velasquez-rodriguez vs honduras, inter-american court of human rights (see seriec_01.

doc) asian agricultural products vs sri lanka, 30 ILM 577 !""!# (see aap vs. sri lanka.doc) repu$lic of indonesia vs vinzon, %05 &'() !*+ *003# ,)'-&. Petitioner, Republic of Indonesia entered into a Maintenance Agreement in August 1995 with respondent James Vin on, sole proprietor of Vin on !rade and "er#ices$ !he Maintenance Agreement stated that respondent shall, for a consideration, maintain specified e%uipment at the &mbass' Main (uilding, &mbass' Anne) (uilding and the *isma +uta, the official residence of petitioner Ambassador "oeratmin$ !he e%uipments co#ered b' the Maintenance Agreement are air conditioning units, generator sets, electrical facilities, water heaters, and water motor pumps$ It is li,ewise stated therein that the agreement shall be effecti#e for a period of four 'ears and will renew itself automaticall' unless cancelled b' either part' b' gi#ing thirt' da's prior written notice from the date of e)pir'$ Petitioners claim that sometime prior to the date of e)piration of the said agreement, or before August 1999, the' informed respondent that the renewal of the agreement shall be at the discretion of the incoming -hief of Administration, Minister -ounsellor A hari .asim, who was e)pected to arri#e in /ebruar' 0111$ *hen Minister -ounsellor .asim assumed the position of -hief of Administration in March 0111, he allegedl' found respondents wor, and ser#ices unsatisfactor' and not in compliance with the standards set in the Maintenance Agreement$ 2ence, the Indonesian &mbass' terminated the agreement in a letter dated August 31, 0111$ Petitioners claim, moreo#er, that the' had earlier #erball' informed respondent of their decision to terminate the agreement$ 4n the other hand, respondent claims that the aforesaid termination was arbitrar' and unlawful$ Respondent filed a complaint against petitioners 5R!-6 of Ma,ati, petitioners filed a Motion to +ismiss, alleging that the Republic of Indonesia, as a foreign so#ereign "tate, has so#ereign immunit' from suit and cannot be sued as a part'7defendant in the Philippines$ !he said motion further alleged that Ambassador "oeratmin and Minister -ounsellor .asim are diplomatic agents as defined under the Vienna -on#ention on +iplomatic Relations and therefore en8o' diplomatic immunit'$ In turn, respondent filed on March 01, 0111, an 4pposition to the said motion alleging that the Republic of Indonesia has e)pressl' wai#ed its immunit' from suit$ 2e based this claim upon the following pro#ision in the Maintenance Agreement$ I&&/0. *hether or not the Republic of Indonesia can be sued$ (/LI12. !he "upreme -ourt on the matter ruled that the republic of Indonesia cannot be deemed to ha#e wai#ed its immunit' to suit$ !he e)istence alone of a paragraph in a contract stating that an' legal action arising out of the agreement shall be settled according to the laws of the Philippines and b' a specified court of the Philippines is not necessaril' a wai#er of so#ereign immunit' from suit$ !he aforesaid pro#ision contains language not necessaril' inconsistent with so#ereign immunit'$ 4n the other hand, such pro#ision ma' also be meant to appl' where the so#ereign part' elects to sue in the local courts, or otherwise wai#es its immunit' b' an' subse%uent act$ !he applicabilit' of Philippine laws must be deemed to include Philippine laws in its totalit', including the principle recogni ing so#ereign immunit'$ 2ence, the proper court ma' ha#e no proper action, b' wa' of settling the case, e)cept to dismiss it$ !he -ourt stated that the up,eep of its furnishings and e%uipment is still part so#ereign function of the "tate$ A so#ereign "tate does not merel' establish a diplomatic mission and lea#e it at that9 the establishment of a diplomatic mission encompasses its maintenance and up,eep$ 2ence, the "tate ma' enter into contracts with pri#ate entities to maintain the premises, furnishings and e%uipment of the embass' and the li#ing %uarters of its agents and officials$ It is therefore clear that petitioner Republic of Indonesia was acting in pursuit of a so#ereign acti#it' when it entered into a contract with respondent for the up,eep or maintenance of the air conditioning units, generator sets, electrical facilities, water heaters, and water motor pumps of the Indonesian &mbass' and the official residence of the Indonesian ambassador$ !he "upreme -ourt grants the petition and re#ersed the decision of the -ourt of Appeals$ : u a public official charged with some administrati#e or technical office who can be

held to the proper responsibilit' in the manner laid down b' the law of ci#il responsibilit'$ -onse%uentl', the trial court in not so deciding and in sentencing the said entit' to the pa'ment of damages, caused b' an official of the second class referred to, has b' erroneous interpretation infringed the pro#isions of Articles 1910 and 1913 of the -i#il -ode$ It is, therefore, e#idence that the "tate 5;PI6 is onl' liable, according to the abo#e %uoted decisions of the "upreme -ourt of "pain, for the acts of its agents, officers and emplo'ees when the' act as special agents within the meaning of paragraph 5 of Article 1913, supra, and that the chauffeur of the ambulance of the ;eneral 2ospital was not such an agent$ /or the foregoing reasons, the 8udgment appealed from must be re#ersed, without costs in this instance$ *hether the ;o#ernment intends to ma,e itself legall' liable for the amount of damages abo#e set forth, which the plaintiff has sustained b' reason of the negligent acts of one of its emplo'ees, be legislati#e enactment and b' appropriating sufficient funds therefore, we are not called upon to determine$ !his matter rests solel' with the <egislature and not with the courts$

minucher vs '), 3"7 &'() *%% *003# +octrine= /iling a motion to %uash, which, in effect alread' wai#es an' defect in the ser#ice of summons b' earlier as,ing an e)tension to file time to file an Answer and filing an Answer with -ounterclaim$ /acts= .hosrow Minucher is the <abor Attach> of the &mbass' of Iran in the Phil$ Arthur "cal o, then connected with the American &mbass' in Manila, was introduced to him b' Jose Inigo 5an informer belonging to the militar' intelligence communit'6$ Accdg$ to Inigo, "cal o was interested in bu'ing Iranian products li,e ca#iar and carpets$ Minucher complained to "cal o about his problems with the American &mbass' regarding the e)pired #isas of his wife, Abbas !orabian$ 4ffering help, "cal o ga#e Minucher a calling card showing that the former is an agent of the +rug &nforcement Administration 5+&A6 assigned to the American &mbass' in Manila$ As a result, "cal o e)pressed his intent to bu' ca#iar and further promised to arrange the renewal of the #isas$ "cal o went to Minucher?s residence and as,ed to be entrusted with Persian sil, carpets, for which he had a bu'er$ !he ne)t da', "cal o returned and claimed that he had alread' made arrangements with his contacts concerning the #isas and as,ed for @0,111$ It turned out that "cal o prepared a plan to frame7up a Minucher and wife for alleged heroin traffic,ing$ (oth were falsel' arrested and charged with #iolations of the +angerous +rugs Act$ Minucher pra's for actual and compensator' damages$ 2owe#er, counsel for "cal o filed a motion to %uash summons alleging that the defendant is be'ond the processes of the Philippine court for the action for damages is a personal action and that "cal o is outside the Philippines$ !- denied the motion$ -A dismissed the motion for lac, of merit on the basis of the erroneous assumption that because of the +iplomatic Aote 5ad#ising the +/A that "cal o is a member of the B" diplomatic mission in#estigating Minucher for drug traffic,ing6, "cal o is clothed with diplomatic immunit'$ Issue= *hether or not a complaint for damages be dismissed in the sole basis of a statement complained in a +iplomatic Aote$ 2eld= Ao$ Jurisdiction o#er the person of the defendant is ac%uired b' either #oluntar' appearance or b' the ser#ice of summons$ In the case, "cal o?s counsel filed a motion to %uash, which, in effect alread' wai#ed an' defect in the ser#ice of summons b' earlier as,ing an e)tension to file time to file an Answer and filing an Answer with -ounterclaim$ !he complaint for damages cannot be dismissed$ "aid complaint contains sufficient allegations which indicate that "cal o committed imputed acts in his personal capacit' and outside the scope of his official duties and functions$ !he !- ga#e credit to Minucher?s theor' that he was a #ictim of frame7up hence, there is a prima facie showing that "cal o could be held personall' liable for his acts$ /urther, "cal o did not come forward with e#idence to, pro#e that he acted in his official capacit'$

