RECE NT DECI SI ONS

l)hilippine Supreme Court

DECI SION CONDENSED
ACT 3688 -
OF THE
COURT.
GDVERN)IENT OF' T HE PHILIP.
PI NE I SLANDS. plaintiff-appel.
lee, V! . TI-1 \'ISAYA K SURE-
TY & I NSUHANCE CORPORA-
TION, dr.'fendnntruppcllnnt. G. R.
No. 46HI;J , October 10. 193B.
C. NCEPC10 N , J.:
On October 23, 1931 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
f or materials supplied to 1\1. de los
Reyes. a conLract cr of 11 Government
project in Cebu. the appel-
lant herein.
On the same dat e the COUl't or-
dered all olher eruditol'!! of the said
<vntractor to bc notified of the ac
tion. To that e(feet publication
was ordered in "The Advertiser," 8
papez' 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; sup-
plied them LO the contractor.
On Janua ry 30, 1!)35, the coun
rendered it! deci s ion ordering the
defendant to pay l he Yudoll! SUnlll-
proved. On appelll, the defundllnt
alleged that the court lacks juris-
di ction over the case, and that Act
No. 3688 ill unconstitutional.
The all eged lack of jur isdiction
was based 011 t he Collowi ng grounds;
(a) that the pre!entatioll of the ac-
tion is prematm'e ; (bl that t he pro-
cedUl'e laid down by Act 3688
f or 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 notice was not pub-
lished ill any newspaper; (e) that
the order oC October 23, 1934 is il-
legal; and (f) t hat the conlraetol',
M, de los Re)'es has not been includ-
ed 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 Gov-
ernment had not cxpnssly waived its
right to institute Iln action 011 the
pi'!nal bond. nor authorized the cr('d-
hOI'S to bring the actioll, thc action
in.!!tituted is premature. It is a fact.
however, tha t on St!ptcmber 10, 1934,
[he Engine<'r of <Ii-
reNe<! a letter to the Pacifk Com-
mercial Company authorizing it to
br ing the present action against M.
de lol' Reyes. Without deciding
whether t his letter is an express
woiver all the part of the Govern-
ment or its r ight to institute the ac-
t ion, then is howc\'cr, the fact thal
U Jleriod cf more than sh:: months
had elapsed from and since the ac-
ceptance o( the tlnished work on
July 8, 1931 until the order of Jan-
uary 30, 1936 was render ed. Act
N(l. 3688 pl"e.scrves in favor of the
Government a right of preferem:e
within the period ot !;i x months fol-
lowi ng the acceptance of the work.
Without the Government' s present-
ing Bny action against the appel.
, <0 PHILIP PI NE LAW
tan t dudng this period or any t.ime
nflcrwul'ds, it is evident. that
GOVc.tlHllc.nt had 1(lst its righ\. of
pl"cfel"cncc over the cl'editors f or la.
bor and materials
( h) The contcntion that I hc 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 t h:lt. ll:e
office uf t he Distr ict li:ngineel' of
Ccbu is the I"epresentntivl.! in Cebu
of the Bureau of Publ ic Workll of
the Go\'el"nment. The letter of the
DistJ"ict. Engineer should be consi-
dered as a eommunieation sustained
by the nuthority of the Dil'ector of
Public WOl"ks.
(c) Anot her reason alleged is that
)] 0 noti ficnti ol1 persona l 0 1" othcrwise
\\";'5 made to the As sta t
ed by the lowel" c!: Ul"t, any obj ection
in this l'espect can not favor t he
defemhlllt. The legal prOVISIon
which sa id noti ce is fOl" the
llt o!ecti o1l oC creditors of t hl.!.
contl"aetOl", and t hCI"efol'C the only
parties who ean I1Hlke the objccti \' n"
ttl) The appellant contends fur
tlwrnt ore that t he notice according
to Act Nn" 3688 shoul d have been
Jlublished in some newspa]lCr of gen.
el"a l cil"culntion, il nd the Ol'del' was
publi shed onl y- according to appel-
lanL--ln one papel" "The Advenis
et"" We believe t hat t his is suffi-
cient, al though t here are
morc t han newspaper in Cebu,
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! attiClIl,
daimed ill egal in having fixed
13, Ifl35 li S the h.'lt day
fo r prescnt ing cl a ims, whe!'cns Act
No" 3G88 provides t hat such claims
can be ]lre!lentetl IInytime within onc
velll" fl" : m the day the work was ac
by the GovCl"nmenL If there
Wa9 an)' anomaly in this ol"dcl", it
is the de.fendant that has the
right to all ege 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 j urisdi cti onal
and since t he order is null ub i)l i ti;
the court ncvel' acquil"ed
t ion over this case" Since the 0 0'(11.'1'
wus pub!hdled in the form pre.
scribed by the law, we beli eve t hat
t he),e was substan ti a! compliance al.
t hcugh the period' fixed fOI" th" p)'e.
sentation of claims had been CUt.
tailed. It ill al so claimed that t he
extension o[ the period fOI" the pI"e.
"entnt.ion of clai11ls aftel' Febl"ua)'y
13, 1!)35 without publication of sai d
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"thel" ex-
t ension is no long-er jurilldictional
as long us it is wi.hin thl' pl!ril,Jd of
one yeal' set. out in Act
(r) The last defcCl
t h(, contrnctur has not been includ-
ell as pal"ty defendant- is of Illel'it"
But it is sufficient tu call atten tion
to tht:' of the penal bond
which makes the conn'actOI' and de
fendant 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.i n" the
dcbtur's ill"Operty, when, as in this
case, the defembnt bounrl
Sillid;u"ily wi t h the debtol"" (C!l nt:\
lOU de Conlercio VS. Puu Tj' Ching
l /j JUI'. ViI.. 411: Inchausti y Cia"
vs" 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 not. pa)'t"lcs t.o the
conn'ad of l'urety have no right. of
acti on ag:ainst the sUI'et.y we cite the
pr ovision ct Act No" 3688 under
wh ich it is expre!;lIly pl'ovided that
"all petsons, companies 01' corpora-
RECENT DECI SIONS 3<1
ti ons who had f ur nished labul' or
materials pnymen t fol' which
had not been made shnll hnvc th!:
right to inter vene and be made pur-
ty t o any action instituted by t he
Goverlllncnt of the Philippines."
T he olher error alleged is the fail-
ore of thE' to dee\aJ'e Act No.
3688 unconstitutional, and in not
having thcl"!'.foJ'c dechu'ed the penal
bond null and void. Appellant
cl a ims that Act No. 3688 obliges the
to present n penal b;md
not in (avol' of the Govern-
nJent., hu t also in favor of those
persons who supply him with lab:)}'
und mutcrials, This is ch,imcci as
d ass legislation in thut the same
'pri vil cge is not extended to persons
who likewise supply labor lind rna.
terials in cases of privnte cont!'!lcts.
Appell ant Jurther claims that the
law imrail's the obligation of con
tract in that. it concedes favors t u
persons not part ies to thc same.
