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CANGCO v. MANILA RAILROAD CO.

FACTS:
1. Cangco, herein plaintiff, was an employee of the defendant in
this case, Manila Railroad Company.
2. Upon the occasion in question, plaintiff was returning home by
train from his daily labors. As the train drew up to the station,
plaintiff arose from his seat. As the train slowed down,
plaintiff stepped off, but one or both of his feet came in contact
with a sack of watermelons. As a result, his feet slipped from
under him and he fell violently on the platform.
3. The accident occurred between 7-8 o’clock on a dark night as
the railroad station was lighted dimly, objects on the platform
were difficult to discern especially to a person emerging from a
lighted car.
4. Plaintiff sued the defendant company for damages.
5. The latter interposed the defense that the direct and proximate
cause of the injury suffered by the plaintiff was his own
contributory negligence in failing to wait until the train had
come to a complete stop before alighting.
ISSUE: Should Manila Railroad be held liable?
RULING:
Yes. The Supreme Court reversed the decision of the lower
court holding that it was important to note that the foundation of the
legal liability of the defendant was the contract of carriage, and that the
obligation to respond for the damage which plaintiff has suffered
arises, if at all, from the breach of that contract by reason of the failure
of defendant to exercise due care in its performance. That was to say,
its liability was direct and immediate, differing essentially, in legal
viewpoint from that presumptive responsibility for the negligence of
its servants, imposed by article 1903 of the Civil Code, which can be
rebutted by proof of the exercise of due care in their selection and
supervision. Article 1903 of the Civil Code is not applicable to
obligations arising ex contractu, but only to extra-contractual
obligations, or to use the technical form of expression, that article
relates only to culpa aquiliana and not to culpa contractual.

Manresa (vol. 8, p. 67) in his commentaries upon articles 1103
and 1104 of the Civil Code, clearly points out this distinction, which
was also recognized by this Court in its decision in the case of Rakes
vs. Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In commenting
upon article 1093 Manresa clearly points out the difference between
"culpa, substantive and independent, which of itself constitutes the
source of an obligation between persons not formerly connected by
any legal tie" and culpa considered as an accident in the performance
of an obligation already existing . . . ."
On the railroad company’s defense of contributory negligence
on the part of Cangco, the Court held that the plaintiff was ignorant of
the fact that the obstruction which was caused by the sacks of melds
piled on the platform existed. Moreover, the place was dark or dimly
lighted. Thus, there was failure on the part of the defendant to afford
to its passengers facilities for safe egress from its trains.

While the cars were being moved and when it reached the depressed portion of the track. There were no side guards installed on the sides of the cars but the rails were secured by ropes. His disobedient to this order does not bar his recovery of damages though. 3. The tracks where the cars move were also weakened by a previous typhoon. which on account of its origin arises in an obligation between two persons not formerly bound by any other obligation. One day. Atlantic assailed the decision of the lower court alleging that they specifically ordered their workers to be walking only before or after the cars and not on the side of the cars because the cars have no side guards to protect them in case the rails would slip. In this case. and which increases the liability arising from the already existing obligation (contractual or culpa contractual). Culpa as an incident in the performance of an obligation which cannot be presumed to exist without the other. each car carrying the opposite ends of the rails. Further.500). The cars were pulled by rope from the front and other workers are pushing the cars from behind. Rakes sued Atlantic Gulf and he won. 5. Rakes contributory negligence can be inferred from the fact that he was on the side of the cars when in fact there were orders from the company barring workers from standing near the side of the cars.000 pesos for damages ($2.500 pesos. the ropes gave in and the rails slipped thereby crushing his leg and causing it to be amputated. ISSUE: Whether or not Atlantic is civilly liable. It was alleged that Atlantic’s foreman was notified of said damage in the tracks but the same were left unrepaired. Rakes as per the evidence could not have known of the damage in the track as it was another employee who swore he notified the foreman about said damage. his lack of caution in continuing to work is not of a gross nature as to constitute negligence on his part. . HELD: Yes. Rakes was a black man working as a laborer for Atlantic Gulf in the early 1900s. FACTS: 1. they were working in the company’s yard and they were transporting heavy rails using two cars (karitons?).RAKES v. 2. 9. may be also considered as a real source of an independent obligation (extra-contractual or culpa aquiliana). 8. the SC also elucidated the two kinds of culpa which are: Culpa as substantive and independent. that Rakes himself was negligent for having known of the depression on the track yet he continued to work. he was awarded 5. On the other hand though. 6. 4. Atlantic also alleged that Rakes should be suing the foreman as it was him who neglected to have the tracks repaired. 7. ATLANTIC GULF AND PACIFIC CO. the Supreme Court instead reduced the award of damages from 5. and while Rakes was beside one of the cars.000 pesos to 2.

