal ordin ance a public auction was h (>Jd fo r the lease of public market ~tal1s, In sa id auction one. Abdon Relevo, acting in the name and for the ac­count of the defendunt was the high­ClIt b tddel', The infonnntion ill thi case alle~s that the d~rendllnl

while he was a municipal councilur participated in the said public auc­lion c ::nducted by the municipality indirectly thl'\'mgh Relevo his agent, in violat ion or sections 2176 and 276 1 of the Revised Admini stnHivc Code the latter of which pl'ovirles: ';Seetion 2761. Holc.ing of prohi­bited intel'ellt by public officel"_ Any municipu\ or towllllhill cfficel' who contrary to Jaw, shall (lirecl. I,v or indi l'cctJy be interested in :Iny ~ontract wo!'k, 01' cockpit, 01' other pel'mitted game 01' lunusement 01' in any bus iness of the municipality or township, 01' in the purchase of I;lny real estate or any other propCl'ty be­longing thel'eto IIhall upon convic­tion be imlll'isoned for not less tha n aix month!!. hor more thnn two

~'ear5." Jidd : At the lime of the public aucticn the defendant was not yet a munici pal COWlcilol', Sec. tion 2761 thel'efore haa no aJl lllica­Lion, Said section prohibits only mun icipal officel'S from having pe­cuniary in t!!"!'!!st jn any municipal contract, Judgment revcned, De­fendant acquitted, (Per Diaz, J,; Avanccfia, C. J" Villu_Real. Santos, Laurel, and Concepcion, JJ .. concur_ ri ng.) J ustice Imperial r/iI!!RClffiJllI;

The information is not only for the participation of the defendant in the public auction but for the occupation of the public market !\taUs undel' a lease contnlct with the municipality fOl' a pel'iod of mo re than one year dm'ing whkh pcriod defendant was already It

municipal councilOl', Counsel f ::r the defl'l1dnllt dee!.! not deny the fact that at the time ot the public auction tbe defendant ,,"us already a munic.ipal councilor, The deci­sion of thE' lowel' court states "that the public bid fox the occupation of said marbt·stall number I wa .. held on December 3. 193-1, in aee~l'danec

with the :'llunicipal Ordinance No. 7, se!,ies 1933, while the defendant WIlS not yet a membel' of the munic­ipal counci\." The phl'tl.Se "while the defendant was not yet a IlIl.'m­

her of the municipal coundl" re­fel'S to the time the ordinance WitS

passed, not to the time of ~he pub­[ic auction as interpreted by the majol'ity opinion, Section 276 1 or the Administrative Code should have bc.>en appJicd in this case, Bdejed VII LI NO i\I, P ATAJJ,

CADASTIlI\L LAW-NoT!~'ICAT I !: N­

TN TERESTs---I IttflTlla f; oml / H fu've,ter Co, ofth!! PhWppinC8, rtf! .. P/!!i?ltif/­"pp,llee, t' " The Vil'cctUT of LIJ7t(U, De/ Ol1dIJll.t-aV/leUnllt, R, G_ No, ,U ID8, Oct, 3J, 19"8.-Thi! is nn_ appeal from a d~ision of the lower court which orderld the defendant

PHILIP P INE LAW JOUR NA L

to return to thc plaintiff-ap· pellee thc sum of S'223.2S, with 6', annual interest, In the cad",strai proceeding o f J:lnuary

23, 1919, the Court of Firs t Instance adjudgcd in (avol' of the plai nt iff a pa l'cel of la nd and later deel'eed the original ccr tifieate of tJU t;' ill his favor, On May 20, 1 ~21, the ('OUl't issued all ordCl' fol' the paymt;'nt of the costs of the cadas­!l'al pl'oc{'C(!ings amou nting to the sum of P370,7S, On Octobel' 28, 1~30, the Director of Land s l't-'qU il'<d the plaintiff the payment of the said Sum plus int('rests, until the day of parment, The Jllaintiff opposed the Jl8ymcnt o[ intH'ests, alleging that he wus only notified of the amount of the costs which he WIIS OOund to pay 011 October 28, 1!l30. The de­fendant insisted on the payment of intcJ'('St.lI, a nd the 1)lainliff 011 F'cb­rUlll'~' 14. 1933. paid under prutest the !!laid intel'ests which amounted 1,0

" 261.03 and filed an action fol' the reeo\'ll'Y of the same, The trial ('ourt deCI~ the l'etul'n of thc sa id intel'ests to the Illaintiff.8ppellee. Hence this appeal, The question to be decidcd is, si nce when was the p laintiff obliged to pay- tht! intel'cs ts of lhl' 8um of P370, 7S, fi eld: T he Iltw docs not exp)'essly provide wh('th_ er in a f'arla st l'al pl'oct!cdings the IJUI'­tiCIl must be notified of an ordcl' thel'!'in 1>y means of th ( delivery by the chief del·k of a COI'Y t hel'eof, "'s is provided when it is 8 t/et:igi(HI .. hut I'ea!!oning [I'om anlliogy, a nd ro ll ­s i(lel'ing that the purpoile of notifi. catiOIJ in one and in the othel' i ~

i(!"lItil'a l, t he ru le m'l"'t be th p lla me whether it be a decil:!ioH 01' a ll o,.dt l', It is then unqucstionnbl " that the p.'U'tie8 must be notified by means of the SCl'vk'C of a Nllly of nil onlc r.!! a nr' decisions promulg ated in a ca­dastral Ill'Oceroin,Q' in the lIallle mall­ncr as in the ordillBry pr~l dingH

in the COUl't. The order of distribu_ tion of the COIIL$ which wa s issued on May 20, 1921 , in the soid cadas_ tral p:rocC<'ding s hould havc been notifi£d t Q the Iliaintif{ by mean!! of n roPy thert.'Of, And in8SllIuc.h 8S he. wa,. notified of the same on October ~8, 19:30, fl'om this date mUl!t be counted the period for which he ~h a ll

be liable foJ' the payment of interest, Judgm.!nt modified and trom the jlum of P261.03 which al1pell\,(! paid under protest as interest, is deduct. ed the sum of f SI.O l a! interest from October 28, 1930 to FehhlHY 14, .1933. and the balance of " 210.02 to be l·eturm.'<.I to the appelk'(' with_ out intel'('f!t or cost, Judgment mo­ditiell. (Per Concepcion J., A\'Qnce_ fi n C, J .. Villa_Hell I, Santos. Impe_ lilli , D ill1., Laurel CQllcul'l'ing) , /iI"it/etf 011 R U1't:IIT\.I ESTASlSLA l,

COI'1STITUTIOSAI. LA\I'-ELEX1'ORAL

CO~l ISSION,-lt. E;(('(II.iQ~ Jl/li.dk­t iml-Gerardo .1t uM'('rO, ['. /{f;07l f r,