Bot h contenti ons arc u ntenable,
The Government ill said law obliges
all who contrllct with it to fil e
a bond under ccrtain terms an d con-
ditions, wi t hout exempting [rom thig
obli ga tion any contractor whatso-
ever, The PI'otccts it--
self whel1 it imposes this obligation ;
and li kewise Pl'Otccts itself when it
extends the bUild to COVCI' whatever
claim t hird persolls may have
IIgai nst the cont.'actor by virtue of
labor 01' materials supplied, The
slime privilege is not extended to
contracts bE'twecn privat e Ilersons
beca use the palties il1 ll ri vntc con-
tracts c\lght to know how to pl'Otect
themselveJ; in II ma nner which t hey
beli eve best for their illterests,
No)' can it be sllid that t he law
impair!:' the obligatiol1 of cont ract
becaust! it docs not in effeet change
or al t er the ter mJ; of the contract.
And in t h is respect the law not
uncons t it u.t ional.
111V}Joirme1lt of Obligat'io'lI _ fl . in
gIJnc1'al, Any enactment of a legis-
lative 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 him of the
!TIcnns of enforcing such a l'ight.
B llL it Illll).' be said in general th at
a law which does not lill'ike at thc
vitality of a contl'act either by al-
tering its terms 01' preventing its
and enfOI'cement doc!!
IlIlt impaiL' its * * (12
C, J , 10(,6,)
"A law rives not impni r the oblig-a-
tion of a cuntract within the menn_
ing of the COl1stitut ion. if neither
pal'ty is relieved theJ'eby from per -
forming anything of t hat which he
obligated himll clf to do, Bilt if eith-
er pal'ty is abs- lyed f r om perform-
ing any (If lhese thing!!. such obliga_
tion is impaircd, wh e'thcr, absolu-
tion is affected dil'ectly and express_
ly OJ' indiJ'ectly, fllld only as the l'c
!lult of some modification of the le-
gal proceedings fOI' enforccmcnl."
State ex J'el. NlI tional Bond & Secur-
Co, v. KrahJn(:l'. 105 1\[illl1, 422,
11 7 N, W. 780, 21 L, R, A. (U. S, )
157. Footnotes, I COOley's Constitu-
tional Limitations p , 583 8th Ed.
I n the light of the abo,'e dot:trines
we do IIOt see how the appellll nt can
st ill maintain that the law alters
the cbligat ioll 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 t herein,
Neither of t.he othel' enOl'S al-
kged are of merit, J udgnU'nt
firmed with costs. against the appel_
!unto So ordered,
(Avnnceitn C. J ,; Villa Real,
Abnd Santos, I mpel'ial, Diaz, Lau-
re! J. .J. . concu rring.) COI!<ic;Hsed
/'11 'VIl,J,\AM E, Dy LtACCG.
342
PHILIPPI NE LAW JOURNAL
DIGEST OF DECISIONS
REAL EsTATE
SION' Of' SUBSEQUl:!';"T MORTGAGES IN
F01U';CLOSURE OF PRI OR l\IORTGAG&-
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 appel-
lants; and nfter trial, decreed the
inscription of auid lands in the
name of ihe opposiim", According
to the stipulation of fat'ts. lands
original!y belonged to the spouses
Baltazat' Raymundo and Agapita
San Juan; the lands were mort-
gaged to appellee on June 20, 1!l24
t o guarantee the payment of P5, OOO,
t1\e mortgage deed being duly t'eg-
istered; Oil 26, 1928, the
lands wen' sold by the ol'igi!ll.tl own-
en; to Ambrosio Santiesteban and
Benita Lambengco, the deed of sale
being likewi se registered; appellee
sue!\ the original OWnel'S on August
20, 1930 ior the payment of the
debt , which the latter were sen-
tellced 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 ap-
pl'oved by the court; upon the death
of Benita Lambengco pro-
ceedings wel'e instituted, and the
1:11lds in were adjudi -
cated to the widowCl' by virtue of a
partition deed duly aplJl"oved by the
ccurt; Ambrosi o Santiesteban sold
the hinds to the applicants on Nov,
ember 29, 1932, the deed ot sale
being also ]'cgistcred, The "1.dal
COUIt denied th(' motion of the np-
pellant fOl' II new hial. fi eld: (1)
The contention of appellants that
the forec!osu]'e s uit instituted byap-
pelleI' against the original owners,
as well as the decision therein, can_
not affect them, because t heir pre-
deceSsors 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 Pro-
cedul'e, cunnot be sustained. I n 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 insti-
tuted by the first mortgagee; this
doch'ine was reiterated in Govcl'n-
ment VS. Cajigas, 55 Phi!. 667, the
COUl"t further holding that the fail-
ure 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,
The same JlI'inciples should apply in
the case of u PUrchAser of rcal prop-
erty pr eYiously 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 redemp-
tion of the applicants, (2) The sti-
pulation in the mortgage deed in
favor of appel\ce knuwn as the pact
de non ulienando, obliging the mort-
gagors not to seU 01' encumber the
mortgaged without the
writte.n consent d the appellee, did
not cause the annulment of the sub-
sequent 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.;CISJONS 3<3
purchascl' 01' including hinl as de.
fendant, ( 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 Ed .. 82 H;Z4; Citizens' Bank
of Louisiana v, 1IIillel' et aI, 10 S,
Rep., 779782), (3) No CI'1'(I]' was
commi tted by the lower courl in
denying the motion for nell' trial.
because altho the pI'oof cffel'ed \\"el'e
admitted and even if it wel'e re
garded as newly di scovered, which
is not the case, the same would not
hnve influenced 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) Neith-
er was it errol' to set aside t he
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't unity 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'edcmpti on by
the applicant-appellants, J udgmellt
modified, (Pe l' [mperi al, J, Avan
ceit a, C. J" Villa.Rcal, Abad Santos,
Di az, La ut'el and Concepcion, JJ"
concu r ring, ) B,'ie/cd by RAl-'AU C,
CL.HtACO,
C RIMINAL PROCI,;DUJU:.- RI GHT 01-'
CoMPLAINANT TO ApPEAL AN
OnDER DISMISSING CASE. - P eojJ/e 0/
tile Philippines VII. All/ollio Rataller,
a ccWled. apIJellce; COllsltwcio BarcQ-
ma in. briHl1/ 1)/ hill (/Olluittel', SO
CO'N"I) Barcomn. I)/ff;l.lld,'(/ 1XOty 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
in behalf of hi s mino!' daughter So-
COITO Bal'coma, the appellee was
tried and convicted by the justice of
the peace court of slight physical
injuries, {rom which judgment np-
l}ellee appea led to t he Coul't of First
Insta nce, The cnse thus pending on
appea l, the acting provi ncial fiscal
filed II motion Ii sldng fol' the dismi s-
sal of the case 011 thc groum\ thnt
BatAlIel' was not cdminully liuule
for the act romplaincd of. 1'>1:.: tion
gmnted and cuse was dismissed with
costs de officio. Constancio Sarco-
ma then nloVlld fOI' a reCOIlgidel'a
tion of the ordcr of dismissal, but
motiOn was dcnice! , Hence thi s ap-
peal. Did the c:.: m't below er,' in
dismissing the case? Jleld: It did,
From the r elevant provisions of law
(Sec, ]07, Code of Criminal Pmcc-
durc), it is cleal' that the person
claiming to be injured by the com.
mission of an offense hus the right
to be heard at 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 deci-
sion of t his court in Gonza les v,
Judge o{ the Cou r t of First I n,
stance of Bula can et Ill.. G, R. 45233,
The Cl' ime of physical injuries in-
volves civil liability, and the in.