hol3 see vs rosario, *34 &'() 5*% /acts C Petitioner is the 2ol' "ee who e)ercises so#ereignt' o#er the Vatican -it' in Rome, Ital', and is represented in the Philippines b' the Papal Auncio$ Pri#ate respondent, "tarbright "ales &nterprises, Inc$, is a domestic corporation engaged in the real estate business$ C !his petition arisen from the sale of <ots 57A, 57( and 57+ located in the Municipalit' of ParaDa%ue, Metro Manila, through Msgr$ +omingo A$ -irilos, Jr$ to Ramon <icup, wherein <ot 57 A is registered in the name of petitioner and <ots 57( and 57+ are registered in the name of the Philippine Realt' -orporation 5PR-6$ C Meanwhile, the petitioner sold <ot 57A to !ropicana Properties and +e#elopment -orp$ 5!ropicana6 in the midst of unfinished obligations under the sales contract to ha#e the s%uatters #acate the land in#ol#ed in the sale$ C 4n Januar' 03, 1991, Ramon <icup filed a complaint with the Regional !rial -ourt, (ranch E1, Ma,ati on the ground that the sellers breached the contract between them$ 2e thus pra'ed for the rescission of the +eeds of "ale between petitioner and the PR- on the one hand, and !ropicana on the other, the recon#e'ance of the lots in %uestion, and specific performance of the agreement to sell between him and the lot owners and damages against petitioner and three other defendants= namel', Msgr$ +omingo A$ -irilos, Jr$, the PR- and !ropicana$ C 4n June F, 1991, petitioner and Msgr$ -irilos separatel' mo#ed to dismiss the complaint G petitioner for lac, of 8urisdiction based on so#ereign immunit' from suit, and Msgr$ -irilos for being an improper part'$ Ae#ertheless, it was denied b' the trial court after finding that petitioner Hshed off 5its6 so#ereign immunit' b' entering into the business contract in %uestion$I C 4n 4ctober 1, 1991, the trial court issued an order deferring the resolution on the motion for reconsideration until after trial on the merits and directing petitioner to file its answer, compelling the petitioner to ele#ate the case to the "upreme -ourt$ C 4n +ecember 9, 1991, a Motion for Inter#ention was filed b' the +epartment of /oreign Affairs, claiming that it has a legal interest in the outcome of the case as regards to the diplomatic immunit' of petitioner, and that it Jadopts b' reference, the allegations contained in the petition of the 2ol' "ee insofar as the' refer to arguments relati#e to its claim of so#ereign immunit' from suit$J C Pri#ate respondent opposed the inter#ention of the +epartment of /oreign Affairs$ In compliance with the resolution of this -ourt, both parties and the +epartment of /oreign Affairs submitted their respecti#e memoranda$ C !he -ourt decided that +/A has legal interest to inter#ene in the case in behalf of the 2ol' "ee, finding that, in Public International <aw, when a state or international agenc' wishes to plead so#ereign or diplomatic immunit' in a foreign court, it re%uests the /oreign 4ffice of the state where it is sued to con#e' to the court that said defendant is entitled to immunit'$ Issue C *KA the petitioner lost its so#ereign immunit' when it had entered into a commercial transaction for the sale of its parcel of the land in the PhilippinesL A4$ o !here are two conflicting concepts of so#ereign immunit', each widel' held and firml' established$ According to the classical or absolute theor', a so#ereign cannot, without its consent, be made a respondent in the courts of another so#ereign$ According to the newer or restricti#e theor', the immunit' of the so#ereign is recogni ed onl' with regard to public acts or acts jure imperii of a state, but not with regard to pri#ate acts or acts jure gestionis$ !his came about because of the entr' of so#ereign states into purel' commercial acti#ities remotel' connected with the discharge of go#ernmental functions, but it created problems on characteri ing whether a contract of a so#ereign state with a pri#ate part' is an act jure gestionis or an act jure imperii$ o !he -ourt had to come out with guidelines= if the foreign state is not engaged regularl' in a business or trade, the particular act or transaction must then be tested b' its nature9 if the act is in pursuit of a so#ereign acti#it', or an incident thereof, then it is an act jure imperii, especiall' when it is not underta,en for gain or profit$ o In the case at bench, the pri#ate respondent failed to dispute that petitioner has bought and sold lands in the ordinar' course of a real estate business$ Moreo#er, the petitioner has claimed that it ac%uired said propert' for the site of its mission or the Apostolic Aunciature in the Philippines and merel' wanted to dispose off the same because the s%uatters li#ing thereon made it almost impossible for petitioner to use it for the purpose of the donation$

C *KA the respondent trial court has no 8urisdiction o#er petitioner, being a foreign state en8o'ing a so#ereign immunit'L A4$ o !he issue of petitioner?s non7suabilit' can be determined b' the trial court without going to trial in the light of the pleadings, particularl' the admission of pri#ate respondent$ *here the plea of immunit' is recogni ed and affirmed b' the e)ecuti#e branch, it is the dut' of the courts to accept this claim so as not to embarrass the e)ecuti#e arm of the go#ernment in conducting the countr'?s foreign relations$ 2eld !he petition for certiorari is ;RAA!&+ and the complaint in -i#il -ase Ao$ 9171F3 against petitioner is +I"MI""&+$ Aot left without a remed', pri#ate respondent can as, the Philippine go#ernment, through the /oreign 4ffice, to espouse its claims against the 2ol' "ee$ Its first tas, is to persuade the Philippine go#ernment to ta,e up with the 2ol' "ee the #alidit' of its claims$ 4f course, the /oreign 4ffice shall first ma,e a determination of the impact of its espousal on the relations between the Philippine go#ernment and the 2ol' "ee$ 4nce the Philippine go#ernment decides to espouse the claim, the latter ceases to be a pri#ate cause$ Aote C !he Republic of the Philippines has accorded the 2ol' "ee the status of a foreign sovereign$ !he 2ol' "ee, through its Ambassador, the Papal Auncio, has had diplomatic representations with the Philippine go#ernment since 195M$ C As e)pressed in "ection 0 of Article II of the 19FM -onstitution, we ha#e adopted the generall' accepted principles of International <aw$ Even without this affirmation, such principles of International aw are deemed incorporated as part of the law of the land as a condition and conse%uence of our admission in the societ' of nations$

united states vs ruiz, !3+ &'() %47 5rief ,act &ummar36 *hen Rui Ns sentence was #acated because she refused to wai#e her rights to impeachment e#idence, the go#ernment brought appeal on the grounds that its plea bargaining process was not unconstitutional$ &3nopsis of (ule of La76 *hile the /ifth and "i)th Amendments re%uire that a defendant recei#e e)culpator' e#idence at trial, a defendant ma' wai#e their right to this information in a plea agreement$ ,acts6 /ederal prosecutors offered respondent, Angela Rui , a fast trac, plea bargain, after 31,g of mari8uana was found in her luggage b' immigration agents$ Per the terms of the bargain, the respondent would ha#e gotten a reduced sentence recommendation, in e)change for wai#ing the right to recei#e impeachment information relating to an' informants or other witnesses, as well as to information supporting an' affirmati#e defense she ma' raise if she were to go to trial$ Rui re8ected the wai#er of her rights, the offer was withdrawn and she was indicted for unlawful drug possession$ At sentencing, Rui as,ed the 8udge to grant her the sentence she would ha#e gotten, had she ta,en the plea bargain, on the grounds that it was in #iolation of her /ifth and "i)th Amendment rights to a fair trial$ !he -ourt of Appeals ruled for the respondent, and #acated the sentence, and the go#ernment brought appeal$ Issue6 *hether, before entering into a plea agreement, the /ifth and "i)th Amendments re%uire federal prosecutors to disclose impeachment information relating to informants or other witnesses$ 8eld6 Justice (re'er, for the -ourt, held that although the /ifth and "i)th Amendments do pro#ide that a defendant be gi#en e)culpator' impeachment e#idence from prosecutors, a guilt' plea under a plea agreement, with a wai#er of rights, can be accepted as ,nowing and #oluntar'$ -oncurrence$ Justice !homas concurs, noting that the purpose of re%uiring e)culpator' e#idence is so there be no Hunfair trial to the accused,I which does not appl' at the plea bargaining stage$ 9iscussion6 *hile the /ifth and "i)th Amendments are designed to protect the right to a fair trial, a defendant can ,nowingl' and #oluntaril' wai#e those rights in a #alid plea agreement$