1", /turn T", Borar ttI)d lilt .l .. dit(lr Generol, Reff1wmfents, G, R. .'1(1, 1,5,'/52, Ot:t, .U, 1I138,-Th(' real ob­j ect of the prCI't- ll t p:tition is to have this (,Ol1l't n \'iew tilt' dedsion of the Elector al Cnmmissil)1\ holding that JUIlI1 L. Boral' was, unrle:' the Con­st itut ion , elected i'II embo.>r of the Na­t iolla l A~sembly for the thil'd d is_ trict of Samar" and issue an otder pl'Oh ibitinR' the respondent Auditor Genel's! (l'om passinI::' in audit nr au­thori1.ing ill finy way the dishurse­ment of fund s of th ~ Notitmal As· ~embly as emoluments for the re­slllilldent. Juan L , BocaI', and declar­ing t hl!1t. the laltel' i~ withuut right to continue holding the offire of mtmbcl' of tbe. NAtional ASl!embl)'," H t: ld; Section 4 of Article VI of the C'ollstitlltion pro\'ides that "the Flectoral Commission shall be the I'li le iud~e of all contelllll I'ela ti ng­to the election. l'Ctu rns , and quali-

RECENT DECI SION S

fica t ions of the Member of the Na­tional Assembly_ The lantuage of th is p rovision is clear. It \"ests in the Electoral Commission exclusive jurisdic tion to pa ss upon the Qualifi­ca tions of a mcmber of the National Assembly. The judglnlnt rendered by the Commission in t he exercise of I!uch an acknowledged power is. be· yond judicia l interference, el(cept, in any event "upon a clear show­ing of such urbitnu·y and iml)) 0-

vident usc of the powel" as w ill con­stitute a denial of due l,rocess of law." Barry v. Unitfd States ex. reI. Cunningham, 270, U. S. 5!J7, 73 L. cd . 867 ; Angara v. The Electoral Commission et aI., 35 O. G. 23. The deds ion involved in this pI·oceeding was r endered by the E lectoral Com­mission a fter due hcaring. This deci­sion is final and beyond the authol·­ity of t his court to review_ The pt'ti­tion in fhis case is dis.misscd with costs . It il! so ordered. ( PCI' Abad­Santos, J .; Ava ncei'ia, C. J., Diaz, Concepdon, Horil1eno, and MOl"nn, J. J ., concurring.) BTief~d by Ru­PmTQ T. E STANISLAO.

CIVIL LAW- R IGIIT OF WIDOW 1'()

DECEASED H USBAND'S PROPERTY­

S ALE OP L ANO BY 0",,£ HAVING

NO VALID T 11'r.E.-/Ja/tnzlI1""" A lunal! and Emm(t Alultcu. 1)laintiffB-apprl. lant8, V8. T ila..n, (iltjid6l) , defpll.(/unt. a.ppellee. G. R. No. 4~631., November 9, 1938.- Th is is itn appeal {l'om a decis ion of the lower court declaring the defendant the owner of the land in question. having pur'chased it from Vicenta Sumaoi who in turn alleges t hat she inherited it from her deceased spouse Raymu ndo 8ao­baocn. Ra ymundo 8aobaocn dird on October 1G, 1928. He had one daughter hy h is first marl"iae;e. Ur­!lula Baohaoen. Ursula Baobaoen died on J anuary 30. 19M, survived by two chOdren, .Bultazar and Emma

Alunen, who a rc the jllai ntiffs and appellants in this case. Withm a few years after the death of his first wif e, Raymundo BaobaOt.'n contract_ ed a second marriage with Victnta Sumaoi who died in 1930. Before this mar r iage he was the OIQler of the land describEd in Exbibit A. the lll"Opel·ty in question, which fact was admitted as true by Vicenta Sumaoi whi le still living. On Au­gust 1, ] 929, in paying the land tax of the property, dedand (E)[hibit G) that she inherited the land from hel' deceased spouse. Month:; bEfore he r death she conveyed the Jand to the herein defendant-appellee who has since paid the amount of P500 and has occupied and continues to oc­cupy the propert y. Questions : Did the. widow Vicenta Sumaoi inherit the property from the deceased spnusc.? Did defenda nt Tilan ac­quire a valid title b)' virtue of the sale? H eld ; (1) No, it is not suf­ficient that Raymundo Baobaoen has left a will nor that tbe widow who survives has been d<!c.\ared by so'l-nc court as his heir to such prop· erty. AJI that may be admitted in favor of Vicenta Sumaoi is that while living she had a right lrom the time the death of her spouse W

the usufnlct. of one-third of the property destined as hetterment for Ursula B aohaoen, daughter of Ray­mtUldo Baobaoc.n and mother of the appellants herein, (Art. 834, Civil CodoL Nor is it shown that Ursu­la Baobaoen, durill~ life, 01" her heirs after ber death, tnat is, the appel­lant!'! herc.in, had assigned such prop­erty to Vicenta Sumaol in compen­sation for her claim of that part of her husband's property, above re­ferred to. in usufruct, (Art. 838, Civil Code). (2) From the lot'ego­ing, it is concluded that when Vi­centa Sumaof sold the land in ques­tion to the defendant-appellant, she

350 P HILIPPI N E LAW JOUR NA L

had 110 valid r ight. and therefore she eould not dc\!d no,' lrall sfCJ' any title to th e defendant. who is how­ever entitled to such l;ght.5 all be­long lo a purchase r and possesso r or land in good faith. Reveued, with costs against the appEllee. (Per Diaz. J ., Avancciill, C. J., Villa -Real, Santos, ImpcriaJ and Laurel, JJ., concurring, Conccl>cion, J .. not tak­ing part. (JJ rI6/ed by RENATO D.

TAYAG.

R F;AL ESTAT~: M CRTGAG&-AcT 2938 - REm))lI'TION - P II 1Llf'PI/';E NA­TIONAl. BA)lI\ M UST R ENDE.'/. Ac­

COUl\'T1NG LF FRU ITS GATIIEIU:D.­

I l oddflo G(lrciu. M{~lta (ul(l So16-dad L Oll u, 111f1 il1tiff B-Ull]Jcllfwts VB. Philipphl(l N r~ t i 0 11 It l 8f111k

!l1I(i Emilio J?Odl'iU1IC::. de/em/,.. flltfS-u'P/lCllulIl lI, G. n. No. ~5919,

Oclo/lel- :fl. . /9."oY.-The plaintiffs­spouses mo,'tguf!cd I t> parcels of land to secure a IO'an rrO'm the Phil. ippine National Bank, They faile-d to pay the sec:md annual amortiza­tion of the loun, The bank brought u n action to fo.'ccl05e the mortgai,»e and petitioned for the appointment of a receiver, Whereupon, the mort. gago.,s executed an instrument wher<>by the mo.'tg3ged property was delivered to the bank with au_ thority to e-xel'cise el;ch anti c\'ery r ig ht llTanted in pII.'agraph 7 of the mortgage contact nece-ssary for the securi ty and sa tisfuction of the cred_ it, The court revoked the a r)poi nt· ment of n receive" and authorized the bnnk to cnte.' flO~se~ijion of the Jand in conformiLy with thl! tenllS of said instnunl'nl. In the judg­ment rende.'ed in the foreclosure suit , the mongll.!,>'OJ>!1 we.'e o.'dered to pay th e- amount of the Joan with interest and attorneys feell within three months, The said Jledod hav. ing exp ired, the Ilrolle .'ty was sold in public sale and WIIS bought by

the bank for P12,000, On hIafeh 28, 1934 . the cou rt confirmed the sale, On Jan, 21, 1935, the bank sold the property to Emilio Rodri. gu~ for P40,000, the su m of 1'6,000 being paid on the execution of the CQlltrac:t and the balance was to be paid in ten years, Sl!cUreJ b), a mort. gage of the same prope"ty, The mortgagors now demanded to be subrogated in the rights ot the new purchaser, offer ing to .. eimburse the t>.000 and to a ssume the obligations of t he new mo ,'tgtlge, The bank called thl.'ir attention to the fnct that the amount of thc judgment in the fOI'eclosu .'c sui t has not yet been paid, The lllo,'tgagors then demand_ ed a rendition of Jln nccountlllg of the fruits and products of the 1)1'011.