JUI'cd party hail a J'ight to prescnt
evi denc(' to 6UPPOI't a claim for dam-
ages. Onler appealed fr0111 set
aside, (Per Abad Santos, J " Avun-
rcna, C. J " VilIaReal, Di uz, Laurel
il ild Concepcion, JJ" concurring,
Briefed by RENATO D, TAYAG,
ClUMU-"AL LAW-SUBORNATION
PEIUURy- ORDEn OP DISMISSAL--Ap .
PF.AL BY PHOSECUTION,- P cople Qf the
<144 PHILIPP I NE LAW J OURNAL
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-
(IIItaPI/ellett. r;. R. No. /,5618, Octo-
bl!l' 1,., 1!<3S,- T he defendant!J were
accused of the erin\(' of perjury,
The Fiscal petitioned the tl'ial COUIt-
to dismiss the Clise agHinllt El'mi nia
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 re-
sumed, he! petitione!d for 11
of the case CII the foll<lwil1g
gl'ounds: 0) That inllsmuch a,
wns 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
in the act complained of har!
been exclude.d from 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 sus-
the 1st jtround of the Ilet i.
tion, The [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
di smissal all the merits rOl' two
I%"I"0Ulld>l: (1) Having withdrawn his
plt'a of guilty and not hal'ing made
a pIc:! when the ol"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 finally
Hblloh'e the accused and is I\ppepl-
able. (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 dis
mi!'sn l liIed in the trial comt. i'/rld:
( I ) Exelu!ii on of the accused Ermi -
niu fOl' the purpose of being ulled
a!l n witne!!lI docs not
affect. the IItnt1UJ of her co_accul\ed.
It docs not mea n that lIhe is inno-
cent c:f the crime chnrged but that
she appears to be the lells guilt)"
and her testimony nccessary to pro-
S()l!ute those mon.' guilty, (U. S, VIS.
Abanzado 37 Phil. f>58L (2) Ad-
mitting 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 IJer-
Ions guilty as principab, !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 coop-
n ation. I n ('ithe!' ease, he comes
undt'\" the lUlIt two pRl'ngraphs
d Article 17, Hevi scd Penal
Code. Order appealed from I'e.
versed, and case N!munded to hwer
COtll't for furLher
(Per-
C.J.;
perinI.
ring,)
Concepcion, J.; A vnnccna,
Villa Heal, Abad Santo'), lm-
Diaz, L:lIlrcl, J, J., concur-
BJ'kff(1 I,., DlOscono SARILE.
C!lIMINAL L AW AND PItOCrntJRE-
MURDt;n - CONSI' IRACY - CALU:o;'C
Nt;w W1TNt;SS,-Thl' J>f1(1JI/O (1/ III1J
PhiU/II,illfS, pl"i/lri//.a111Ir/lcfI VB,
Duit/eric de. Clls'ro y 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 ( 1) In per-
mitting the Fiscal ovel' the objection
of the defense, to call at thC' end of
the tl'ial II wit ness not included in
the list contained in the infornla-
liQ:I: (2) 1'1 hol(rng th;t the crirnr
was qualified bv treachery: and (S!
In holding that there was c:onsr
ll
-
racv between thc accused and
both are guilt)' of one :md the same
crime, Held: (1) The lower
RECENT DECISIONS
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 di scl'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
t he name Df the witnes! , h : any
case, the substantial rights oC the
accused wei'" nDt because
the defense cDunsel cr05s('xaminc:d
extensively and had o.mple OpPOI'.
tunity ot testing the \'CJ'3.cilr of the
witnes:5, (2) The second assign
ment of errOl'S is likewise untenable,
The 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
Anastaci o 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 defendants challenged him to
come out a nd fight like a man,
Leoncio died sever3.1 hours thcn-
after, It is admitted b)' the
fcnse that the assault made by
Anastaci o 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 along 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
by wll(1.\, happened tD Lupe,
IllS cDntention j,J wi t hout mel'it.
The deceased wa !!' escapi ng from
Anastacio, while LDlle gDt I1 Dld of
Anast aciD, when he was stabbcd by
Desi derio, Under this circumstunce
and cons idering the stute of mind
he was t hclI in. the deceus{'(] could
not determine what haPllCncd to
Lope nor anticipat e that DeBidcrio
would attack him so Sllddenly,
De!!-ideriD attacked without dllnger
to himself, alld so cnexpectedly that
t he deased could not 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 crime;
IIl'c't;md, they met at tile cOI' I'idor;
lind third. Ihl')' challenged the de-
ceased to comc out frDm his pl ace
of refuge, Anastacio's wife
at the La Yebana !lIctDry, and thi s
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 reasnnabl e
tu infer fl'(lm the facts prtWln that
thei r prt'sence the I'! was u. lllere
"'Qincidence. Wh('11 the evidence
from which 11111)' be in
ferred is of nl1othcl' IDg.
ical and ratiDnal up!:mation, it
should Ill'll be cOll si dl'red suffi ci ent
to dcmonstratt' t he I'xlstcnt'e or
Thcl'efol'e, tbe dl'fend.
ants are Cl'iminall y ful'
the each committed, Desiderio
is guilty Df murder qualified bv
11'eaehcry with the Initigatinp- cir-
cumstance or ha\"ing .!url'endel'(:d
immediately to the authodti Cll (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"
Villareal , Abad SantDs, DiIlZ,
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/,l e vI
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 US\llY. the defendant
nJlpeals, assigning as error the fail-
Ul"(,> of the triul eOUlt to uphold his
ddense of prescription, The de_
fendant had illegal inter-
est 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' yeals. 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

"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 fol' not
1110re than one month, or both; ( b)
aHel' foul' years for those punished
b)' imprisonment for more than one
month, but less t hnn 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 shall pre-
sCI'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 regula-
l ion, or conditions of cel' tincates of
public convenience issued by the
Public S(,l'vicc Commissi : n 'Ill
prescribe a fter two months." Held:
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 re-
ceived 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 commit-
ted 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,
(PCI' I mpCJ'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 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 ac-
tion brought by RanHl S Diez against
Homobono Tupas, 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. Lae-
son, the buyer in said sale th<:n pe-
titio.1H..>d. the COUI't f or the return of
the Jlurchase price he 11aid. The
court. denii said motion. indicating,
howeve]" that a sepal'ate action be
brought for such lccovel'Y. .Mean-
while, the judgment Cl'editor, Ra-
mOIl 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 ap-
proved 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
overruled by the lower court, and
n judgment rendered Ol'deri ng t.he
RECENT DECI SI ONS
' 47
widow to rcturn the pHce
toget hcr with the legal
thereon, Held: L:t cson should hllve
presented his ('laim bl'fol'c the com-
mittee 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'd-
ance \\ 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, I mperial, Laurel and Con-
cepcion ,lJ .. concul'I'ing, !\vancefia,
C. J, not taking pa r t,) /Jr;cied by
WU.I, IAM Oy LI ACca,
_ ApPI,IC'A.