froilan vs pan oriental shipping co6 "45 :hil6 "05 4n March M, 19OM, /ernando A$ /roilan purchased from the "hipping Administration a boat described as MVK/" 19M for the sum of P011,111$11, with a down pa'ment of P51,111,11$ !o secure pa'ment of the unpaid balance of the purchase price, a mortgage was constituted on the #essel in fa#or of the "hipping Administration in a contract which pro#ides, among others, the following= In the e#ent that the /IR"! PAR!P should elect to e)ercise its rights to rescind under the terms of this contract, it shall ha#e the right to ta,e possession of the #essel herein sold in the condition that it is at the time of rescission but in no case in a worse condition than when originall' deli#ered to the second part', ordinar' wear and tear e)cepted and in case at the time of rescission the condition of the #essel is not satisfactor' to the /IR"! PAR!P, it shall ha#e the right to ha#e the #essel reconditioned, repaired, dr'7doc,ed at the e)pense of the "&-4A+ PAR!P$ !he same right is hereb' granted to the /IR"! PAR!P in case the "&-4A+ PAR!P should for an' reason refuse or fail to compl' with this condition of sale and return the #essel herein sold in a condition not satisfactor' to the /IR"! PAR!P$ !he right of rescission shall be considered as a cumulati#e remed' granted to the /IR"! PAR!P and shall not in an' wa' pre8udice his right to demand immediate and complete pa'ment of the purchase price of the #essel under the terms herein pro#ided, and to demand and collect from the "&-4A+ PAR!P such damages caused b' the non7compliance with this contract$ !his contract was dul' appro#ed b' the President of the Philippines$ /roilan appeared to ha#e defaulted in spite of demands, not onl' in the pa'ment of the first installment on the unpaid balance of the purchase price and the interest thereon when the' fell due, but also failed in his e)press underta,ing to pa' the premiums on the insurance co#erage of the #essel, obliging the "hipping Administration to ad#ance such pa'ment to the insurance compan'$ -onse%uentl', the "hipping Administration re%uested the -ommissioner of -ustoms on June 1, 19OF to refuse clearance on the #essel and the #o'age thereof was ordered suspended$ !hereafter, /roilan as,ed for a reconsideration of the action ta,en b' the "hipping Administration, claiming that his failure to pa' the re%uired installments was due to the fact that he was awaiting the decision of the President on the petition of the shipowners for an e)tension of the period of pa'ment of the purchased #essels, which petition was fa#orabl' acted upon$ 4n Jul' 3, 19OF, the "hipping Administration and /roilan entered into an agreement whereb' the latter undertoo, to li%uidate immediatel' all of his outstanding accounts, including the insurance premiums, within 31 da's, and ha#e the #essel o#erhauled, and promised that in case of his default, he shall Jwai#e, an' formal notice of demand and to redeli#er the said #essel peaceabl' and amicabl' without an' other proceedingsJ 5&)h$ 396$ Again, /roilan failed to settle his accounts within the prescribed period, thus, the "hipping Administration threatened to rescind the contract unless pa'ment be immediatel' made$ 4n August 0F, 19OF, upon /roilan?s re%uest, the "hipping Administration agreed to release the #essel on condition that the same would be o#erhauled and repaired and the accrued interest on the first installment would be paid$ !he Administration also allowed the mortgagor to pa' his o#erdue accounts, amounting now to POF,511$11 in monthl' installments, with warming that in case of further default, it would immediatel' repossess the #essel and rescind the contract$ /roilan failed to pa'$ 4n Januar' 1M, 19O9, the "hipping Administration re%uired him to return the #essel or else file a bond for P05,111$11 in fi#e da's$ In a letter dated Januar' 0F, 19O9, /roilan re%uested that the period for filing the bond be e)tended to /ebruar' 15, 19O9, upon the e)press condition and understanding that= $$$ $ If I fail to file the re%uired bond on the said date, /ebruar' 15, 19O9, to the satisfaction of the "hipping Administration, I am willing to relin%uish and I do hereb' relin%uish an' and all rights I ha#e or ma' ha#e on the said #essel including an' pa'ments made thereon to the "hipping Administration, without pre8udice to other rights the "hipping Administration ma' ha#e against me under the contract of sale e)ecuted in m' fa#or$ I wish to reiterate that if I fail to file the bond within the period I ha#e re%uested, an' and all rights I ha#e on the #essel and an' pa'ments made to the "hipping Administration shall be considered automaticall' forfeited in fa#or of the "hipping Administration and the ownership of the said #essel will be as it is hereb' automaticall' transferred to the "hipping Administration which is then hereb' authori ed to ta,e immediate possession of said #essel$ 5&)h$ EE6 !his letter of /roilan was submitted b' the ;eneral Manager of the "hipping Administration to the

board of directors for proper consideration$ (' resolution of Januar' 31, 19O9, the petition was granted sub8ect specificall' to the conditions set forth therein$ /roilan again failed to ma,e good his promises$ 2ence, on /ebruar' 1F, 19O9, the ;eneral Manager of the "hipping Ad7 ministration wrote the -ollector of -ustoms of Manila, ad#ising the latter that the "hipping Administration, b' action of its board, terminated the contract with /roilan, and re%uesting the suspension of the clearance of the boat effecti#e that date 5&)h$ M16$ 4n /ebruar' 01, 19O9, the ;eneral Manager directed its officers, -apt$ <aconico and others, to ta,e immediate possession of the #essel and to suspend the unloading of all cargoes on the same until the owners thereof made the corresponding arrangement with the "hipping Administration$ Pursuant to these instructions, the boat was, not onl' actuall' repossessed, but the title thereto was registered again in the name of the "hipping Administration, thereb' re7 transferring the ownership thereof to the go#ernment$ 4n /ebruar' 00, 19O9, Pan 4riental "hipping -o$, hereinafter referred to as Pan 4riental, offered to charter said #essel /"719M for a monthl' rent of P3,111$11$ (ecause the go#ernment was then spending for the guarding of the boat and subsistence of the crew7members since repossession, the "hipping Administration on April 1, 19O9, accepted Pan 4riental?s offer Jin principleJ sub8ect to the condition that the latter shall cause the repair of the #essel, ad#ancing the cost of labor and dr'doc,ing thereof, and the "hipping Administration to furnish the necessar' spare parts$ In accordance with this charter contract, the #essel was deli#ered to the possession of Pan 4riental$ In the meantime, or on /ebruar' 00, 19O9, /roilan tried to e)plain his failure to compl' with the obligations he assumed and as,ed that he be gi#en another e)tension up to March 15, 19O9 to file the necessar' bond$ !hen on March F, /roilan offered to pa' all his o#erdue accounts$ 2owe#er, as he failed to fulfill e#en these offers made b' him in these two communications, the "hipping Administration denied his petition for reconsideration 5of the rescission of the contract6 on March 00, 19O9$ It should be noted that while his petition for reconsideration was denied on March 00, it does not appear when he formall' formulated his appeal$ In the meantime, as alread' stated, the boat has being repossessed b' the "hipping Administration and the title thereto re7registered in the name of the go#ernment, and deli#ered to the Pan 4riental in #irtue of the charter agreement$ 4n June 0, 19O9, /roilan protested to the President against the charter of the #essel$ 4n the same date, the &)ecuti#e 4ffice ad#ised the Administration and the -ommissioner of -ustoms not to dispose of the #essel in fa#or of another part' pending final decision b' the President on the appeal of /roilan 5&)hs$ 937A and 937+6$ (ut since the #essel was alread' cleared in fa#or of Pan 4riental prior to the receipt of the foregoing communication, and allegedl' in order to pre#ent its being made answerable for damages, the ;eneral Manager of the "hipping Administration ad#ised the -ollector of -ustoms not to suspend the #o'age of the #essel pending final decision on the appeal of /roilan$ "imilar manifestation, to allow the Pan 4riental?s operation of the #essel without pre8udice to whate#er action the President ma' ta,e in the case, was also made b' the Administration to the &)ecuti#e "ecretar'$ 4n June O, 19O9, the "hipping Administration and the Pan 4riental formali ed the charter agreement and signed a bareboat contract with option to purchase, containing the following pertinent pro#isions= III$ !"#$%E$ "I$E, %I&E '( )#*&E+% $ G !he -2AR!&R&R shall pa' to the owner a monthl' charter hire of !2R&& !24B"AA+ 5P3,111$116 P&"4" from date of deli#er' of the #essel, pa'able in ad#ance on or before the 5th of e#er' current month until the return of the #essel to 4*A&R or purchase of the #essel b' -2AR!&R&R$ QII$ $I,"% '( ')%I'+ %' )-$!"#.E $ G !he right of option to purchase the #essel at the price of P151,111$11 plus the amount e)pended for its present repairs is hereb' granted to the -2AR!&R&R within 101 da's from the e)ecution of this -ontract, unless otherwise e)tended b' the 4*A&R$ !his right shall be deemed e)ercised onl' if, before the e)piration of the said period, or its e)tension b' the 4*A&R the -2AR!&R&R completes the pa'ment, including an' amount paid as -harter hire, of a total sum of not less than twent'7fi#e percentum 505R6 of said price of the #essel$ !he period of option ma' be e)tended b' the 4*A&R without in an' wa' affecting the other pro#isions, stipulations, and terms of this contract$ If, for an' reason whatsoe#er, the -2AR!&R&R fails to e)ercise its option to purchase within the period stipulated, or within the e)tension thereof b' the 4*A&R, its right of option to purchase shall be deemed terminated, without pre8udice to the continuance of the -harter Part' pro#isions of this contract$ !he right to dispose of the #essel or terminate the -harter Part' at its discretion