erty and offered to PJll' the balance according to the H'juidtHiOIl ,":ldc,

The bank answercxi that an account. ing will be submitted to the court in due time, Three days before the expiration of the period of redemp­tion, the bank cancelled the contract of sale made with Emilio Rodrig11~ a nd substituted a promise or sale, Whc n the ,.erion expired find no re­"emption made. the promise- of sale was cancelle-d alld the contraCt ot sale rl!stored , The mortgagor!! now bring this action demanding the right of subrogation and the rendi_ tion of an accounting. The cuurt denied the former and granted tbe latte,', hence this aDpeal by all the part ies, H eld: In o rdcr that the mortgagor may redeem the property, he must (1) l'xel'cisc thi,~ rigM with­in one year frOIll the date nf ~he

tonfil'mation tf the sale by t.he cou rt, a lld (2 ) pay the amoun t fixed by the court in the orde.· of execu· tion. with intel'cst thereon ilL the ra te specified in the mortgage and nil the costs and other judicial ex­pens.:'1! incu'red by the bank by Tea· son of the Clfecution and sale and

RECENT DECISIONS 361

for the custody of said property. (Art. 32, Act 2938). Before the expiration of the period of redemp· tion, the bank acquires merely the rights of custody ond administra­tion of the property mortgaged and sold in the public sale, and becomes owner of the same cnly when the period expi res and no redemption is made, As guardion and administra­tor of the property, the bank is obliged to render an occounting of the administration when l'equired by the mortgagor fol' pUl'poses of l'e­demption, To require the mol'tgu­gal' to poy the amount fixed in the ol'der of \'xccution with int<:l'(,lIt ;Ind the expenses of the sal e and custo­dy of the prope!'ty, and lose a1110

the fruits and products or the same i ~ against equity, justice, and the purpose of Act 2938, It is not an e l'ror fcr the C:lllrt to ordel' the bank to render nn accounting of the ( ruits in accordance with Sec. 46[1, Code of Civil Procedure, although a p.:>rsonal demand by the debtol' is sufficien t. The bank ha\'ing failed to j'endel' all accounting, thus im­pedi ng the redemption of the prop­erty, it cannot n:lw alleged lhnt no N!demption could be made after th" ~xpiration of the period of l'edemll­tion , In order that the p!aintiIrs may be 5ubl'ogllted in place of the purchaser of the prope,'ty, the offer to pay must include no~ ollly what said pUl'chasel' has paid but alsv the amount fixed in the ordel' of elCccution inl'luding interest, ex­Jl'Cnses of the exel'ution. sal.:>, and custody of the l)l'operty. Jud!,"lllent modified, ordering the bank to I'cn . der an acCountillg, liquidate the debt, and the plaintilCs to I'edeem the p roperty within 15 days, (l>er Villa-Rea!, J .• AVllnceiia, C. J" Santos, Imperial, Diaz, Lau­tel , Concepc:ion, IJJ" c:oncul'ring, ) Briefed by J UVENA[. K GUERnERO,

MORTGAGES, - ESS£NTIAJ. E[.E-

~tE:STS,_D I STINC UISH~'D mOM AN­TICH RESIS,-IACt!1"io Leg(1.;1fJi And Ju­Ii/In Sulcedo, P/ainti//s.A "pellatdS , 1'S. Dnmaso Celestial, Defew1a7lt­Apr)allee, G, R, Noft. 43673, 1,3674,

Octobn !.4,1838,-Plaintitrs brought Lhese nctlons against the defendant for tIle recov.:>ry of a sum or money and in default thel'eof, the fore­closul'e of the mOl'tgag.:>s executed undel' the fol!owing contracts: (1) Exhibi~ ';C-1" riE'nominated "Con­tract of Antichl'esis", '''That during the existence of this Contraet, the Party of the Second Part (L, Legas­pi and J. Salcedo) 01' theil' l'ep~e­

sentative shall administer and enjoy the poss.:>ssion of the said 5 salt beds and l'eceive and enjoy the benefits and fru its gathotl'ed or harvested thel'(()n: and that the Pal'ty of the Fi!'st Part (D. Celestinl) shall give r-nd tur!'> over to the Party of the Second Part the ad'ministration and possession o( said 5 salt beds dlll'ing the U!l'm of this Contl'act." (2) Ex­hibit "A" denuminated "Deed of Mortgage", (a) "The term of this mortgage shall be three years'" '" '" and if aiter the expil'ation of said pel'i(ld, the Pal'ty of the Fil'st Pal't fails t(l pay the amount of this mortgage, this Contract shall sub· sist in all ih (Ol'ce nnd effect and shall continue until the debt 01' the full amount of this mOl'tgage is pnid." (b) " Dul'ing the period of this mortgage, the Party of the Second Part sha11 administer and take charge of the work and pro­duction nf the sixty salt beds, ad_ "ance the expenses of the pal'tners and the expenses o( the imp l'ove­ments ; find the Party of the F irst Part. shall turn over the administra­tion o( the sixty salt beds mOI·tgaged riuring the term stipul ated." (c) "The production of the sixty s al t

352 PH I LIPPINE LAW JOURNAL

beds shall be divid£d equally between the partners and the Pal·ty of the Second Part sfter deducting the ex­penses advanced by said Party of the Second Part dUl'ing each period of production and during the term of this Contract." The defendant admitted the existence of the fore­going COlltl'acts but claimed that the $ahi a re contracts of antichresis and not of mOl·tgage, and filed a counter­claim to the effect thl\t the plain­tiffs should render an accounting of the production of the salt beds and apply the one half of the proceeds belonging to th e defendant to the payment of the debt. The principal question, therefore, is whether the aoove contracts al'e contracts of mOI·tgage or of antichresis. field: The aoov", contracts pl'ovide that the creditors shall have the possession and administration of the property in question and that after deducting the expenses of production and ad­ministration thereof, one half of the proceeds shall be for their use and benefit. It is not stipulated that the net pl·oceed shall be first applied to the payment of the intenst, if thel'e is any, and t.he surpl us to the pay· ment of the principal of the credit, The said contracts , therefore, do not fall under the provision of Article 1881 of the Civil Code, defining a contract of !lnticht'csis. Al­though as a general rule in a COll­tract of mortgage, the debtor retains the possession of the propcrty mort­gagcd and pay the creditor a stipu­lated inter(st of so much pel" cen­tum for the use of the money loaned, nevertheless., the tl'ansfer of posse" sion qf t he property mortgaged to the cr( di tor does not challg-e the na­tUl'e of the contract because the question of possc~sioo is not an C!J­!lenti al element of the contract of mortgage (Article 1857 Civil Code). Neflhn 1$ it an essential element of

this contract that the credit shall bear intel'est, nor that, if interest. is stipulated, it should be in the fOrm of so much per centum of the mOney loaned, The interfst may be in the form of pl'oducts or fruits taken from the JJropel'ty mortgaged. tn the present case the parties stipu. lated that the debtor instead of pay_ ing so much per centum of the money loaned as intel"ilst, the cre_ ditor shall retain one half of the proceeds of the production. (Per Villa-Real, J.: Avancena, C. J" Santos, Imperial, Diaz, Launl, Con_ cepdon, JJ" Concurring) Briefed by AI''ICETO D. YAP.