TIQN OF ARTI CL.E 2761 OF Tm: RF.--
VIS!:!) AOMINISTRATI\'T. cooE,-r C0111p
of til" Pln'/il"1;,,,' 1'1ofl!li/f,oPIJellcQ
'VB, PrI!dem';o R('vi(/a/, df'frmlllld-
appcl/fUlt, G, R, No, Oc/obel'
13, l,",':8,-Pursua nt to a municipal
ordinance a public auction was h(>Jd
for the lease of public market
I n sa id auction one. Abdon Relevo,
acti ng in the name and for the ac-
count of the defendunt was the high-
ClIt btddel', The infonnntion ill thi
case that the
while he was a municipal councilur
participated in the said public auc-
lion c:: nducted by the municipality
indirectl y thl'\'mgh Relevo his agent,
in viol at ion or sections 2176 and
2761 of the Revised Admini stnHivc
Code the latter of which pl'ovirles:
';Seetion 2761. Holc.ing of prohi-
bited int el'ellt by public officel"_
Any municipu\ or towllllhill cfficel'
who cont rary to Jaw, shall (lirecl.
I,v or indi l'cctJy be interested in :Iny
wo!'k, 01' cockpit, 01' other
pel'mitted game 01' lunusement 01' in
any bus iness of the municipality or
t ownship, 01' in the purchase of I;lny
real estate or any other propCl'ty be-
longing thel'eto IIhall upon convi c-
ti on be imlll'isoned for not less tha n
aix month!!. hor more thnn two
Jidd: At the lime of the
public auct icn the defendant was
not yet a munici pal COWlcilol', Sec.
tion 2761 t hel'efore haa no aJl lllica-
Lion, Said section prohibits only
mun icipal officel'S from having pe-
cuniary int!!"!'!!st jn any municipal
contract, Judgment revcned, De-
fendant acquitted, (Per Diaz, J,;
Avanccfia, C. J" Villu_Real. Santos,
Laurel, and Concepcion, JJ .. concur_
ri ng.) J ustice I mperial 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
f act that at the time ot the public
auction tbe defendant ,,"us already
a munic.ipal councilor, The deci-
sion of thE' lowel' court states "that
the public bid fox the occupation of
said marbtstall number I wa .. held
on December 3. 193-1, in
with the :'llunicipal Ordinance No.
7, se!,ies 1933, while the defendant
WIlS not yet a membel' of the munic-
ipal counci\." The phl'tl.Se "while
the defendant was not yet a IlIl.'m-
her of the municipal coundl" re-
fel' S to the time the ordinance WitS
passed, not to the time of pub-
[ic auction as interpreted by the
majol'ity opinion, Section 2761 or
the Administrative Code should have
bc.>e n appJicd in this case, Bdejed
VII LI NO i\I, PATAJJ,
CADASTIlI\L
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,
,UID8, Oct, 3J, 19"8.-Thi! is nn_
appeal from a of the lower
court which orderld the defendant
PHILIPPI NE LAW JOURNAL
to r eturn to thc plaintiff-ap
pellee thc sum of S'223.2S, with
6', annual interest, In the
cad",strai proceeding of J:lnuary
23, 1919, the Court of Firs t
Instance adjudgcd in (avol' of t he
plai nt iff a pa l'cel of la nd and later
deel'eed the original ccr tifieate of
tJUt;' ill his f avor, On May 20,
t he ('OUl't issued all ordCl' fol' the
paymt;'nt of the costs of the cadas-
!l'al pl'oc{'C(!i ngs amou nting to the
sum of P370,7S, On Octobel' 28,
the Director of Lands l't-'qUil'<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 de-
fendant insisted on the payment of
intcJ'('St.lI, and the 1)lainliff 011 F'cb-
14. 1933. paid under prutest
the !!lai d intel'ests which amounted 1,0
" 261.03 and filed an action fol' the
reeo\'ll'Y of the same, The trial
('ourt the l'etul'n of thc sa id
intel'est s to the Illaintiff.8ppellee.
Hence this appeal, The question t o
be deci dcd is, si nce when was the
plaintiff obliged to pay- tht! intel'cs t s
of lhl' 8um of P370, 7S, fi eld: T he
Iltw docs not exp)'essly provide wh('th_
er in a f'arlast 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 delk of a COI'Y t hel'eof, "'s
is provi ded when it is 8 t/et:igi(HI .. hut
I'ea!!oning [I'om anlliogy, a nd roll -
s i(lel'ing that the purpoile of notifi.
catiOIJ in one and in the othel'
i(!"lItil'a l, t he rule m'l"'t be th p ll ame
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 onlcr.!!
a nr' decisions promulg ated in a ca-
dastral Ill'Oceroin,Q' in the lIalll e mall-
ncr as in the ordillBry
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
notifid t Q the Iliaintif{ by mean!! of
n roPy thert.'Of, And in8SllIuc.h 8S he.
wa,. notified of the same on October
19:30, fl'om thi s date mUl!t be
counted the period f or which he
be liable foJ' the payment of interest,
Judgm.!nt modified and trom the
jlum of P261.03 which al1pell\,(! pai d
under protest as interest, is deduct.
ed the sum of f SI.Ol a! int erest
from October 28, 1930 to FehhlHY
14, .1933. and the balance of " 210.02
to be leturm.'<.I to the appelk'(' with_
out intel'('f!t or cost, Judgment mo-
ditiell. (Per Concepcion J., A\'Qnce_
fi n C, J .. Villa_Hell I, Santos. Impe_
lilli , Dill1., Laurel CQllcul'l'ing) ,
/iI"it/etf 011 R U1't:IIT\.I ESTASlSLA l,
COI'1STITUTIOSAI. LA\I'-ELEX1'ORAL
Jl/li.dk-
t 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 ob-
j ect of the prCI't-ll t p:tition is to have
thi s (,Ol1l't n \'iew tilt' dedsion of the
El ector al Cnmmissil)1\ holding that
JUIlI1 L. Boral' was, unrle:' the Con-
st itut ion, elected i'II embo.>r of the Na-
t ioll al for the thil'd dis_
trict of Samar" and issue an otder
pl'Oh ibitinR' the respondent Auditor
Genel's! (l' om passinI::' in audit nr au-
thori1.ing ill finy way the dishurse-
ment of fund s of Notitmal As
as emoluments for the re-
slllilldent. Juan L, BocaI', and declar-
ing t hl!1t. the laltel' 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 of all contelllll I' elati ng-
to the electi on. l'Ct urns , and quali-
RECENT DECI SIONS
fi cat ions of t he Member of the Na-
tional Assembly_ The lantuage of
th is provision is clear. It \"ests in
the Electoral Commission exclusive
jurisdiction to pa ss upon the Qualifi-
cati ons 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 judici al interference, el(cept,
in any event "upon a clear show-
ing of such urbitnuy and iml)) 0-
vi dent usc of the powel" as will con-
stitute 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 pIoceeding
was r endered by the E lectoral Com-
mission a fter due hcaring. This deci-
sion is final and beyond the authol-
ity of t his court to review_ The pt'ti-
ti on in fhi s case is dis.misscd with
costs. It il! so ordered. ( PCI' Abad-
Santos, J .; Ava ncei'ia, C. J., Diaz,
Concepdon, Horil1eno, and MOl"nn,
J. J ., concurring.) by Ru-
PmTQ T. E STANISLAO.