is reser#ed to the 4*A&R$ QIII$ %$#+.(E$ '( '/+E$."I) '( %"E 0E..E $ G After the -2AR!&R&R has e)ercised his right of option as pro#ided in the preceding paragraph 5QII6, the #essel shall be deemed conditionall' sold to the purchaser, but the ownership thereof shall not be deemed transferred unless and until all the price of the #essel, together with the interests thereon, and an' other obligation due and pa'able to the 4*A&R under this contract, ha#e been full' paid b' the -2AR!&R&R$ ))) ))) ))) QQI$ #))$'0# '( %"E )$E.I1E+%$ G !his contract shall ta,e effect onl' upon appro#al of 2is &)cellenc', the President$ 4n "eptember E, 19O9, the -abinet re#o,ed the cancellation of /roilan?s contract of sale and restored to him all his rights thereunder, on condition that he would gi#e not less than P11,111$11 to settle partiall' his o#erdue accounts and that reimbursement of the e)penses incurred for the repair and dr'doc,ing of the #essel performed b' Pan 4riental was to be made in accordance with future ad8ustment between him and the "hipping Administration 5&)h$ I6$ <ater, pursuant to this reser#ation, /roilan?s re%uest to the &)ecuti#e "ecretar' that the Administration ad#ance the pa'ment of the e)penses incurred b' Pan 4riental in the dr'doc,ing and repair of the #essel, was granted on condition that /roilan assume to pa' the same and file a bond to co#er said underta,ing 5&)h$ 1116$ 4n "eptember M, 19O9, the formal bareboat charter with option to purchase filed on June O, 19O9, in fa#or of the Pan 4riental was returned to the ;eneral Manager of the "hipping Administration without action 5not disappro#al6, onl' because of the -abinet resolution of "eptember E, 19O9 restoring /roilan to his rights under the conditions set forth therein, namel', the pa'ment of P11,111$11 to settle partiall' his o#erdue accounts and the filing of a bond to guarantee the reimbursement of the e)penses incurred b' the Pan 4riental in the dr'doc,ing and repair of the #essel$ (ut /roilan again failed to compl' with these conditions$ And so the -abinet, considering /roilan?s consistent failure to compl' with his obligations, including those imposed in the resolution of "eptember E, 19O9, resol#ed to reconsider said pre#ious resolution restoring him to his pre#ious rights$ And, in a letter dated +ecember 3, 19O9, the &)ecuti#e "ecretar' authori ed the Administration to continue its charter contract with Pan 4riental in respect to /"7 19M and enforce whate#er rights it ma' still ha#e under the original contract with /roilan 5&)h$ 1FF6$ /roilan, for his part, petitioned anew for a reconsideration of this action of the -abinet, claiming that other ship purchasers, including the President7!reasurer of the Pan 4riental himself, had also defaulted in pa'ment and 'et no action to rescind their contracts had been ta,en against them$ 2e also offered to ma,e a cash partial pa'ment of P11,111$11 on his o#erdue accounts and reimburse Pan 4riental of all its necessar' e)pense on the #essel$ Pan 4riental, howe#er, not onl' e)pressed its unwillingness to relin%uish possession of the #essel, but also tendered the sum of P15,111$11 which, together with its alleged e)penses alread' made on the #essel, co#er 05R of the cost of the #essel, as pro#ided in the option granted in the bareboat contract 5&)h$ 1006$ !his amount was accepted b' the Administration as deposit, sub8ect to the final determination of /roilan?s appeal b' the President$ !he &)ecuti#e "ecretar' was also informed of the e)ercise b' Pan 4riental of said option to purchase$ 4n August 05, 1951, the -abinet resol#ed once more to restore /roilan to his rights under the original contract of sale, on condition that he shall pa' the sum of P11,111$11 upon deli#er' of the #essel to him, said amount to be credited to his outstanding accounts9 that he shall continue pa'ing the remaining installments due, and that he shall assume the e)penses incurred for the repair and dr'doc,ing of the #essel 5&)h$ 13O6$ Pan 4riental protested to this restoration of /roilan?s rights under the contract of sale, for the reason that when the #essel was deli#ered to it, the "hipping Administration had authorit' to dispose of the said propert', /roilan ha#ing alread' relin%uished whate#er rights he ma' ha#e thereon$ /roilan paid the re%uired cash of P11,111$11, and as Pan 4riental refused to surrender possession of the #essel, he filed an action for reple#in in the -ourt of /irst Instance of Manila 5-i#il -ase Ao$ 1319E6 to reco#er possession thereof and to ha#e him declared the rightful owner of said propert'$ Bpon plaintiff?s filing a bond of PO11,111$11, the court ordered the sei ure of the #essel from Pan 4riental and its deli#er' to the plaintiff$ Pan 4riental tried to %uestion the #alidit' of this order in a petition for certiorari filed in this -ourt 5;$R$ Ao$ <7O5MM6, but the same was dismissed for lac, of merit b' resolution of /ebruar' 00, 1951$ +efendant accordingl' filed an answer, den'ing the a#erments of the complaint$ !he Republic of the Philippines, ha#ing been allowed to inter#ene in the proceeding, also pra'ed

for the possession of the #essel in order that the chattel mortgage constituted thereon ma' be foreclosed$ +efendant Pan 4riental resisted said inter#ention, claiming to ha#e a better right to the possession of the #essel b' reason of a #alid and subsisting contract in its fa#or, and of its right of retention, in #iew of the e)penses it had incurred for the repair of the said #essel$ As counterclaim, defendant demanded of the inter#enor to compl' with the latter?s obligation to deli#er the #essel pursuant to the pro#isions of the charter contract$ !hereafter, and upon plaintiff?s presenting proof that he had made pa'ment to the inter#enor Republic of the Philippines, of the sum of P1E0,5ME$9E, co#ering the insurance premiums, unpaid balance of the purchase price of the #essel and interest thereon, the lower court b' order of /ebruar' F, 1950, dismissed the complaint in inter#ention on the ground that the claim or demand therein had alread' been released$ "aid dismissal, howe#er, was made without pre8udice to the determination of defendant?s right, and that the release and cancellation of the chattel mortgage did not Jpre8udge the %uestion in#ol#ed between the plaintiff and the defendant which is still the sub8ect of determination in this case$J In #iew of the dismissal of its complaint, inter#enor Republic of the Philippines also mo#ed for the dismissal of defendant?s counterclaims against it, which was granted b' the court$ 4n appeal b' Pan 4riental to this -ourt 5;$R$ Ao$ <7E1E16, said order was re#ersed and the case remanded to the lower court for further proceedings$ "ubse%uentl', -ompaDia Maritima, as purchaser of the #essel from /roilan, was allowed to inter#ene in the proceedings 5in the lower court6, said inter#enor ta,ing common cause with the plaintiff /roilan$ In its answer to the complaint in inter#ention, defendant set up a counterclaim for damages in the sum of P51,111$11, alleging that plaintiff secured the -abinet resolutions and the writ of reple#in, resulting in its depri#ation of possession of the, #essel, at the instigation and inducement of -ompaDia Maritima$ !his counterclaim was denied b' both plaintiff and inter#enor Maritima$ 4n "eptember 0F, 195E, the lower court rendered a decision upholding /roilan?s 5and -ompaDia Maritima?s6 right to the ownership and possession of the /"719M$ It was ruled that /roilan?s #iolations of the conditions of the contract of sale in his fa#or did not automaticall' depri#e him of his right of ownership of the #essel, which passed to him upon e)ecution of the contract, but merel' ga#e rise to the "hipping Administration?s right either to foreclose the mortgage or rescind the contract b' court action$ As the "hipping Administration failed to a#ail itself of an' of these remedies, /roilan?s right of ownership remained unaffected$ And the subse%uent resolutions of the -abinet, restoring him to his rights under the said contract, reaffirmed the same$ !he charter contract between the "hipping Administration and defendant was declared null and #oid, not onl' because the former could not ha#e legall' bound the #essel, but also due to the fact that said agreement has not been perfected for lac, of appro#al b' the President of the Philippines$ And, e#en assuming that the said charter contract was #alid, the lower court held that, as the owner 5Republic of the Philippines6 under the same agreement was gi#en the right to terminate the charter or dispose of the #essel an'time, the action of the -abinet in cancelling or withdrawing the rescission of /roilan?s contract, had the effect of terminating the charter agreement with the defendant$ !he court also dismissed 516 defendant?s counterclaims against plaintiff /roilan and inter#enor -ompaDia Maritima, on the ground that it 5defendant6 was a possessor in bad faith, and conse%uentl', not entitled to damages9 506 plaintiff?s counterclaims against defendant, for the reason that the same should ha#e been directed against inter#enor Republic of the Philippines9 and 536 defendant?s counterclaims said inter#enor Republic, on the ground that the order dismissing the complaint in inter#ention had alread' become final and it was materiall' impossible for the latter to secure possession of the #essel$ /rom this decision, Pan 4riental brought the instant appeal$ -ontrar' to appellant?s contention, the ruling of the lower court that under the contract of sale with mortgage, ownership of the #essel passed to /roilan, upon deli#er' of the propert' to the latter, must be sustained$ It is to be noted that unli,e in the charter contract where it was specificall' prescribed that ownership of the #essel shall be transferred to the #endee onl' upon full pa'ment of the purchase price, no similar pro#ision appears in the contract of sale in fa#or of /roilan$ In the absence of stipulation to the contrar', the ownership of the thing sold passes to the #endee upon the actual or constructi#e deli#er' thereof 5Art$ 1OMM, new -i#il -ode6$ It is for this reason that /roilan was able to constitute a mortgage on the #essel in fa#or of the Administration, to secure pa'ment of the unpaid balance of the purchase price$ !here is no gainsa'ing the fact that there was continuous #iolation b' /roilan of the terms of said contract of sale$ !he records conclusi#el' show that notwithstanding the numerous opportunities gi#en him, /roilan had been remiss in the fulfillment of his obligations thereunder$ Ae#ertheless,