INTERNAL RF.VENUF. LAW-C RIMI ·

NAL AND TAX LIABILITY DISTIN.

GUISHED - ACCESSORY PENALTY _

WUEN SPECIFIC TAX ACCRUES-Pm­SONS L IABLE T O THE SPECIF1C T AJt.­

Benito Ga?'l!ia" plfJ.irttiff-aPJJe/l~~, t:fI,

Collector of hLt/JI""lIal Rel'olllc, de­fenMnt -appelll:ttl.t, R. G, No. 4U1~,

NO lJembc)' 3, 19.18.--For removing alcohol from the distillery of his employer to a store without paying the s pecific tax, the plainti ff was sentenced in a criminal case UJ pay a fille. Thereafter, the Collector of I. nternal Revenue requil'ed him to pay the specific tax on the alcohol in questioll, which hc paid under protest and is seeking to rCCo\'er in this action. The lower court held for the plaintiff, The Collector con­tends that the lower I!'O Ul"t erred : (1) in finding that the GO\·CI'JUTle.nt made a claim for specific tax in the criminal case against the plaintiff, and (2) in hold ing that the owner of the distillery and not the plllin­tiff, who is a mere employee, is lis, ble for the specific tax, HFld: O} It was error for the lower court to lind that the Govern~lent made a claim for the specific tax in t.he crim­ina l ease and that said true: was not

RECEN~ DEC1SIONS 353

allowed thl!l'cin on th !!' ground that, os the alcohol was tonfiscllted llnd the value thereof might have been greater thsn the tax due then all, the Government had an opportunity to collect the tax, I n reality 110

cla im for the tax was made, The cr iminal actioll involved a violation of section 2727 of the R~vised Ad­ministl'a tive Code and was bl'ought by t he Poople of the Philippines, The tux is rccovel'able by the Col­lector in an action independ fnt of the Cl;minal case alld the fact there­fore that no mention was made in the crim inal case of the tax did not bar the Govern men t from J'{cOver­Lng it thereaftel' as it had done thru the Collectol'. (2) Futhel'mol'e, the confiscation of the alcohol in the criminal case was an acceuoz'y p€n­alty imposed by article 25 of the Revised Penal Code and the penalty is eompletely distinet from the tax. (3) The statement ef the lewer ceurt that, as the specific tax is real. ly p!lid by the eonsumer, the plain­liff was not liable thereto. because he has net seld the alcohel yet, loses me r it when the fact is t'ellsidered that one who infri nges the law must suffer the consequences of his acts, one of which is eonfiscatien, Accord­ing to nticle 1479 ef the Rcv ised Administrative Code. the specific: lax shall be paid , net immedi ately be­fore the sale, but inlm t rliately be_ fore the removal of the u!'ticle from the plaee ef preduction_ (4) The lower eeutt erred in helding that the eWner of th e distil!ery and not the plaintiff, who is a mere em­ployee, s hould pay the specific tax. The a forecited article 1479 states that the s peeific tax lIhall be paid by the manufacturer, producer, owner, Or 1)er.!I'OJl, having :P<>8'W88ioJ~ 01 the article, It is a faet that the alcohel in question was found in the flOSSes­sian of the plaintiff and there is no ,

IlJlegation that he Temoved it Ilt the instance of h is employer, Al'ticle 1479, in erder to. preclude disllutes and to facilitate the determination of who should pay tht'- tax, has pro­videntially provided that the tax should be paid by the manufacturel', preducer, ewner or person having pessession of the artiele. Jlldgm(l'1I.t

'rfl V('rlfe rl. (Per Concepcion, J; Avall_ eeila, C. J., Villa-Real, Abad Santos, Imperial Diu and Laurel, JJ., con­cUl'fing" Bl'ie/ed by RAMON C ,

AQuiso.

ELECTION (;(JOE - EI.EC'l'ION I N ­

Sf'EC'I'ORS,-Genmimo Santio.go, Peti­tioner 11B. Hel'menegildo Atiell,u, (llld

Ma)wel de fa Pt!Cn!e, Rn:llJO'J!dllnt8, G, R_ No . 48375, November ~, 1938, - This is a ])etitien fe r a wl'it of 1ualldmmc8 to e 0 m pel the re­s pondent Hermenegildo Atienza as ]lr('sid(!Jlt of the Municipal Boal'd of the City of Manila to appoint an ('Ieetion inspector fol' the PARTIDO SOCIALISTA, The petitioner is the presidNlt-of the said party, The other respendent is the president. of the P,4.RTIDO DEMOCRATA to which, the minority inspector was granted by the respendent Atienza. The Petitioner alleges that the P(tf'­lidQ Sol'ialiBt(t is "a duly e rganized politica l group Existing since June 20,1935;" that because of the fusion of the Nacio)laliBtlf. PrOB and .4.nf;3 and the Denw(lrll.ta, Pro8 and An.tis, ,the res pondent Manuel de la Fuente fenlled separate political organiza­tion of seceding Detn.orr(lio.8 to which the President of the Municipal Board granted the third in specter in viola­tion of article 72 of Commonwealth Act No. 367 which prehibits the granting of inspectors ef e lection "to any branch or fraction whieh has !!cceded fro m its rnpeetive party or f rom" party resultinll! from their f usiell." Respondent Manuel de 18.