CIVIL LAW- R IGII T OF WIDOW 1'()
DECEASED H USBAND'S PROPERTY-
SALE 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. Tila..n, (iltjid6l) , defpll.(/unt.
a.ppellee. G. R. No. November
9, 1938.- This is itn appeal {l'om a
deci s 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 8ao-
baocn. 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 arc the jllai ntiffs and
appellants i n 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"Opelty in question, which fact
was admitted as true by Vicenta
Sumaoi whi le still living. On Au-
gust 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
her death she conveyed the Jand to
the herein defendant-appellee who
has since paid the amount of P500
and has occupied and continues to oc-
cupy the propert y. Questions : Did
the. widow Vicenta Sumaoi inherit
the property from the deceased
spnusc.? Did defenda nt Tilan ac-
quire a valid title b)' virtue of the
sale? Held ; (1) No, it is not suf-
ficient 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 Baohaoen, daughter of Ray-
mtUldo Baobaoc.n and mother of the
appellants herein, (Art. 834, Civil
CodoL Nor is it shown that Ursu-
la Baobaoen, life, 01" her heirs
after ber death, tnat is, the appel-
lant!'! herc.in, had assigned such prop-
erty to Vicenta Sumaol in compen-
sation for her claim of that part of
her husband's property, above re-
ferred to. in usufruct, (Art. 838,
Civil Code). (2) From the lot'ego-
ing, it is concluded that when Vi-
centa Sumaof sold the land in ques-
ti on to the defendant-appell ant, she
350 P HILIPPI N E LAW JOURNA L
had 110 valid r ight. and therefore
she eould not dc\!d no,' lrall sfCJ' any
title to th e defendant. who is how-
ever entitled to such l;ght.5 all be-
long lo a purchase r and possesso r
or land in good faith. Reveued, with
costs against the appEllee. (Per
Diaz. J ., Avancciill, C. J., Vill a - Real ,
Santos, ImpcriaJ and Laurel, JJ.,
concurring, Conccl>cion, J .. not tak-
ing part. (JJrI6/ed by RENATO D.
TAYAG.
RF;AL M CRTGAG&-AcT 2938
- REm))lI'TION - P II 1Llf'PI/';E NA-
TI ONAl. BA)lI\ MUST RENDE.'/. Ac-
COUl\'T1NG LF FRUITS GATIIEIU:D.-
I l oddflo G(lrciu. (ul(l So16-
dad L Oll u, 111f1 il1tiff B-Ull]Jcllfwts
VB. Philipphl(l N t i 0 11 It l 8f111k
!l1I(i Emilio J?Odl'iU1IC::. de/em/,..
flltfS-u'P/lCllulIl lI, G. n. No.
Oclo/lel- :fl. . /9."oY.-The plaintiffs-
spouses mo,'tguf!cd I t> parcels of
land to secure a IO'an rrO'm the Phil.
ippi ne National Bank, They faile-d
to pay the sec:md annual amortiza-
tion 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 t he
mortgage contact nece-ssary for the
securi ty and satisfuction of the cred_
it, The court revoked the a r)poi nt
ment of n receive" and authorized
the bnnk to cnte.' of the
Jand in conformiLy with thl! tenllS
of said instnunl'nl. In t he judg-
ment rende.'ed in t he f oreclosure
s uit , the mongll.!,>'OJ>!1 we.'e o.'dered
to pay the- amount of the Joan with
interest and attorneys feell within
three months, The said Jledod hav.
ing expired, the Ilrolle .'ty was sold
in public sale and WIIS bought by
the bank for P12,000, On hIafeh
28, 1934. t he cou rt confirmed the
sale, On Jan, 21, 1935, the bank
sold the property to Emilio Rodri.
for P40,000, the sum of 1'6,000
being paid on the execution of the
CQlltrac:t and the balance was to be
paid in t en 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 t he
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 f OI'eclosu.'c s ui t has not yet been
paid, The lllo,'tgagors then demand_
ed a rendition of Jln nccountlllg of
t he 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 redemp-
tion, the bank cancelled the contract
of sale made with Emilio
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
deni ed the former and granted tbe
latte,', hence this aDpeal by all the
part ies, Held: In ordcr that the
mortgagor may redeem the property,
he must (1) l'xel'cisc rigM with-
in one year frOIll the date nf
tonfil'mation tf the sale by t.he
cou rt, alld (2) pay the amoun t fixed
by the court in the orde. of execu
tion. with intel'cst t hereon ilL the
rate specified in the mortgage and
nil t he costs and other judicial ex-
pens.:'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 administra-
tion of the property mortgaged and
sold i n the public sale, and becomes
owner of the same cnly when the
peri od expi res and no redemption is
made, As guardion and administra-
tor of the property, the bank is
obli ged to render an occounting of
the admini stration when l'equired by
the mortgagor fol' pUl'poses of l'e-
dempti on, To require the mol'tgu-
gal' to poy the amount fixed in the
ol'der of \'xccution with int<:l'(,lIt ;Ind
t he expenses of the sal e and custo-
dy of the prope!'ty, and lose a1110
the fruits and products or the same
against equity, justice, and the
purpose of Act 2938, It is not an
el'ror f cr 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
sufficient. The bank ha\'ing failed
to j'endel' all accounting, thus im-
pedi ng the redemption of the prop-
erty, it cannot n:lw alleged lhnt no
N!demption could be made after th"
of the period of l'edemll-
ti on, I n order t hat the p!aintiIrs
may be 5ubl'ogllted in place of the
purchaser of the prope,'ty, the offer
to pay must include ollly what
said pUl'chasel' has paid but alsv
the amount fixed in the ordel' of
elCccution inl'luding interest, ex-
Jl'Cnses of the exel'ution. sal.:>, and
custody of the l)l'operty. Jud!,"lllent
modi fied, 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, I mperial, Diaz, Lau-
tel , Concepc:ion, IJJ" c:oncul'ring, )
Briefed by J UVENA[. K GUERnERO,
MORTGAGES, - ESSNTIAJ. E[.E-
mOM AN-
TICHRESIS,-IACt!1"io Leg(1.;1fJi And Ju-
Ii/In Sulcedo, P/ainti//s.A"pellatdS,
1'S. Dnmaso Celestial, Defew1a7lt-
Apr)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 fore-
closul'e of the mOl'tgag.:>s executed
undel' the fol!owing contracts: (1)
';C-1" riE'nominated "Con-
tract of Anti chl'esis", '''That during
the existence of this Contraet, the
Party of the Second Part (L, Legas-
pi and J. Salcedo) 01' theil'
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) Ex-
hibit "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
f ail s t(l pay the amount of this
mortgage, thi s 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 pro-
duction nf the sixty salt beds, ad_
"ance the expenses of the pal'tners
and the expenses o( the impl'ove-
ments ; find the Party of the First
Part. shall turn over the admini stra-
tion o( the sixty salt beds mOItgaged
riuring the term stipul ated." (c)
"The production of the sixty s al t
352 PHI LIPPINE LAW JOURNAL
beds shall be dividd equally between
the partners and the Palty of the
Second Part sfter deducting the ex-
penses 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 fore-
going COlltl'acts but claimed that the
$ahi a re contracts of antichresis and
not of mOltgage, and filed a counter-
claim to the effect thl\t the plain-
tiffs should render an accounting of
the production of the salt beds and
apply the one half of the proceeds
belonging to th e defendant t o the
payment of the debt. The principal
question, therefore, is whether the
aoove contracts al'e contract s of
mOItgage or of antichresis. fiel d:
The aoov", contracts pl'ovide that the
creditors shall have the possession
and administration of the property
in question and that after deducting
the expenses of production and ad-
ministration thereof, one half of the
proceeds shall be f or their use and
benefit. It is not stipulated that the
net ploceed shall be first applied to
the payment of the intenst, if thel'e
is any, and t.he surpl us to the pay
ment of the principal of the credit,
The said contracts, therefore, do not
fall under the provision of Article
1881 of the Civil Code, defining
a contract of !lnticht'csis. Al-
though as a general rule in a COll-
tract of mortgage, the debtor retains
the possession of the propcrty mort-
gagcd and pay the creditor a stipu-
lated inter(st of so much pel" cen-
tum for the use of the money loaned,
nevertheless., the tl'ansfer of posse"
sion qf t he property mortgaged to
the cr( di tor does not challg-e the na-
tUl'e of the contract because the
question of is not an C!J-
!lenti al element of the contract of
mortgage (Article 1857 Civil Code).