the lower court upheld his allegation that the Administration ma' not legall' rescind the contract without filing the corresponding complaint in court$ Bnder Article 11911 of the -i#il -ode, in case of reciprocal obligations, the power to rescind the contract where a part' incurs in default, is impliedl' gi#en to the in8ured part'$ Appellee maintains howe#er, that the law contemplates of rescission of contract b' 8udicial action and not a unilateral act b' the in8ured part'9 conse%uentl', the action of the "hipping Administration contra#enes said pro#ision of the law$ !his is not entirel' correct, because there is also nothing in the law that prohibits the parties from entering into agreement that #iolation of the terms of the contract would cause cancellation thereof, e#en without court inter#ention$ In other words, it is not alwa's necessar' for the in8ured part' to resort to court for rescission of the contract$ As alread' held08udicial action is needed where there, is absence of special pro#ision in the contract granting to a part' the right of rescission$ In the instant case, while it ma' be true that the contract of sale did not e)pressl' gi#e to the mortgagee the right to cancel the agreement it was, ne#ertheless, pro#ided therein that said part' ma' rescind the contract as it ma' see fit in case of breach of the terms thereof b' the mortgagor$ !a,ing into account the promises, wai#ers and representations made b' /roilan, to the e)tent that he agreed to the automatic transfer of ownership of the #essel to the Administration, should he fall to fulfill what was incumbent upon him, which did happen, the rescission of the contract without 8udicial action is proper$ !he ne)t %uestion to be determined is whether there had been a #alid and enforceable charter contract in fa#or of appellant Pan 4riental, and what was the effect thereon of the subse%uent restoration to /roilan b' the -abinet, of his rights under the original contract of sale with mortgage$ It is not disputed that appellant Pan 4riental too, possession of the #essel in %uestion after it had been repossessed b' the "hipping Administration and title thereto reac%uired b' the go#ernment, and operated the same from June 0, 19O9 after it had repaired the #essel until it was dispossessed of the propert' on /ebruar' 3, 1951, in #irtue of a bareboat charter contract entered into between said compan' and the "hipping Administration$ In the same agreement, appellant as charterer, was gi#en the option to purchase the #essel, which ma' be e)ercised upon pa'ment of a certain amount within a specified period$ !he President and !reasurer of the appellant compan', tendered the stipulated initial pa'ment on Januar' 1E, 1951$ Appellant now contends that ha#ing e)ercised the option, the subse%uent -abinet resolutions restoring /roilan?s rights on the #essel #iolated its e)isting rights o#er the same propert'$ !o the contention of plaintiff /roilan that the charter contract ne#er became effecti#e because it ne#er recei#ed presidential appro#al, as re%uired therein, Pan 4riental answers that the letter of the &)ecuti#e "ecretar' dated +ecember 3, 19O9 5&)h$ 11F6, authori ing the "hipping Administration to continue its charter contract with appellant, satisfies such re%uirement 5of presidential appro#al6$ It is to be noted, howe#er, that said letter was signed b' the &)ecuti#e "ecretar' onl' and not under authorit' of the President$ !he same, therefore, cannot be considered to ha#e attached unto the charter contract the re%uired consent of the -hief &)ecuti#e for its #alidit'$ Bpon the other hand, the -abinet resolutions purporting to restore /roilan to his former rights under the deed of sale, cannot also be considered as an act of the President which is specificall' re%uired in all contracts relating to these #essels 5&)ecuti#e 4rder Ao$ 31, series of 19OE6$ Actions of the -abinet are merel' recommendator' or ad#isor' in character$ Bnless afterwards specificall' adopted b' the President as his own e)ecuti#e act, the' cannot be considered as e%ui#alent to the act of appro#al of the President e)pressl' re%uired in cases in#ol#ing disposition of these #essels$ In the circumstances of this case, therefore, the resulting situation is that neither /roilan nor the Pan 4riental holds a #alid contract o#er the #essel$ 2owe#er, since the inter#enor "hipping Administration, representing the go#ernment practicall' ratified its proposed contract with /roilan b' recei#ing the full consideration of the sale to the latter, for which reason the complaint in inter#ention was dismissed as to /roilan, and since Pan 4riental has no capacit' to %uestion this actuation of the "hipping Administration because it had no #alid contract in its fa#or, the decision of the lower court ad8udicating the #essel to /roiIan and its successor -ompaDia Maritima, must be sustained$ Ae#ertheless, under the circumstances alread' ad#erted to, Pan 4riental cannot be considered a possessor in bad faith until after the institution of the instant case$ 2owe#er, since it is not disputed that said appellant made useful and necessar' e)penses on the #essel, appellant is entitled to the refund of such e)penses with the right to retain the #essel until he has been reimbursed therefor 5Art$ 5OE, -i#il -ode6$ As it is b' the concerted acts of defendants and inter#enor Republic of the Philippines that appellant was depri#ed of the possession of the #essel

o#er which appellant had a lien for his e)penses, appellees /roilan, -ompaDia Maritima, and the Republic of the Philippines3are declared liable for the reimbursement to appellant of its legitimate e)penses, as allowed b' law, with legal interest from the time of disbursement$ Modified in this manner, the decision appealed from is affirmed, without costs$ -ase is remanded to the lower court for further proceedings in the matter of e)penses$ "o ordered$

de;ter < carpenter vs kunglig %3 ,*d 705 -4PPRI;2! MA!&RIA< 4MI!!&+ S19M ;usta# <ange, Jr$, of Aew Por, -it', for appellant$ 2aight, "mith, ;riffin T +eming, of Aew Por, -it' 5-harles "$ 2aight and *harton Poor, both of Aew Por, -it', of counsel6, for appellee$ (efore MAA!4A and "*AA, -ircuit Judges, and -AMP(&<<, +istrict Judge$ "*AA, -ircuit Judge 5after stating the facts as abo#e6$ More than 51 errors ha#e been assigned, but the %uestions presented for decision are comparati#el' few in number$ !he chief attac, is based upon a claim of so#ereign immunit'$ (efore discussing that %uestion, howe#er, we will deal with other alleged errors$ !he theor' of the counterclaim was that the contract of +ecember O, 1919, nominall' between +e)ter T -arpenter and (ei8er T -o$, was reall' made b' the latter as agent for the Railwa's, or, if not originall' so made, was subse%uentl' ratified and adopted b' the Railwa's as its contract$ In opposition to this theor', the Railwa's contended that (ei8er T -o$ was an independent contractor, from whom the' purchased the coal under a contract originall' made on Ao#ember 1, 1919, and modified b' a document dated Januar' 1E, 1901$ !hese opposing contentions were submitted to the 8ur', whose #erdict is e%ui#alent to a finding that the Railwa's either authori ed or adopted the contract between (ei8er T -o$ and +e)ter T -arpenter$ *ithout specif'ing the e#idence which leads us to the conclusion, it suffices to sa' that there was enough e#idence to 8ustif' lea#ing the issues of agenc' and ratification to the 8ur'$ Much of the e#idence relating to the agenc' of (ei8er T -o$ consisted of declarations b' the agent, which b' themsel#es would be inadmissible to establish the fact of agenc'$ !here was, howe#er, other e#idence tending to pro#e such fact$ !he original complaint of the Railwa's alleged the agenc' of (ei8er T -o$ and the ma,ing b' them on the Railwa's? behalf of a contract with +e)ter T -arpenter$ !his complaint was #erified on information and belief b' the Railwa's? attorne'$ After the defendant?s counterclaim was interposed, the allegations of agenc' were stric,en from the complaint b' amendment, and on the trial much e#idence was introduced to pro#e that the attorne' was not authori ed to ma,e such allegations, and that he had made them under a mista,en interpretation of the facts S19F then ,nown to him, and without complete information as to the relations between the Railwa's and (ei8er T -o$ !he court left to the 8ur' the determination of what weight to gi#e to the allegations of the original complaint in the light of all the e#idence$ &rror is now assigned to the receipt in e#idence of the original complaint, which was offered b' the defendant both as e#idence of agenc', and as a formal ratification of the contract$ 4ne ground of ob8ection to its admission was lac, of proof of authorit' of the Railwa's? attorne' to bind his client b' the a#erments of the pleading$ "uch an ob8ection is clearl' not sustainable$ A pleading prepared b' an attorne' is an admission b' one presumpti#el' authori ed to spea, for his principal$ "ee Putnam #$ +a', 00 *all$ E1, 00 <$ &d$ MEO9 "haft #$ PhUni) Mut$ <ife Ins$ -o$, EM A$ P$ 5OO, 03 Am$ Rep$ 13F9 A$ &$ Road Machiner' -o$ #$ Vanderhoof, 19 /$50d6 331 5-$ -$ A$ 169 -hrist' #$ Atchison, !$ T "$ /$ R'$ -o$, 033 /$ 055 5-$ -$ A$ F6$ A further ob8ection was based upon the fact that the complaint had been superseded b' an amended pleading$ !his ob8ection is li,ewise una#ailing$ *hen a pleading is amended or withdrawn, the superseded portion ceases to be a conclusi#e 8udicial admission9 but it still remains as a statement once seriousl' made b' an authori ed agent, and as such it is competent e#idence of the facts stated, though contro#ertible, li,e an' other e)tra8udicial admission made b' a part' or his agent$ 0 *igmore, &#idence, V 11EM9 &#ans #$ +aniel, 0F9 /$ 335 5-$ -$ A$ 969 Ran,en #$ Probe', 13E App$ +i#$ 13O, 101 A$ P$ "$ O139 +aub #$ &nglebach, 119 Ill$ 0EM9 ;u' #$ Manuel, F9 A$ -$ F3$ If the agent made the admission without ade%uate information, that goes to its weight, not to its admissibilit'$ !here was no error in recei#ing the original complaint in e#idence$ <i,ewise, and for similar reasons, it was proper to recei#e the Railwa's? libel against the Bnited "tates for loss of the cargo of coal shipped on the steamer Alderman$ Pope #$ Allis, 115 B$ "$ 3E3, E "$ -t$ E9, 09 <$ &d$ 393, <ehigh Valle' R$ R$ -o$ #$ Allied Machiner' -o$, 0M1 /$ 911 5-$ -$ A$ 06$ Bnder the terms of the contract sued on, shipments of coal were Jto begin within 31 da's after the raising of the go#ernment embargo on e)port coal and to be completed within E months thereafter$J It was also pro#ided that shipments were to go forward in as nearl' e%ual monthl' installments as possible, that is, Jappro)imatel' 31,111 tons per month,J but deli#eries were e)pressl' made sub8ect to all go#ernmental restrictions and regulations$ !he embargo was lifted on Ma' 1, 1901, but up to "eptember 1M, 1901, go#ernmental regulation of the railroads had