364 PHILlPrl"NE LAW JO URNAL

Fuente averred that the third elec­tIOn inlij>eCto" was granted not to the Partido DCflwcratu., but to the AlitHl­za lJemocl'atica which is an uJliollce o f Radical, F 1'ente Populur, and lJe­mocrata. tJ«.1'UCS,. that the Partido Sociulillfu does not have auy cantli­tiul<:! of its own, and that soid pnl'ty is u. lllember of the FI'fHHc POj)ldnr which is in turn a party-member of the Alianz..'1 Democrata, The is_ sue is: Which of the two contend­ing 0pp05ition pal'ties is entitled to this rt'pl'escntation? Held: Scction 71 of the Election Code provides that "in case the patties which polled the largest and the next Illl'gest IHllnbel: or votes at th .. next pZ'cceding elec­tion presmt only one candidate fOI' ench office, the othel' inSJJedor shall belong to the party of the opposing candidate· •• ," The foregoing con­cedes the thi rd election inspector "to the party of the opposing candida te." The right to the thi l'd inspectol' is I)redieated on the existence of the opposing candidate in the impend­ina- election, I t docs not nppeal" from the petition that the Partido Socia.liala has a candidate fol' thu coming elections, This fnct is stil led by the respondent Dc 18 Fuente in his IImwer and admitt(od by the pe­titioner in his l'eply, Thl' petition. therefore, fails to establish his legal right tQ political representation on Ihe. boards of inspectors, Peti tion denied, (Per Lau rel, J.; Avsn(: t iia, C. J " Villa-Real. J., Santos, Impe­rial. Diu. and COIICllpcion, JJ " con­nU'ring,) Brief~rl by J OSE C, CAS­mo.

M OnTCAGF.-- H oMESTEAD P AT£ST­

En'E(;T O~· R~C:[STRATION,-F"(l1tci.,­

co Saba8, IJiQinlif/-(l1J/Jctlunl, '\18, F'rnllci8t:" r. II r In flo et al.. Dc. J""la1lf-oppelfees, G. R, No, .UBO!l. l~r(m1tl Iflllte(l, Nm:embcr If>, J93~..­

The !'!pousell. F rancisco Garma and

Tarcila Vilnray, being indebtt.>d teo Francisco Sabll.!! in the sum of P2,187,53, executed on Noyember 10 , 1930 a mortgage on 8 I)al'cel o[ land . ' acqull'ed as homelltead, the patent of which had been issued by the Govcl'nor-Generul on Septembl:!l' 14 1026, The said contl'act o[ nlol'tgag~ was registered ill the Office of the Regi ster of Deeds. on Oe\.Qber 5, 1932, Having failed to &lIti&fy the obligation, the plaintiff tth:d foreclo. SUt'e pro<:eedings IIgainst the defen­dants and sought to obtain an elt(CU~ tion upon the parcel of lund describ­ed in the deed o[ mOI'tgag('. The Lower COU I't Jellied the motion to obtain execuUoll UpOIi said land, F'l'om this ruling, the plaintiff 11.11_ Ileals, H eld: The principal question to be decided in thi@ appeal, is whether or not the lowel' court elTed in declaring the mOl'tgllgll constitu­ted in favor of the olaintiH-appel­lant Francisco Sabas, void ab ilulio. The putinent pl'oviaions of law in­volved arc found in sections 116 lind 122 of Act 2B74. According: UJ these legal provisions, lands acquired by gratuitious title 01' by home~telld

cannot be lllortgagoo, encumhcl'ed or alienated from the date of the approval of the a ppliratiQ/l and during the !i\'e (6) ycars following­the date of the issuance or the title 01' concession, nor answer for the payment of any obligation contracted prior to the ttrminatioll of said pe­riod, except ill fn\'ol' of the Gov­ernment or any of its dependencies, Only t he improvements thereon, and the harvest gathern[ theref,'om lOay be encumbered to competent personll, aS50cintions or cOl'jlorlltions. Any contract entered into or executed whereby saie! lands Rl'e encumbered or mortgagfd, within the statutory period, shall be illegal and null from its eltecution. The contract executed whereby the land acquil'tld u home-

RECENT DECI SIONS 355

st~ ad WII S 'mortgaged is void ab ill~ IW having been eonstituted withhl the five yt!ars following the issuance of i-he title of homestead coneession. The fact that the conlract of mort­gage was registertd in the Office of the Register of Dt-eds, aftel' the lapse of the five (5) yeal's l'efel'l'cd to, did not givc !l01' could it give legal effect to said mortgage, in sul'h a way a s to burden said la nd, fo r tile renson that if it wuld produce such an efft!ct, it would subject the land to the pnymcnt of an obliga· tion cont l'acted prior to the termina_ tion of th e five ( 5) years referred to, which is not permitted by Seetion ll 6 of Act No. 2874, as amended by Act No. 3517. (Per Villa-Real J, ; Avancei'la , C, J., Abad Santos, I m­perial, DiM.: alld Laul·e!. J, J" eon­euning:, Concepcion J .. did not take part), Briejed by A!'O 'J'O:-iw H , N O. BLEJAS.

P REFERI::NCE OF CnEDITs-LQss a t·

PREFErtENcE._Monte de PiedfJ.(i (lIld

SlWings Bank, Plaintifl-Appciice ':8. Ma;lia Paz Marciu1u£ Gnidote, Jorge B. Delgado, TeodQI'Q U. Yan!loo, Philippine National Bank, an(i Bank 0/ the PFiilippins l8latuls, D ij/tJl!d .. tt7tt8; Tcodo'1'o R. 1~a7lgco, De/Mld ­Q7tt-Appellunf., G. R. No, 4.4!!6f), No­'t'C'llIbe,· 2, 1.9.!?8.-The defendant spouses Marci ana Guidote and JOI'ge B . Delgado owed the appe!lant 'feo­

dol'O R. Yangeo the sum of J>7 ,425

plus interest evidMced by a final judgment ill a civil case brought by the appellant to en force the payment of a promissory note issued by the spouses in his favor as payment for certain materials for building con­struction. The sa id spouse~ also owe{] the plaintiff-appC'llce P69,735 plus interest. This credit is guaranteed by four mortgages inscribed in the offiCe of the Registry of Pr('ll~I'ty and annotatid

on the back of the Certificates of 1'itle of the pl'ope l'\..ies long beiHC

the debt in fnvor of appellant was incurrcd. Defendant-appellant daims that by virtue of article 1022 of the Civil Code his credit is pre­ferred over thc credits oi the pili in­t iff-appellee. The l!lwer court de­clared the credit of the plaintiff-ap­pellee as preferred. Defendant ap· pealed tQ this court. H elct: The IOwel' court committeetl no enol' in declaring the plaintiff's cr(!dit as preferred. Article 1923, paragl'aph 3 of the Civil Code clearly ~I'ants preference to c redits secured by mortgages which 3rc I'ccol'dul in the R(!gistry of PI·OPHty. 'l'he claim of :'lIJpellant thut the credit whieh a rOSe nut of the purchase of materials for building construction by the defcnd_ ant. spouses fI'om the appellant is prefer red under the provisions of Article 1922 of the Civil Code is untenable. Appellant agreed te takc the note executed in his favor and to recover on the same. The accept-81lC'e of the note and reliance upon it to recovcl' t he indcbtednns was u clear renunciation by the appellant of the right gnmted him by Article H)2~ of tbe Civil Code. Said Arti­cle is not applicable to the pl'estnt. case. Affirmed , (Per Diaz, J. , Avancei'la, C. J ., Vi!la-Real, Santos, Imperial, Concepcion, and Laurel, JJ., concurring.) Briejed by Josv C. CASTRO.