Neflhn 1$ 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 sti pu.
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-Pm-
SONS L IABLE TO THE SPECIF1C T AJt.-
Benito Ga?'l!ia" t:fI,
Collector of hLt/JI""lIal Rel'olllc, de-
fenMnt -appelll:ttl.t, R. G, No.
NOlJembc)' 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 con-
tends that the lower I!'OUl"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) i n hold ing that the owner
of the distillery and not the plllin-
tiff, 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 made a
claim for the specific tax in t.he crim-
ina l ease and that said true: was not
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
cl aim for the tax was made, The
cr iminal actioll involved a violation
of section 2727 of the Ad-
ministl'ative Code and was bl'ought
by t he Poople of the Philippines,
The tux is rccovel'able by the Col-
lector in an acti on independf nt of
the Cl;minal case alld the fact there-
fore t hat no mention was made in
the criminal case of the tax did not
bar the Govern men t from J'{cOver-
Lng 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 pn-
alty imposed by article 25 of the
Revised Penal Code and the penalty
is eompl etely distinet from t he tax.
(3) The statement ef the lewer
ceurt that, as the specific tax is real.
ly p!lid by the eonsumer, the plain-
liff 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, Accord-
ing to nticle 1479 ef the Rcvised
Administrative Code. the specific: lax
shall be paid, net immedi ately be-
fore the sale, but inlmt rli ately be_
fore the removal of t he 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 em-
pl oyee, s hould pay the specific tax.
The a forecited article 1479 states
that t he s peeific tax lI hall be paid by
the manufacturer, producer, owner,
Or 1)er.!I'OJl, having 01 the
article, It is a faet that the alcohel
in question was found in the flOSSes-
sian of the plaintiff and there is no
,
IlJlegation that he Temoved it Ilt the
instance of his employer, Al'ticle
1479, in erder to. preclude disllutes
and to facilitate the determination
of who should pay tht'- tax, has pro-
videntially provided that the tax
should be paid by the manufacturel',
preducer, ewner or person having
pessession of the arti ele. Jlldgm(l'1I.t
'rfl V('rlfe rl. (Per Concepcion, J; Avall_
eeila, C. J., Villa-Real, Abad Santos,
Imperial Diu and Laurel, JJ., con-
cUl'fing" Bl'ie/ed by RAMON C,
AQuiso.
ELECTI ON (;(JOE - EI.EC'l'ION I N-
Sf'EC'I'ORS,-Genmimo Santio.go, Peti-
tioner 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 re-
s 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
political 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 organiza-
tion of seceding Detn.orr(lio.8 to which
the President of the Municipal Board
granted the third in specter in viola-
tion of article 72 of Commonwealth
Act No. 367 which prehibits the
granting of inspectors ef elect ion
"to any branch or fraction whieh
has !!cceded from its rnpeetive party
or f rom" party resultinll! from their
f usiell." Respondent Manuel de 18.
364
PHILlPrl"NE LAW JOURNAL
Fuente averred that the third elec-
tIOn inlij>eCto" was granted not to the
Partido DCflwcratu., but to the AlitHl-
za lJemocl'atica which is an uJlioll ce
of Radical, F1'ente Populur, and lJe-
mocrata. tJ.1'UCS,. that the Partido
Sociulillfu does not have auy cantli-
tiul<:! 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 contend-
ing 0pp05ition pal'ties is entitled to
thi s 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 elec-
tion presmt only one candidate fOI'
ench office, the othel' inSJJedor shall
belong to the party of the opposing
candidate ," The foregoing con-
cedes 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 impend-
ina- election, It 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 pe-
titioner in his l'eply, Thl' petition.
therefore, fails to establish hi s legal
right tQ political representati on on
Ihe. boards of inspectors, Peti tion
denied, (Per Laurel, J.; Avsn(: t iia,
C. J " Villa-Real. J., Santos, Impe-
rial. Diu. and COIICllpcion, JJ" con-
nU'ring,) by J OSE C, CAS-
mo.
M OnTCAGF.-- H oMESTEAD P ATST-
En'E(;T
co Saba8, IJiQinlif/-(l1J/Jctlunl, '\18,
F' rnllci8t:" r. II r In flo et al.. Dc.
J""la1lf-oppelfees, G. R, No, .UBO!l.
Nm:embcr If>,
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-Gener ul on Septembl:!l' 14
1026, The said contl'act o[
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 defen-
dants and sought to obtain an
tion upon the parcel of lund describ-
ed in the deed o[ mOI'tgag('. The
Lower COUI't Jellied the motion to
obtain execuUoll UpOIi said land,
F'l'om this ruling, the plaintiff 11.11_
Ileals, Held: The principal question
to be decided in thi@ appeal, is
whether or not the lowel' court elTed
in declaring the mOl'tgllgll constitu-
ted in favor of the olaintiH-appel-
lant Francisco Sabas, void ab ilulio.
The putinent pl'oviaions of law in-
volved arc found in sections 116 lind
122 of Act 2B74. According: UJ these
legal provisions, lands acquired by
gratuitious title 01' by
cannot be lllortgagoo, encumhcl'ed
or alienated from the date of the
approval of the appliratiQ/l and
during the !i\'e (6) ycars following-
the date of the issuance or the title
01' concession, nor answer for the
payment of any obligation contracted
prior to the ttrminatioll of said pe-
riod, except ill fn\'ol' of the Gov-
ernment 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
WII S 'mortgaged is void ab
IW having been eonstituted withhl
the five yt!ars following the issuance
of i-he titl e of homestead coneession.