pre#ented +e)ter T -arpenter from ma,ing shipment of more than about 51,111 tons$ -onse%uentl', as we held on the pre#ious appeal, the' were entitled to ship 31,111 tons during the latter part of "eptember and a li,e amount in the month of 4ctober$ +espite our prior decision, the Railwa's attempts to argue that the right to ship e)pired on "eptember 31$ It would suffice to sa' that the %uestion is no longer open$ !hompson #$ Ma)well, 1EF B$ "$ O51, O5E, 1F "$ -t$ 101, O0 <$ &d$ 539$ (ut, were we to go into it again, we should reach the same conclusion$ !he language of the contract is clear that shipments might continue up to 4ctober 31st$ *e find nothing in Aorrington #$ *right, 115 B$ "$ 1FF, E "$ -t$ 10, 09 <$ &d$ 3EE, so much relied upon b' appellant, to cast doubt upon this conclusion$ It is urged that the #erdict is based upon an erroneous measure of damages$ !his was a c$ i$ f$ contract for the sale of coal to be deli#ered in "wedish ports, pa'ment to be cash against documents in Aew Por,$ Bnder such a contract the seller?s dut' to deli#er will be performed when the coal is loaded on shipboard at the port of shipment$ (iddell (ros$ #$ -lemens 2orst -o$, 1911, 1 .$ ($ 01O, 0019 "agall #$ /inla', 0O5 A$ P$ E1, 15E A$ &$ 9M9 "etton #$ &berle7Albrecht /lour -o$, 05F /$ 915 5-$ -$ A$ F6$ !he measure of damages is the difference between the mar,et and the contract price at the time when and place where deli#er' was due$ Bnited "tates #$ (urton -oal -o$, 0M3 B$ "$ 33M, OM "$ -t$ 351, M1 <$ &d$ EM1, "etton #$ &berle7Albrecht /lour -o$, supra$ +e)ter T -arpenter introduced e#idence to establish the mar,et #alue of the coal at tidewater ports, during "eptember and 4ctober, 1901, the freight rates then pre#ailing for shipment of coal to the designated "wedish ports, and the cost of insurance on such shipments$ !he total of these three items, deducted from the contract price, would gi#e the seller?s damages$ !here was also testimon' that the suppl' of coal, of ships, and of insurance was sufficient to ha#e enabled +e)ter T -arpenter to ha#e shipped during the period in %uestion E1,111 tons of coal of the contract %ualit'$ In respect to the measure of damages there was no error$ It is further urged that the counterclaim failed to state a cause of action, because it contains no allegation of abilit' to perform on the part of +e)ter T -arpenter$ It alleged S199 that the Railwa's repudiated the contract on "eptember 01, 1901, and that +e)ter T -arpenter had performed all the conditions of said contract on its part to be performed, e)cept as e)cused under the contract$ *here the bu'er repudiates, there is no necessit' for the seller to allege a tender, nor his readiness and willingness to perform$ "ee (ritish, etc$, -o$ #$ -achar !ea -o$, 1903 A$ -$ OF, E39 Alleghenn' Valle' (ric, -o$ #$ Ra'mond, 019 /$ OMM, OF0 5-$ -$ A$ 069 ;ra' #$ "mith, F3 /$ F0O, F09 5-$ -$ A$ 96$ 2e must, of course, pro#e that he would ha#e been able to ma,e deli#er', for otherwise he will fail in his proof of damages9 but there is no necessit' for an allegation to this effect$ -omplaint is made of a comment b' counsel for +e)ter T -arpenter, in his summing up to the 8ur', on the absence of (ei8er as a witness$ !he record shows the following= JMr$ 2aight= If I am wrong, wh' isn?t Mr$ (ei8er here to set me rightL JMr$ <ange= I ob8ect to an' such statement, 'our honor$ 2e is not an emplo'ee of ours, and not under our control, and an' statement made here as to wh' we ha#e not produced him is improper$ J!he -ourt= &ither side might ha#e ta,en his testimon'$ JMr$ 2aight= It is a perfectl' fair comment$ JMr$ <ange= !hat is not a proper comment against the Railwa's, 'our honor$ J!he -ourt= 4b8ection o#erruled$ JMr$ <ange= &)ception$J It is to be noted that appellant re%uested no action b' the court, but merel' registered an e)ception when the court o#erruled his protest$ !his is not the proper wa' to preser#e the point that opposing counsel has made an improper remar, to the 8ur'$ (roo,l'n 2eights R$ R$ -o$ #$ Plo)in, 09O /$ EF, M1 5-$ -$ A$ 069 +e#ine #$ -hicago M$ T "t$ Paul R'$ -o$, 19O /$ FE1 5-$ -$ A$ M6$ (ut, in an' e#ent, we should not regard the incident as constituting re#ersible error$ *e now reach the appellant?s most serious grounds of attac, upon the 8udgment, based upon the claim of so#ereign immunit'$ It is asserted that no 8udgment can be entered against a foreign so#ereign go#ernment without its consent, and that consent to litigate its own claim against a defendant does not sub8ect it to an affirmati#e 8udgment upon a counterclaim$ /rench Republic #$ Inland Aa#$ -o$, 0E3 /$ O11 5+$ -$ Mo$69 In re Patteason7Mc+onald "hipbuilding -o$, 093 /$ 190 5-$ -$ A$ 96$ And see People #$ +ennison, FO A$ P$ 0M09 .ingdom of Roumania #$ ;uarant' !rust -o$, 051 /$ 3O1, 3O3 5-$ -$ A$ 069 !he "iren, M *all$ 5MO B$ "$6 150, 15O, 19 <$ &d$ 1099 Bnited "tates #$ &c,ford, M3 B$ "$ OFO, 1F <$ &d$ 901$ -f$ Bnited "tates #$ !he !he,la, 0EE B$ "$ 30F, O5 "$ -t$ 110, E9 <$ &d$ 313$ It is then contended that the same principle of so#ereign immunit' applies to the propert' or to the agencies of a so#ereign, citing (eri i (ros$ -o$ #$ "$ "$ Pesaro,

0M1 B$ "$ 5E0, OE "$ -t$ E11, M1 <$ &d$ 11FF9 &) parte "tate of Aew Por,, 05E B$ "$ O91, O1 "$ -t$ 5FF, E5 <$ &d$ 115M9 Mason #$ Intercolonial Railwa's of -anada, 19M Mass$ 3O9, F3 A$ &$ FME, 1E <$ R$ A$ 5A$ "$6 0ME, 105 Am$ "t$ Rep$ 3M1, 1O Ann$ -as$ 5MO9 +e "imone #$ !ransportes Maritimos +o &stado, 199 App$ +i#$ E10, 191 A$ P$ "$ FEO9 4li#er American !rading -o$ #$ Me)ico et al$, 5 /$50d6 E59 5-$ -$ A$ 06$ And from this premise the conclusion is urged that error was committed in the order of Ma' 09, 1905, which struc, out, from the Railwa's? repl' to the amended counterclaim, its assertion that plaintiff was an agenc' of the ,ingdom of "weden, and as such entitled to so#ereign immunit'$ !o this contention the defendant answers, first, that the order complained of was correct, because the pre#ious ruling of Judge 2and on the same point had become the law of the case, -ommercial Bnion #$ Anglo7"outh Am$ (an,, 11 /$50d6 93M 5-$ -$ A$ 069 and the assignment of errors raises no %uestion as to the propriet' of Judge 2and?s order$ It answers, further, that if the Railwa's were entitled to so#ereign immunit' it wai#ed that defense in #arious wa's$ "ee Porto Rico #$ Ramos, 030 B$ "$ E0M, 3O "$ -t$ OE1, 5F <$ &d$ ME3, Richardson #$ /a8ardo "ugar -o$, 0O1 B$ "$ OO, 3E "$ -t$ OME, E1 <$ &d$ FM9$ *e prefer, howe#er, to deal with the appellant?s contention on broader grounds$ !he motion to stri,e out was made upon all the pleadings, and the complaint alleged that the plaintiff was a "wedish corporation, an a#erment which remained unchanged, despite amendments of the complaint in other respects$ !he amended counterclaim also alleged incorporation of the plaintiff$ In its repl' thereto, the plaintiff, appearing speciall', shows b' its attorne' that Jthe plaintiff is an agenc' of the friendl' foreign so#ereign go#ernment of "wedenJ9 that the counterclaim is in effect a suit against such go#ernment, and Jas such is not maintainable in this court without the consent of the plaintiffJ9 and that the plaintiff does not S011 consent to the determination of the counterclaim$ !his is not an appearance b' the ,ingdom of "weden as a part' to the suit, nor the assertion of immunit' b' that ,ingdom$ It is an assertion b' plaintiff corporation of a claim of so#ereign immunit'$ (ut the assertion of the so#ereign?s immunit' cannot be made b' a pri#ate part' litigant$ In &) parte Muir, 05O B$ "$ 500, O1 "$ -t$ 1F5, E5 <$ &d$ 3F3, it is said that a foreign go#ernment?s claim of immunit' for an arrested #essel ma' be asserted, either b' its appearance in the suit, or b' the appearance of its accredited representati#e, or b' diplomatic representations to our go#ernment which result in the Attorne' ;eneral of the Bnited "tates suggesting to the court the foreign go#ernment?s claim of immunit'$ In !he ;ul +8emal, 0EO B$ "$ 91, OO "$ -t$ 0OO, EF <$ &d$ 5MO, the claim was set up b' the master of a #essel admittedl' owned b' the !ur,ish go#ernment9 but the claim was held ineffecti#e, because made b' one not dul' authori ed to #indicate the owner?s so#ereignt'$ "ee, also, !he "ao Vicente, 0E1 B$ "$ 151, O3 "$ -t$ 15, EM <$ &d$ 1M99 &) parte !ransportes Maritimos, 0EO B$ "$ 115, OO "$ -t$ 03E, EF <$ &d$ 5F19 !he "'l#an Arrow, <$ R$ 519036 P$ +$ 1O$ !hese cases, and the reasons for the rule the' la' down as to the methods of asserting the immunit' of a so#ereign, were carefull' anal' ed b' Judge 2and in .unglig Jarn#agsst'relsen #$ +e)ter T -arpenter, 311 /$ F91 5+$ -$ A$ P$6$ It is unnecessar' to re#iew them further$ 4ur own case of 4li#er Am$ !rading -o$ #$ Me)ico et al$, supra, went on the ground that, while the action was nominall' against both the go#ernment of Me)ico and the Aational Railwa's of Me)ico, it was in realit' a suit onl' against the Me)ican go#ernment, the Railwa's being Jmerel' a name$J !he appellant, howe#er, contends that cases relating to 8urisdiction in admiralt' are not controlling in a common7law action, and that in the latter the plea of so#ereign immunit' ma' be set up in accordance with the state practice, which is said, on the authorit' of +e "imone #$ !ransportes Maritimos +o &stado, 199 App$ +i#$ E10, 191 A$ P$ "$ FEO, to permit the issue of immunit' to be raised b' such a repl' as plaintiff filed$ *hether this is the state practice we need not decide$ If it is, it could not control as against the rule laid down b' the "upreme -ourt in the cases abo#e cited$ !he reasons for re%uiring an accredited representati#e of a foreign go#ernment to present its claim of immunit' are as potent when the claim is founded upon an assertion that a corporation defendant is an agenc' of the so#ereign as when it is founded upon the assertion that an arrested #essel is the go#ernment?s propert'$ In either case the court presumpti#el' has 8urisdiction and ma' proceed unless the so#ereign ob8ects$ -onse%uentl', when a pri#ate corporation is sued at law, we do not thin, it is enough for an attorne' to appear for it and sa' it is a go#ernmental agenc', and in his opinion immune from suit$ In "harp?s Rifle Mfg$ -o$ #$ Rowan, 3O -onn$ 309, 91 Am$ +ec$ M0F, it was decided in a carefull' reasoned opinion that a plea was insufficient which set up that the defendant held in trust for a foreign go#ernment the propert' sought to be reached b' the plaintiff$ !he go#ernment must claim immunit' for its agent, and should do so in as formal a manner as when go#ernment propert' is sei ed$