PLEAIHNGS A l'iD PaACTICS-S t;ce:..O

"MOTION F Oa REOONSlOrnATWN A:-1D

NEW TRIAL MUST SE B ASEO ON DJF­

FEREI'T GROUND TI) SUS?EN"D RU N­NINC Of' PEtU" " FOR Pf:RFECTI NG Ap_

PEAL--'fIME AND En"ECT OF PRESEN­

TATION THErtF,(W.- AI/rcdQ Hidfl/g() Ri;;!al, petitioner 11". J08e/a. Ri.,a/ Mereado ct ttl., rettpondsnts. G. R. N o • .4f;1()(). October 28. 1938.-0n Junu8.l·y 14, 1935, the petitioner Te-

3(j(j PH ILl Pl"'INE LA W JO URNAL

~iv(d notice of a condemnatory :sentence rendered by the low~r court against him as defendant in II civil case. On Janunry 23 he moved for a r(collsideration o( the judgment on the ground that the decision wus con­trtlry to law and the weighL of evid. f nee. Notice of the Ol'der denying his motion for reconsideration was received by him on February 6. He ~lCcepted thereto and moved for a new tt'ia) on the ~ame ground as thnt of the motion for "econsidel'lI­tion, which motion was denied again on F~bruary III 011 February 21 he filed his exception thereto and notice of intention to appeal, and on March 2 he prc~entcd his bill of ex­ceptions. He 1101.1' seeks the r evoca­tioll of the ol'der of the Cou,·t of Ap­Ilcnls dismissing hi ll appeal. Held: From January 1<1. when petitioner ~eived notice of the adverse judg­ment, to Jalluary 23, when he filed his motion for nconsideration_ which is equivalcnt to a motion for new trial (Pascuu v. Ocampo, fi9 Phil. 50; Blouse v. Moreno and Gal'. cia, 33 O. G_ 153: L~vett v. Sy Quia, 34 Phil. 1299; Rodriguc:/: v. Revira. 35 O. G. 2123~-ninc (9) days had elapsed, leaving 21 days to prrsent lIaid motion, The! presentatiun of 1I11ch motion for new trial suspends the! running of the 21 days le.ft, which began to run ngain- on being notifi l d on Fehl'ual'Y G of the order denying the same (Layda \'. Legas­pi, 39 Phil. 89, lind cases cit~d

therl'in; San Miguel Brewery v. Le­garda. 48 Phil. 538; Agora v. Zan. dreta. 56 Phil. 57·) aud CllStS ther!'­in ciled.) 1'he. pl"e~e.Jltation of the 5(!cond motion for new trial on Feb­run.ry 8 tlid not susprnd the running of the 21 daY!' for it was based on the lIame ground ae the first; nor the 5 days from notice of the OTdur d~nying the first motion within which

he could exC(pt thereto and file no­tice of intention to appeal; nor the IU days within which he could pre­sent. his bill of exception8 if he had not utilized the illlid 5 dfly~ for the PUI'iJQS<!S indicated. So that, if Ute ,econd motion for new trial wal null and of no e£fect because not based on oth<'1' grOuods establis}nd in Sec. 145, Code of Civil Pl'ocedure the ()rder denyillg the s90me was like~ wise null ant! of no effect. In the ca~e of Aquino v. Tongco, 34 O. G. 1706, this Court held ~hat the party desiring to appeal can present va_ rious motions for new trial within the 30-day period but on different grounds; and while the filing oJ such motion bllscd on whflteve1' grounds established ill Sec, ld5, Code of Ch'il Prncl'dure suspends the running of the 30 days, the pre­l entation of another such motion on identical grounds a s the Ilriwioul one docs not pro<iuc(' the same ef­fect. Therefore, since the petitioner's cxception and noUce of intentjOll to ullpeal on l~ebrual"Y 21 and BlJI of ElCc(>ptions un )l;lreh 2 are late, his petition is deni~d with costs against h 'm. Judgment affirmed. (P er Vi­lin-Real. J ., Avanc:efia, C. J., Abad Santos, Imperial, Din?, Concepcion, JJ., <:Qneurring. Laurel, J, did not take part.) IJ dtl!r-t/ 1111 FELIX V. MAKASIAR.

OB[.,IGATIO~S ANU C- STkACTS--PRES<.'J!IPTI ;)N ASO Of"'",SOABILlTY OF

FRO)T.tI!'!SORY NOTE'i WrTII ;")UT Flxt.u

TtTtM.-Bellilo (il.m=a./clI. PlfJilllil/­npWlll8( l·S. Flortmlino du JOSf., ,1l­

f!'ltd'lII/-(llJTifJI/Q"r., G. R. No. MII,29, OdnIJ(r U, lYSS.-The. apJlellant-:\ fl­W'III 'l from a jud~mlmt sentt'ncing him to pay within thirt)· days the value of two promiSlInry notes con­tracted in 1922 payable as soon as flOSliibJe. His s pecial defenses are

R ECE NT DECISIO NS 357

tha t thc complaint is ambiguous fo r failun~ to specify when the debt was cont l'acted a nd whclI dem alldable and that, gTanti ng that the appellee has a caUl;e o{ action , it has PI'e­scribed, The elTOl'S assigned re­,"ol ved a round the a]lplicabilit)· of Art. 11 28. Ciyil Code, the appeUalit contending that Art, 1 I 13 Civil Coda should be a pplied so tha t t he notes were demandable since theil' execu· tion and tha t even supposing tha t Art, 1128 shou ld gover n the action to have the term fixed the sa me has prescribed according to Sec, 43 (1 ), Code of Civil P rocedure, H eld: The notes should be governed by Art, J 128, because according to their t er ms the uppellce grants the np­pe\la nt t ime within which to pny, Since the notes do not til!; the term, the court is the one to determine it ( Elci zegui v, Manila La wn Tennis Club, 2 Phil. 325; Barretto v, City of Manila, 7 Phil. 430; F Jol'ia no v. Delgado, 11 Phil. 157; Lavy Her­manos V, P ate rno, 18 P hi!. 357,) The action to have the term deter­mined has prescribrd according to Sec. 43 (1 ), Code of Civil Procedure, The prescriptive period is ten yea rs, which period has d apsed f l'om the ti me notes were contracted up to the fili ng of the action on Jqne 1. 1934. The action to be excl'cised u nder Art. 11 28 is distinct fJ'om that to recover the value of the notes a nd ,like othor civil actions is subject to the rules of prescription,- Judgment r eversed in de.fendant·s fa\'or with­out special pronouncement as to the amount of the costs, (P er Imperi a l, J ,; A vanceiia, C. J " Villa-Rcal, Abad Santo~ . Diaz, Laurel, Concepcion. JJ , concurring .) Briefed vv FELIX V, MAKASIAR.

p lai'll.l ijj-uPl1ellu')l.t 1'8, Simeon P erez, et ai., d(JjemrolltlJ-appe/lc68, G, R.