The fact that the conlract of mort-
gage 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' coul d it give
legal effect to said mortgage, in sul'h
a way a s to burden said la nd, fo r
tile renson t hat if it wuld produce
such an efft!ct, it would subject the
land to the pnymcnt of an obliga
tion cont l'acted pr ior to the termina_
tion of th e five ( 5) years referred
to, which is not permitted by Seeti on
ll 6 of Act No. 2874, as amended by
Act No. 3517. (Per Villa-Real J, ;
Avancei'la , C, J., Abad Santos, I m-
perial, Di M.: alld Laule!. J, J" eon-
euning:, 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 l 8latuls, Dij/tJl!d ..
tt7tt8; Tcodo'1' o R. De/Mld-
Q7tt-Appellunf., G. R. No, 4.4!!6f), No-
't'C'llIbe, 2, 1.9.!?8.-The defendant
spouses Marci ana Gui dote 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 enforce the payment
of a promissory note issued by the
spouses in hi s favor as payment for
certain materials for building con-
struction. The sa id also
owe{] the plaintiff-appC'llce P69,735
plus interest. This credi t is
guaranteed by four mortgages
inscribed in the offiCe of the
Registry of and annotatid
on t he back of the Certifi cates of
1'itle of the pl'opel'\..ies long beiHC
the debt in fnvor of appellant
was incurrcd. Defendant-appellant
daims that by virtue of articl e 1022
of the Civil Code his credit is pre-
ferred over thc credits oi the pili in-
t iff-appel lee. The l!lwer court de-
clared the credit of the plaintiff-ap-
pellee as preferred. Defendant ap
pealed tQ this court. Helct: 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
preference to credits secured by
mortgages which 3rc I'ccol'dul in the
R(!gistry of PIOPHty. 'l'he claim of
:'lIJpellant thut the credit whieh arOSe
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-
81l C'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
of tbe Civil Code. Said Arti-
cle is not applicable to the pl'estnt.
case. Affirmed, (Per Diaz, J. ,
Avancei'la, C. J ., Vi!la-Real, Santos,
I mperial, Concepcion, and Laurel,
JJ., concurring.) Briejed by Josv
C. CASTRO.
PLEAIHNGS Al'iD PaACTICS-St;ce:..O
"MOTI ON F Oa REOONSlOrnATWN A:-1D
NEW TRIAL MUST SE BASEO ON DJF-
FEREI'T GROUND TI) SUS?EN"D RUN-
NINC 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.ly 14, 1935, t he petitioner Te-
3(j(j
PHILl Pl"'INE LAW JOURNAL
notice of a condemnatory
:sentence rendered by the 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 con-
trtlry to law and the weighL of evid.
f nee. Notice of the Ol'der denying
his motion for reconsideration was
r eceived by him on February 6. He
thereto and moved for a
new tt'ia) on the ground as
thnt of the motion for "econsidel'lI-
tion, which motion was denied again
on III 011 February 21
he filed his exception thereto and
notice of intention to appeal, and on
March 2 he his bill of ex-
ceptions. He 1101.1' seeks the r evoca-
tioll of the ol'der of the Cou,t of Ap-
Ilcnls dismissing hi ll appeal. Held:
From January 1<1. when petitioner
notice of the adverse judg-
ment, to Jalluary 23, when he filed
his motion for nconsideration_
which is equivalcnt t o a motion for
new trial (Pascuu v. Ocampo, fi9
Phil. 50; Blouse v. Moreno and Gal'.
cia, 33 O. G_ 153: v. Sy Quia,
34 Phil. 1299; Rodriguc:/: v. Revira.
35 O. G. (9) days had
elapsed, leaving 21 days to prrsent
lIaid motion, The! presentatiun of
1I11ch motion for new trial suspends
t he! 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 \'. Legas-
pi, 39 Phil. 89, lind cases
therl'in; San Miguel Brewery v. Le-
garda. 48 Phil. 538; Agora v. Zan.
dreta. 56 Phil. 57) aud CllStS ther!'-
in ciled.) 1'he. of the
5(!cond motion for new trial on Feb-
run.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
the first motion within which
he could exC(pt thereto and file no-
tice of intention to appeal; nor the
IU days within which he could pre-
sent. his bill of exception8 if he had
not utilized the illlid 5 for the
PUI'iJQS<!S indicated. So that, if Ute
,econd motion for new trial wal
null and of no efect because not
based on oth<'1' grOuods establis}nd
in Sec. 145, Code of Civil Pl'ocedure
the ()rder denyillg the s90me was
wise null ant! of no effect. In the
of Aquino v. Tongco, 34 O. G.
1706, this Court held 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 pre-
l entation of another such motion on
identical grounds a s the Ilriwioul
one docs not pro<iuc(' the same ef-
fect. Therefore, since the petitioner's
cxception and noUce of intentjOll to
ullpeal on 21 and BlJI of
ElCc(>ptions un )l;lreh 2 are late, his
petition is with costs against
h 'm. Judgment affirmed. ( Per Vi-
lin-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.
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( lS. Flortmlino du JOSf., ,1l-
f!'ltd'lII/-(llJTifJI/Q"r., G. R. No. MII,29,
OdnIJ(r U, lYSS.-The. apJlellant-:\ fl-
W'III 'l from a sentt'ncing
him to pay within thirt) days the
value of two promi SlInry notes con-
tracted in 1922 payable as soon as
flOSliibJe. His s pecial defenses are
R ECE NT DECISIONS 357
that thc complaint is ambiguous for
to specify when the debt was
cont l'acted a nd whclI demalldable
and that , gTanti ng that the appellee
has a caUl;e o{ action, it has PI'e-
scribed, The elTOl'S assigned re-
,"ol ved a round the a]lpli cabilit) of
Art. 1128. Ciyil Code, the appeUalit
contending t hat Art, 1 I 13 Civil Coda
should be a pplied so that t he notes
were demandable since theil' execu
tion and tha t even supposing that
Art, 1128 should gover n the action
to have the term fixed the sa me has
prescribed according to Sec, 43 (1 ),
Code of Civil Procedure, Held: The
notes should be governed by Art,
J 128, because according to their
t er ms the uppellce grants the np-
pe\la nt t i me within which t o pny,
Si nce t he notes do not til!; the term,
t he court is the one to deter mi ne it
( Elci zegui v, Manila La wn Tennis
Club, 2 Phil. 325; Barretto v, City
of Manila, 7 Phil. 430; FJol'ia no v.
Delgado, 11 Phil. 157; Lavy Her-
manos V, Pate rno, 18 Phi!. 357,)
The action t o have the term deter-
mined has prescribrd according to
Sec. 43 (1 ), Code of Civil Procedure,
The prescriptive period is t en yea rs,
which period has d apsed f l'om the
ti me not es were contracted up to the
fili ng of t he action on Jqne 1. 1934.
The acti on to be excl'cised u nder
Art. 11 28 is distinct fJ'om that to
recover the value of the notes a nd
,li ke othor civil actions is subject to
the rules of prescripti on,- Judgment
r eversed i n de.fendants fa\'or with-
out special pronouncement as to the
amount of the costs, ( Per I mperi al,
J ,; Avanceiia, C. J " Villa-Rcal, Abad
Diaz, Laurel, Concepcion.
JJ , concurring.) Briefed vv FELIX
V, MAKASIAR.
pl ai'll.l ijj-uPl1ellu')l.t 1'8, Simeon Perez,
et ai., d(JjemrolltlJ-appe/lc68, G, R.
No, 4/.778, NOU6711bIJT 8, 191i"8.-'l'he
province bmught e.xploptiation pl'a-
ccedings against the defendants in
the lower court, Findi ll g the expro-
pria tion propel', the lower court
sentenced the pro,"i nce to pay t he
\'nlue of the respective properties of
the defendants and, in addition
thereto, the cost of removing and re-
constructing said properties ill a n-
oiher 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
reconst ruction, Held: The !\I nda-
mental rule, in t he matter of expro-
priation. is that the owner of the
property expropriated is entitled to
a just compensa tion, By just com-
pensation is mEa nt a f ai r and full
equivalent for t he loss sustai ned from
t he act of ex!)ropl iation. Anything
beyond that is more and anything
short of t hat is less than compen!58-
tion, Mallila Rail road Co. vs: Ve-
lasquez, 32 Phil. 286. The owners
are entitled ollly to recover the value
of their respective properti rs e.x-
propdatcd, Judgment modified,
Briefed by AIlELAROO SUR!!)''}.