Ao precise authorit' has been found, but reason and the analogies of the cases alread' cited support the #iew we announce$ It is possible that the Railwa's ma' be a corporation similar to the &mergenc' /leet -orporation, and no more entitled to so#ereign immunit' than it$ "ee "loan "hip'ards #$ &mergenc' /leet -orporation, 05F B$ "$ 5O9, O0 "$ -t$ 3FE, EE <$ &d$ ME0$ It is e%uall' possible that the Railwa's ma' be entitled to the so#ereign?s immunit', but that the so#ereign does not wish to claim it$ If such protection is to be granted, it must be claimed in the formal and recogni ed mode$ Much of the appellant?s argument proceeds upon the assumption that the counterclaim is conceded to be against a so#ereign go#ernment, but we do not thin, the record bears this out$ !he amended counterclaim alleged the Railwa's to be a "wedish corporation$ A general denial is not enough to raise the %uestion of incorporation under -i#il Practice Rule 939 there must be a specific allegation that the part' is not a corporation$ Joint7"toc, -o$ #$ Aat$ -it' (an,, 0O1 A$ P$ 3EF, 1OF A$ &$ 5509 <'nett #$ "ea (each R'$ -o$, 1MF App$ +i#$ 110, 1EO A$ P$ "$ 11099 Aic,erson #$ -anton Marble -o$, 35 App$ +i#$ 111, 5O A$ P$ "$ M15$ !he Railwa's? repl' contained no such specific allegation$ Although unnecessar', prima facie proof of incorporation was made b' the introduction in e#idence of the admission of this fact contained in the plaintiff?s complaint$ *e find no proof which contradicts it$ It is true that Mr$ !ausen, an officer of the Railwa's, was appointed to his office b' a ro'al commission9 but it does not necessaril' S011 follow from this that the Railwa's was not a corporation$ It is true, also, that Mr$ <ange?s affida#it, in opposition to the motion to produce papers, states that the Railwa's is a department of the go#ernment of "weden, and is not an independent corporation$ (ut this affida#it is not e#idence in the case$ At most it can be considered onl' as a suggestion b' an attorne' of the court that the part' sued in the counterclaim is not a pri#ate corporation but a department of a so#ereign go#ernment$ "uch a suggestion, howe#er, as alread' indicated, must be made b' an accredited representati#e of the go#ernment$ Aumerous errors are assigned with respect to the order of April 11, 190F, re%uiring the production of correspondence$ !his order was sought pursuant to section M0O of the Re#ised "tatutes 50F B"-A V E3E6$ !he affida#it in support of the motion for the order set forth that there was reason to e)pect that the plaintiff would attempt to show that its attorne' had no instructions to allege in the original complaint that (ei8er T -o$ was the agent of the plaintiff, and that, if plaintiff sought to contradict or %ualif' this admission of agenc', then all the correspondence bearing on this %uestion would be admissible$ !he order entered thereon directed the plaintiff to produce upon the trial all letters and cables in its possession or under its control, or copies, if the originals were not a#ailable, relating to this case, or to the contract out of which it arose, or to the relation between (ei8er T -o$ and the plaintiff with respect thereto$ !he motion of +e)ter T -arpenter, upon which the order was entered, had re%uested that the consul general of "weden and the "wedish legation be also included in the direction to produce, but the order as entered was limited to the plaintiff$ +ue to the illness of the 8udge who heard the motion, it was not granted until after the trial had begun, and because of this the Railwa's applied for an ad8ournment, and also mo#ed to withdraw a 8uror$ (oth motions were denied, and such denial is assigned as error$ Bnder this order, the defendant demanded of plaintiff an inspection of files of the consul general and of the Minister of "weden relating to the case, as well as the files of plaintiff?s attorne', and the trial court directed the latter to produce the papers at his office for inspection o#er the wee,7end$ Pursuant to this instruction, Mr$ <ange?s files were produced and e)amined$ !he minister certified he had no papers relating to the case, and the matter was dropped as to him$ !he consul general sent his file under seal to Mr$ <ange?s office, with a certificate that it constituted the official files from the consular archi#es, and that he reser#ed Jall rights, pri#ileges, and immunities as such consulate general$J !he seal was bro,en and the file was e)amined b' defendant?s attorne'$ -ertain of the documents so produced and e)amined were introduced in e#idence on behalf of the defendant when the trial was resumed$ As defendant had anticipated, the plaintiff disputed Mr$ <ange?s authorit' to ma,e the allegation of agenc', and offered e#idence to pro#e that (ei8er T -o$ was not the Railwa's? agent$ !he %uestion of its attorne'?s authorit' being thus raised b' plaintiff, and part of the correspondence bearing on that %uestion being offered b' it, the attorne'?s pri#ilege was wai#ed, and all the correspondence became admissible$ 2unt #$ (lac,burn, 10F B$ "$ OEO, 9 "$ -t$ 105, 30 <$ &d$ OFF9 *hite #$ !hac,er, MF /$ FE0 5-$ -$ A$ 569 *estern Bnion -o$ #$ (altimore !el$ -o$, 0E /$ 55 5-$ -$ "$ +$ A$ P$6$ !he most strenuous attac, upon the order is directed to the fact that b' #irtue of it the defendant