No, 4/.778, NOU6711bIJT 8, 191i"8.-'l'he province bmught e.xpl·optiation pl'a­ccedings against the defendants in the lower court, Findi llg the expro­pria tion propel', the lower court sentenced the pro,"ince to pay t he \'nlue of the respective properties of the defendants and, in addition thereto, the cost of removing and re­constructing said properties ill a n­oiher place, The province appealed from the decision of the lower court, and the sale quest ion is wheth_ er the plai ntiff, besides paying the val ue of the pl'ope:rties el!;propriatf.d, should pay the cost of l'emoval and reconstruction, H eld: The !\I nda­mental rule, in the matter of expro­priation. is tha t the owner of the property expropriated is entitled to a just compensa tion, By just com­pensa tion is mEa nt a f ai r and full equivalent fo r the loss sustained fro m the act of ex!)ropl·iation. Anything beyond that is more and anything short of that is less than compen!58-tion, Mallila Rail road Co. vs: Ve­lasquez, 32 Phil. 286. The owners are entitled ollly to recover the value of their respective properti rs e.x­propdatcd, Judgment modified, Briefed by AIlELAROO SUR!!)''}.

CmMINAI, LAW - CC ~SPIRACY

EXmll'TlNG CIRCtlMSTANCE,-People of the Philip/line / s/mlds vs, Vic.mle P. Ancheta, Isidoro dd R08urio (lnd Be'1!ito GIlItpi, (lefeu(/(l.fli8-flPl) (! lIr1.llts, alllt Crispino Sl.Ipud, et al., defend­'mis , G, R. No, 1.5341., Nov. !t9. 1988,- This is an aplleal f rom a juugment convicting th e d(fenuants_ appellants, the fi rst Us an accomplice and the other two as principals, for

EXPROPRIATION-JUST Ca MPENSA - the murder of one, Guillermo Sala­TJON.- Tlte Province of T (l.IJ(l. bo.,. zar. The facts show that Cirilo a nd

:;58 PHILIPPINE LA W JOURNAL

Rulo SanBon assaulted the defend· ant·appellant Vicente Ancheta, com· munder of the eonstabuhu'y in the municlpltl disnict., whose engsb'e' ment with Bibi:lIll1 Samson had been broken, D uring the attaCk, the dE ' ceased Salazar took the Ilil;lol of Ancheta aud kept it. Alter the as ' sault, Ancheta ordl;'rcd his sHgeant, the defendant-a ppellant Isidoro del Rosario, to arrest lhe Samson broth. era and SalMar, which was effected with the other defendants, eunsIA­bu lary soldier.>, Del Rosario dc­manded o[ Salazar the sun'enda of Ancheta'S pistol bUl Salazar denied hav ing it. As del Rosorio proceeded to scorch his person, S aluz:\I' stepl)ed back, ort w a pistol out of the left lK>Cket of his trousers and fll'cd at del Rosario, Th~ shot wall however pal'ried by the defendant·uppellant Benito G:l.l;pi, a private, who was near by. Salaza r again stepl)~ bllek and was about to fh-e again at del Rosario when Gaspi shot. and killed Sulatar. The dffense claimed that the Samson brothl·rs. Sibi anu , and Salazar conspired to a!sau lt Anehe· t:\ whi le the PI'os<cution claimed thut the purpose of the so:diers in nlUI"

ching to thl' town wus nol. merel)' to arrest tht Samson brolhers anll Sa­b.utr but mainly to a\'enge the as­sault committed against their su­perior officer by the brothl'rl<, Jleld: A conspiracy to commit u crim ~

must be established by Jlosith'e evi· dence , lind no lIueh evidence hnving be!.'n fMlublish cd, the thl;'ory of the defense cannot be accepted, T he evidence for the prOSEcution failed to IIUpport their clnim for the facts show that the Samson brothers su[­fered no serious bodi ly harm at the hands of the sold ien, Thnt Gaspi shot SalataI' in defense of del Ro· so rio 's life is established by II pre. ponderance of ",vidence and he is

therefore ('xemp t from criminal Iia. bility, (An, 11 , douse 3. Revised P enal Code), Although it may ap_ peal' to the mind of the IIVenlge person that there was an altogether excessive show of force on the part of defendants eonstltbulal')' men, yet the:y at'e lIlen who are trained to take no chances in an ernel'gency and to uphold their authority by force of arms, Judgment I'eve~ed and de­fendants acquitted, (Per J, Santos, C. J, Avancefia. Villa-Real, Impe. rial. Diaz, JJ, concur, Concepcion, J, disst'nts, Laurel, J, took no part.) I1l'-iefed by JUVEN AL K, GUERRERO,

CIVIL Pn()CEIJVI!E-MOTfON FOR R&­

('()-"SIIlF.l!ATION IN T i l E J USTICE O~' TilE

Pu.-I..C£ COuRT-En'EC1's TUEREQF,_

Dflmetl'1'O fl, E-nCIiNlal"io'l, PI«illUf!­

.4/Jpdl.ee " •. ToHuin. U'Mon, Df/leYld. aJU.A ppel/'IIIt, G. R .• \'0. 44928. NOli. .!/, 1938.-On Octob( r 9, 193{), judg­ment was rendl'red by Il Justice of the Peace Court for the pillintiif, a COpy of w hich was reech'ed by the attol'ney for the defendant on Octo­ber 11, 1935, On October 14 of the same yea.r, the defendant filed a mO­

lion fol' reconsideration on the ground ' that same is manifestly against the In\\' 111111 proofs adCluced during the hear ing: This motion was denied and attorney for defend­ant was notified thereof on October ~5, 1935. On October 29. 1935. he filt-d his eXeel)tion Dnd notice of ap­peal. The Justice of the Peaee for­wurded the rccord~ of the case w the Cou!'t. of F irst I nstanee where the plaintiff filed 1\ ]letition Cor thl!' disnlissal of the IlJlpcnl and thl!' de­volution o[ the rccol'ds of the case to the Ju~tiCI!' of the Pent'e for (xe­cution of the decision rendered by the lntter. on the ground that the dedsion had become final and eXe­cu tory because the notice of appe • .!

"RECENT DECI SIONS 359

wss not filed jo due time. The COUI·t of First Instance granted the mo­tiOll, The. d ~fendant now appeals, ISlm e: Did the fili ng of thc motion for reconsideration on Oet()bo::l' 1-1. 1035, inten'upt the running of the period of fifteen days fixed in S<le­t ion 7G of the Code of Civil P roce_ dure? H eld : While section 145 or the Code of Civil P,'oeoout'e deal .. with proceedings in the COUI'l of Fit'st Instance, there is no law which prohibits the filing of a motion for re<:onsid{'l'ation Or new trial in cases triable in Just ice of the Peace (>OUI'ts, Justice of the Peace courts are em· powend to amend and contt'ol their processes and ot'del's so as to make them conform to law provided they still have jurisdiction over the ease (Sect ion 11, Code of Civil Pro­CEdure). l\1otiOil for l'cconsidet'ation 'here is in effect a motion for new trial. Order of tHai court set aside and the case renll,nded fO!' furtht'T proccecling on the appeal taken. (Per Laul'el J" Avancciia C, J" Villa_Real, Imperial, Dinl., J .J., con­euning. Abad Santos and Concep­tion J.J. took 110 part.). B"ie/cd b!l 1\h.:I.QUl ADES 1\1. VmATA, JR,