CmMINAI, LAW -
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, t he fi rst Us an accomplice
and t he other two as principals, for
EXPROPRI ATION-JUST Ca MPENSA- the murder of one, Guillermo Sala-
TJON.- Tlte Province of T (l.IJ(l. bo.,. zar. The facts show t hat Cirilo a nd
:;58 PHILIPPINE LAW JOURNAL
Rulo SanBon assaulted the defend
antappellant Vicente Ancheta, com
munder of the eonstabuhu'y in the
municlpltl disnict., whose engsb'e'
ment wit h Bibi:lIll1 Samson had been
broken, During 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, eunsIA-
bu lary soldier.>, Del Rosario dc-
manded o[ Salazar the sun'enda of
Ancheta'S pistol bUl Salazar denied
hav ing it. As del Rosorio proceeded
to scorch his person, Sal uz:\I' stepl)ed
back, ort w a pistol out of the left
lK>Cket of his trousers and fll'cd at
del Rosario, shot wall however
pal'ried by the defendantuppellant
Benito G:l.l;pi, a private, who was
near by. Salaza r again bllek
and was about to fh-e again at del
Rosario when Gaspi shot. and killed
Sulatar. The dffense claimed that
the Samson brothlrs. Sibi anu, and
Salazar conspired to a!sault 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 Sa-
b.utr but mainly to a\'enge the as-
sault committed against their su-
perior officer by the brothl'rl<, Jleld:
A conspiracy to commit u
must be established by Jlosith'e evi
dence , lind no lIueh evidence hnving
be!.' n fMlublishcd, the thl;'ory of the
defense cannot be accepted, The
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 soldien, Thnt Gaspi
shot SalataI' in defense of del Ro
so rio's life is establi shed by II pre.
ponderance of ",vidence and he is
therefore ('xempt 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 and de-
fendants 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 JUVENAL K, GUERRERO,
CIVIL Pn()CEIJVI!E-MOTfON FOR R&-
('()-"SIIlF.l!ATION IN T i l E J USTICE TilE
Pu.-I..C COuRT-En'EC1's TUEREQF,_
Dflmetl'1'O fl, E-nCIiNlal"io'l, PIillUf!-
.4/Jpdl.ee " . ToHuin. U'Mon, Df/leYld.
aJU.A ppel/'IIIt, G. R . \'0. 44928. NOli.
.!/, 1938.-On Octob( r 9, 193{), judg-
ment was rendl'red by Il Justice of
the Peace Court for the pillintiif, a
COpy of whi ch was reech'ed by the
attol'ney for the defendant on Octo-
ber 11, 1935, On October 14 of the
same yea.r, the defendant filed a mO-
lion fol' reconsideration on the
ground ' that same is manifestl y
against the In\\' 111111 proofs adCluced
during the hear ing: This motion
was denied and attorney for defend-
ant was notified thereof on October
1935. On October 29. 1935. he
filt-d his eXeel)tion Dnd notice of ap-
peal. The Justice of the Peaee for-
wurded the 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!' de-
volution o[ the rccol'ds of the case
to the of the Pent'e for (xe-
cution of the decision rendered by
the lntter. on the ground that the
dedsion had become final and eXe-
cutory because the notice of appe .!
"RECENT DECI SI ONS 359
wss not filed jo due time. The COUIt
of First Instance granted the mo-
tiOll, The. now appeals,
I Slme: 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<le-
t ion 7G of the Code of Civil P roce_
dure? Held: 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<:onsi d{'l'ati on 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 Pro-
CEdure). 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" Avanccii a C, J"
Villa_Real, I mperial, Dinl., J .J., con-
euning. Abad Santos and Concep-
tion J.J. took 110 part.). B"ie/cd b!l
1\h.:I.QUl ADES 1\1. VmATA, JR,
CODE OF C IVIL PnOCEDunF'.-ALTER-
NATI VE Yount!,
Plaint i//-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 ob-
ligati on 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 appel-
lant, 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 car, with the Luwn Surety Co,
as co-surety, both obliging them-
selves to deli ver the car to
appell ant if the court so orders or
pay its value with costs and ally
other amOullt to which plaintifi
maybe entitled. Pursuant to a judg-
ment 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, appel-
I:mt now appeal s to t'ecover the sum
of P454,88, the amount remaining
from the total cl aim 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 Civi l 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 judg-
meut either requiring defendant
to dclive!' the I'est 01' pay pl;l.intiff
its vulua plus damages if'such chli-
VCl'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'
tioll of the debt in SOme other mali-
neI', 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 PHI LI PPINE LAW J OURNAL
CIVIL PROCEDURE-OROER Ac_
CJ UNTING IX JUDG:lIENT FOR UNFAIR
ITS NATURE.-Prophy-
lactic 8r1/8k Company alia R Oil.
J086 O. Vel'a, U8 Juclye 01 the Court
of F int I nstance vi Ma nila, Peti-
t1'oners, tiS. The COlOt oj Appeats,
The Justices thereof alld Hideo Aki_
ta. Trudil lg us Marubi8hi i'ok{),
respondentll. G. R. No. 46254, Nov.
23, J 938.-This is a petition for a
writ of certiorllri to review a judg-
ment of the Court of Appeals. In a
civil cnse in the court of First In_
stance of l\Ianila, respondent Akita,
was f ound guilty of unfair competi-
ti rm b)" using in the sale hi s
merchandi se a tl'ade mark si-
milal- 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 In-
stuncc ()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 ac-
counting could a final judgment be
rendered. Akita filed a petition for
certiOl'lfri with the Court of Appeal s
contending that the court of F irst
Instance of Manila acted in excess
of itll jurisdiction in denying his mo-
ti on 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 de-
CISiOn in the pl-occeding. /BsJUe,'
Whether under section 123 of the
Code of Civil P rocedure, the judg-
mfnt 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 con-
trolling. 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 the judg-
ment 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 the judgment; that
an appeal lies from the renditi on 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 COUl't is affirmed it would
not the least work an injustice to
any of the legal rights of N. E.
Heacock Company. On the othel'
hand, if for any teason t.hi s court
should reverse the judgment of the
lower court the 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
all equities between the parties IS
final and appealable , although it re-
serves II settlement of accounts be-
twee n the palties in the futuIe. Pe.-
tition dismissed. (Per Laurel, J.:
Avancefia C. J., ViJla_Real, Ab9d
Santos, Imperial , Diaz, J, J. t coocu
r
-
. C"n-pcion J took no part.)
rmr<::. "",- .,
81'kjed by itlELQUlAOES M, VIRATA,
Jr.
BU.L OF RIGHTs-EXPROPRI ATION
--Jus,. COKPENSAnON._Fort14)1!lto
l .. et 0.1.. plainti//s-appd/etB V'.
f,flmicip,,/ity 0/ Bao/ay011, Ifeft'1Id-
dtlt_dppe/lvnt. G. R. No. ,,/'M4.
N01!embej 39, 1.998.-In M:cordttnce
with the resolution of the municir
al
RECENT DEC1 S IONS 361
council , several coconut trees grow-
ing within the muniei pal road under
construction were destroyed. The
plaintiffs brought an action in t he
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 un-
constitutionnl. Brie/ed by AULAR-
them, F rom this decision, the de- 00 SUiIlOO.