obtained access to the file of the consul general, who had been the intermediar' in correspondence between the plaintiff and its attorne' !his is said to ha#e been a #iolation of the treat' rights of "weden under the consular con#ention of 1911$ !he order directed the plaintiff to produce papers which it possessed or controlled, but it was construed b' the parties and the trial 8udge to re%uire the production of papers of the consul general$ In this connection the following collo%u' occurred between counsel for the plaintiff and the court= JMr$ <ange= S S S "o far as the consul general?s files are concerned, the consul general will produce his files in accordance with the order, in court$ *e cannot consent that Mr$ 2aight go into the consul general?s office$ S S S J!he -ourt 5interposing6= (ut the situation is this= Judge !hacher has made an order directing that the papers be produced9 but their production does not amount to a row of beans, unless it is done at a time when the papers can be e)amined, and the fact ascertained as to whether or not the' are of an' #alue in this litigation9 so 'ou will arrange with the consul to produce the papers at 'our office$ JMr$ <ange= Pes9 that part will be all right$ J!he -ourt= And let Mr$ 2aight go there to7morrow and e)amine them$ JMr$ <ange= !hat part is all right9 but S010 I want to ha#e it understood that the e)amination at m' office, or an' place outside of the court, b' Mr$ 2aight, will be with the same force and effect as if it were made in court$ J!he -ourt= Pes9 an' remedies that 'ou ma' ha#e as a result of that e)amination will not be pre8udiced$J *hether the correspondence should be deemed part of the official archi#es, whether the consul?s certificate Jreser#ing all rightsJ was a sufficient insistence upon his pri#ilege, and whether the e)amination of the papers under these circumstances was in truth a #iolation of the treat', are %uestions which we thin, unnecessar' to determine$ If it be assumed that the consul could not lawfull' be re%uired to produce the papers, and that the court?s remar,s were e%ui#alent to an order that he do so, b' what principle can the plaintiff ta,e ad#antage of that errorL *here testimon' is pri#ileged, and the witness wai#es the pri#ilege, or the court disregards it, the part' against whom the e#idence is used cannot complain of the error$ -lo'es #$ !ha'er, 3 2ill 5A$ P$6 5EO9 Morgan #$ 2alberstadt, E1 /$ 590, 59E 5-$ -$ A$ 069 *igmore, &#idence 50d &d$6 V 00M1$ &#en e#idence obtained b' theft or other illegal means is admissible$ <egatt #$ !oller#e', 1O &ast, 3109 Adams #$ Aew Por,, 190 B$ "$ 5F5, 0O "$ -t$ 3M0, OF <$ &d$ 5M59 2ernande #$ (roo,dale Mills, 011 App$ +i#$ 305, 19O A$ P$ "$ 0F39 -luett #$ Rosenthal, 111 Mich$ 193, 5F A$ *$ 1119, O3 Am$ "t$ Rep$ OOE9 A$ P$ -$ T 2$ R$ R$ -o$ #$ Bnited "tates, 1E5 /$ F33, FO3 5-$ -$ A$ 16$ *hile the federal courts hold that the use of e#idence illegall' obtained b' federal officers #iolates the constitutional rights of a defendant in a criminal proceeding, the rule is not e)tended to illegal sei ures b' pri#ate persons, nor to ci#il suits$ *ee,s #$ Bnited "tates, 030 B$ "$ 3F3, 3O "$ -t$ 3O1, 5F <$ &d$ E50, <$ R$ A$ 1915(, F3O, Ann$ -as$ 1915-, 11MM, (urdeau #$ Mc+owell, 05E B$ "$ OE5, O1 "$ -t$ 5MO, E5 <$ &d$ 11OF, 13 A$ <$ R$ 1159$ It has e#en been held that the forcible abduction of a person within the territor' of a friendl' foreign power, in order to bring him within the 8urisdiction of a domestic court for trial for crime, presents no #alid ob8ection to his con#iction$ .er #$ Illinois, 119 B$ "$ O3E, M "$ -t$ 005, 31 <$ &d$ O01$ As to sei ure of propert' within the boundaries of a foreign state, see !he Richmond #$ B$ "$, 9 -ranch, 110, 3 <$ &d$ EM1, !he Anne, 3 *heat$ O35, O3E, O <$ &d$ O0F$ In the case last cited it is said that the assertion of the #iolated rights of the foreign so#ereign must be made b' his proper diplomatic agent$ "o, in the instant case, if the rights of the "wedish consul or his go#ernment were infringed 5upon which we do not pass6, the plaintiff corporation is in no position to assert them, or to complain that the documents were put in e#idence$ 4b8ection is also made that the order was so broad as to amount to a Jfishing e)pedition$J *e thin, it is not sub8ect to this charge$ +e)ter T -arpenter were see,ing e#idence to support their own case, which re%uired them to pro#e that (ei8er T -o$ was the agent of the Railwa's, or that the latter had ratified their contract$ !he order was sufficientl' limited in this respect$ "ee -arpenter #$ *inn, 001 B$ "$ 533, 31 "$ -t$ EF3, 55 <$ &d$ FO09 (loede -o$ of (altimore -it' #$ Joseph (ancroft T "ons -o$, 9F /$ 1M5 5-$ -$ +el$69 "haefer #$ Int$ Power -o$, 15M /$ F9E 5-$ -$ "$ +$ A$ P$6$ Aor do we see an' abuse of discretion in failing to grant an ad8ournment, or to permit the plaintiff to withdraw a 8uror because the order was ser#ed after the trial was under wa'$ !he motion for the order had been argued in March, and no pre8udice to the Railwa's was shown to ha#e occurred from the refusal of an ad8ournment$

/inding no re#ersible error, we affirm the 8udgment$ )dd 7orld health organization vs aquino, %4 &'() *%* !"7*# 2erein petitioner, in behalf of +r$ Verstu'ft, was allegedl' suspected b' the -onstabular' 4ffshore Action -enter 5-4"A-6 officers of carr'ing dutiable goods under the -ustoms and !ariff -ode of the Philippines$ Respondent Judge then issued a search warrant at the instance of the -4"A- officers for the search and sei ure of the personla effects of +r$ Verstu'ft notwithstanding his being entitled to diplomatic immunit', as dul' recogni ed b' the &)ecuti#e branch of the go#ernment$ !he "ecretar' of /oreign Affairs -arlos P$ Romulo ad#ised the respondent 8udge that +r$ Verstu'ft is entitled to immunit' from search in respect for his personal baggage as accorded to members of diplomatic missions pursuant to the 2ost Agreement and further re%uested for the suspension of the search warrant$ !he "olicitor ;eneral accordingl' 8oined the petitioner for the %uashal of the search warrant but respondent 8udge ne#ertheless summaril' denied the %uashal$ Issue. *hether or not personal effect of *24 4fficer +r$ Verstu'ft can be e)empted from search and sei ure under the diplomatic immunit'$ (uling. !he e)ecuti#e branch of the Phils has e)pressl' recogni ed that Verstu'ft is entitled to diplomatic immunit', pursuant to the pro#isions of the 2ost Agreement$ !he +/A formall' ad#ised respondent 8udge of the Philippine ;o#ernment?s official position$ !he "olicitor ;eneral, as principal law officer of the gor#ernment, li,ewise e)pressl' affirmed said petitioner?s right to diplomatic immunit' and as,ed for the %uashal of the search warrant$ It recogni ed principle of international law and under our s'stem of separation of powers that diplomatic immunit' is essentiall' a political %uestion and courts should refuse to loo, be'ond a determination b' the e)ecuti#e branch of go#ernment, and where the plea of diplomatic immunit' is recogni ed b' the e)ecuti#e branch of the go#ernment as in the case at bar, it is then the dut' of the courts to accept the claim of immunit' upon appropriate suggestion b' the principal law officer of the go#ernment, the "olicitor ;eneral in this case, or other officer acting under his discretion$ -ourts ma' not so e)ercise their 8urisdiction b' sei ure and detention of propert', as to embarass the e)ecuti#e arm of the go#ernment in conducting foreign relations$ !he -ourt, therefore, holds the respondent 8udge acted without 8urisdiction and with gra#e abuse of discretion in not ordering the %uashal of the search warrant issued b' him in disregard of the diplomatic immunit' of petitioner Verstu'ft$

schneck$urger vs moran, +3 :hil6 *%" Aature= 4riginal action in the "upreme -ourt$ Prohibition$ /acts= "chnec,enburger, who is an honorar' consul of Brugua' at Manila was subse%uentl' charged in -/I7Manila with the crime of falsification of a pri#ate document$ 2e ob8ected to this sa'ing that under the B" and Philippine -onstitution, the -/I has no 8urisdiction to tr' him$ After his ob8ection was o#erruled, he filed a petition for a writ of prohibition to pre#ent the -/I from ta,ing cogni ance of the criminal action filed against him$ Aside from this, he contended that original 8urisdiction o#er cases affecting ambassadors and consuls is conferred e)clusi#el' upon the "upreme -ourt of the Philippines$ Issues= 1$ *4A the B" "- has 4riginal Jurisdiction o#er cases affecting ambassadors, consuls, et$ al T such 8urisdiction e)cludes courts of the Phils$ Ao$ /irst of all, a consul is not entitled to the pri#ilege of diplomatic immunit'$ A consul is not e)empt from criminal prosecution for #iolations of the laws of the countr' where he resides$ !he inauguration of the Philippine -ommonwealth on Ao#$ 15, 1935 caused the Philippine -onstitution to go into full force and effect$ !his -onstitution is the supreme law of the land$ It also pro#ides that the original 8urisdiction of this court Hshall include all cases affecting ambassadors, consuls et$al$I 0$ *4A original 8urisdiction o#er cases affecting ambassadors, consuls, et$ al$ is conferred e)clusi#el' upon the "upreme -ourt of the Philippines H!he "upreme -ourt shall ha#e original and appellate 8urisdiction as ma' be possessed and e)ercised b' the "upreme -ourt of the Philippines at the time of the adoption of this -onstitution$I According to "ec$ 1M$ of Act Ao$ 13E and b' #irtue of it, 8urisdiction to issue writs of %uo warranto, certiorari, mandamus, prohibition and habeas corpus was also conferred on the -/INs$ As a result, the original 8urisdiction possessed and e)ercised b' the "upreme -ourt of the Philippines at the time the -onstitution was adopted was not e)clusi#e of, but concurrent with, that of the -/INs$ !he original 8urisdiction conferred to "- b' the -onstitution was not an e)clusi#e 8urisdiction$ Judgment= -/I has 8urisdiction to tr' the petitioner, and the petition for a writ of prohibition must be denied$