CODE OF C IVIL PnOCEDunF'.-ALTER­NATI VE JUOG'\1B~T.-C(l)'loll Yount!, Plainti//-A IlIJelltWf 1111, FrancillcQ AI. Blan co, Dc/clIdct11t-Appellee and Lu· ;/'011. Co" Slo'ety ,4.Pllcllte. G. R, No. Ha4.s, N o'/}, Jr, 19!8,-Ddendnnt Blanco executcd th,'ce promissory notes for " 100 each and one for 1>1 07.77 in lieu of M l old debt of "407.77. The hrms of the new ob­ligation included ]2<;',. intel'est and

20% of the said IIUI'll as damages in case of delay in payment, and to SeCUl'e the obligation an automobile Was mortgaged in favor of appel­lant, The qebt was not paid flod in order to pl'event the attachment of

tbe car, defendant offered a bond of P800 which was double the value of the ca r, with the Luwn Surety Co, as co-surety, both obliging them­selves to deli ver the car to plaintiff~ appellant if the court so orders or pay its value with costs and ally other amOullt to which plaintifi maybe entitled. Pursuant to a judg­ment of the lowe), courl ordering de_ fendant to dt!ivCI' the car 0 1' pay the sum of !'-IUU to appeilant, the former su nendel'ed the possession of the car to th(> sheriff and a sum of 1'300 was obtain(d fol' its sale at public auction. From an adverse judgment of the lower court, appel­I:mt now appeals to t'ecover the sum of P454,88, the amount remaining from the total cla im of P754.88 which includ( d interellts, costs, and pellulty. Held; The obligation stat_ ing that the principal debtor and the Surety would deliver the cal' if such is the j\ldgment of thc court or pay its value, costs, and whatever amount appellant is entitled to, which !S vll.Jid under Sec. 267 Code of Civil Procedure s h 0 U 1 d be intel'p r l.'fed in conn ;; ction with Se('. 272 Code of C i " i 1 Procedure which .'!'ivcs the court the right to render an ahe1'llative judg­meut either requiring defendant to dclive!' the I'est 01' pay pl;l.intiff its vulua plus damages if'such chli­VCl'y can not be made. Thus it is shown c1eal'1y that since defendant has delivered the car, he can no longer be made to rende1' ~atisfac­

tioll of the debt in SOme other mali­neI', Henee defendant's liability is limited to a deficiency judgment in the SDm of PI OO with interest at the legal ra te from Sept, 21, 1!l35 until pairl,-CPer Dial., J _, AVanceiia, C, J., Villa-Real, Imperial, Laurel, J, concu r ring). Brie/cd by REMEDIOS

L. J AYME,

SuO PH ILI PPINE LAW J OU RNAL

CIVIL PROCEDURE-OROER O~' Ac_ CJ UNTING IX JUDG:lIENT FOR UNFAIR

CO~It'.I:."ITION; ITS NATURE.-Prophy­lactic 8r1/8k Company alia R Oil. J086 O. Vel'a, U8 Juclye 01 the Court of F int I nstance vi Ma nila, Peti­t1'oners, tiS. The COlO·t oj Appeats, The Justices thereof alld Hideo Aki_ ta. Trudil lg us Marubi8hi i'ok{), respondentll. G. R. No. 46254, Nov . 23, J 938.-Th is is a petition for a writ of certiorllri to review a judg­ment of the Court of Appeals. In a civil cnse in the court of First In _ stance of l\Ianila, respondent Akita, was found guilty of unfair competi­ti rm b)" using in the sale his merchandise a tl'ade mark si­milal- t o that belonging to the P rophylactic Brush Co. and he was ol'dl:l'ed tor ~ n d e r, within fifteen days, an accounting of the profi t.s obtained by him there{i'om. Within the prescribed period Akita mOVEd fol' new tl'ial bu t this was denied b>" the Court of First In­stuncc ()f "Ianila 011 the gl'ound that the judgment was interlocutory and not appealable and that only after the approval of the Court of the ac­counting could a final judgment be rendered . Akita filed a petition for certiOl'lfri with the Court of Appeals contending that the court of F irst Instance of Manila acted in excess of itll jurisdiction in denying his mo­tion for new trial. The Court of Appeals sitting in ballc granted the petition of Akita for certiQr(lri and it is now sought to nview this de­CISiOn in the pl-occeding. /BsJUe,' Whether under section 123 of the Code of Civil P rocedure, the judg­mfnt rendered by the judge of the Court of First lnstance of Manila, is final or execulory_ Held: The

rule laid down in H . E. Heacock American Trading Company vs.

Oompany, 53 Phi l. 461, a ea se simi-

Ilir to the one under reyiew, is con­trolling. It was held in that. case that "i n accol'd with the weight of authority ...... the order of the court for llccounting was based upon, and is incidental to th e judg­ment on the merits ... .... that the judgfllcnt which the lowel' court rendcl'cd was a final judgment with. in the ffiHlning of section 123 of the Code of Civil Procedul'c, that in this kind of u case all accounting is a mere incident. to th e judgment; that an appeal lies from the rendition of the judgment as l'cnrlered .... ~ and that this view is more in harmol1y with the administration of justice and the spirit and intent of the Code. If on appeal the judgment of the lower CO Ul't is affirmed it would not th e least work an injustice to any of the legal rights of N. E. Heacock Company. On the othel' hand, if for any teason t.his court should reverse the judgment of the lower court the ae~l)unting would be a waste of time nnd money, and

. I" .... " might work II matena Injury (lit pp. 488-409). To all intents and purposes, a judgment which ~ett1?, all equities between the parties IS

final and appealable , although it re­serves II settlement of accounts be­twee n the pal·ties in the futuI·e . Pe.­tition dismissed. (Per Laurel, J.: Avancefia C. J., ViJla_Real, Ab9d Santos, Imperial , Diaz, J, J. t coocur -

. C"n-pcion J took no part.) rmr<::. "",- ., 81'kjed by itlELQUlAOES M, VIRATA,

Jr.

BU.L OF RIGHTs-EXPROPRIATION

--Jus,. COKPENSAnON._Fort14)1!lto

l .. ~u'" et 0.1.. plainti//s-appd/etB ·V'.

f,flmicip,,/ity 0/ Bao/ay011, Ifeft'1Id­d tlt_dppe/lvnt. G. R. No. ,,/'M4. N 01!embej· 39, 1.998.-In M:cordttnce with the resolution of the municiral

RECENT DEC1 S IO NS 361

council, several coconut trees grow­ing within the muniei pal road under construction were destroyed. The plaintiffs brought an action in the lower court to recover the value of the coconut trees thus destroyed, and, inasmuch as said coconut trees were private property, the lower court sentenced the municipality to indemnify the respecti"e owners thereof for the loss sustained by

fendant municipality appealed to this Court. Held: The resolution in question is an act of expropriation

and, according to the Bill of Rights, Section 1 ( 2). Article III , "prh'ate property shall not be taken for pub· lie use without just compensatioll". :s'o compensation is pro"ided for in the resolution. Therefore, it is un­constitutionnl. Brie/ed by AU£LAR-

them, F rom this decis ion, the de- 00 SUiIlOO.