7. He pleaded not guilty and while admitting that the collision was caused by faulty brakes of his taxicab. 5. or of his employees. FORTUITOUS EVENT. Hence this petition. While in that stop position.10. At about 9:15 o'clock in the morning of January 4. sought to exculpate himself with the explanation that this fault could not and should not be traced to him. 4. Tugade was then charged with Reckless Imprudence Resulting in Damage to Property. the Holden car was bumped from behind by Blue Car Taxi. ISSUE: Whether or not the faulty brakes of the taxicab constitutes caso fortuito? HELD: No. the repairs of which cost P778. 8. Rodolfo [Rayandayan] was driving a Holden Kingswood car (the [Holden] car). going northwards. Rizal. TORTS AND DAMAGES. CA affirmed TC’s decision in toto. 1972. After trial. Rayandayan was going to turn left on Makati Avenue but he stopped to wait for the left turn signal and because a jeep in front of him was also at a stop. it does not. . and assigned for use of its manager. bearing plate No. 52-19V (L-Rizal '71). At the intersection of Ayala Avenue and Makati Avenue. Tugade appealed the decision reiterating that `the malfunctioning of the brakes at the time of accident was due to a mechanical defect which even the exercise of due negligence of a good father of a family cannot have prevented. An essential element of a caso fortuito is the occurrence of some extraordinary circumstance independent of the will of the obligor. bearing Plate No. MISHAP CAUSED BY DEFECTIVE BRAKES NOT FORTUITOUS IN CHARACTER. owned by the Sta.10 6. on Ayala Avenue in Makati. CA RATIO: FACTS 1. 55-71R (TX-QC '71) and driven by Inocencio Tugade causing damage to the Holden car. 3. the lower court held Tugade guilty beyond reasonable doubt of Reckless Imprudence resulting in damage to property and sentenced him to a fine of 1k and subsidiary imprisonment in case of insolvency and actual damages of P778.TUGADE v. 2. Ines Mining Corp.

the accident was caused either by defects in the automobile or else through the negligence of its driver. it is necessary that a. 4. 2. b. ISSUE: Should the Abad spouse be held liable for the loss of the pendant? HELD: No. the injury to the creditor. 4. In the process. right thigh. FONTANAR FACTS: 1. Maria G. not to exceed safe and legal speed limits. or aggravation of. and on his back. Herein plaintiff was a passenger of the public utility jeepney on course from Danao City to Cebu City. While walking home. 5. The obligor must be free of participation in. alleged that the tire blow out was beyond their control. c. 7. CA FACTS: 1. Abad received from Guillermo Austria a pendant with diamonds to be sold on a commission basis or to be returned on demand. Plaintiff filed a case for breach of contract with damages before the City Court of Cebu City. As far as the record shows. The accident was caused either through the negligence of the driver or because of mechanical defects in the tire. When the jeepney reached Mandaue City. in their answer. and to know the correct measures to take when a tire blows up thus insuring the safety of passengers at all tines. 3.AUSTRIA v. The jeepney was driven by driven by defendant Berfol Camoro and registered under the franchise of Clemente Fontanar. Plaintiff suffered a lacerated wound on his right palm aside from the injuries he suffered on his left arm. Defendants. This is not a caso fortuito which would call for an acquittal of the driver. The Court ruled that the exempting provision of Article 1174 of the Civil Code is applicable in the case. 5. 2. It is not suggested that the accident in question was due to an act of God or to adverse road conditions which could not have been foreseen. 6. 3.This element is lacking in the present case. A complaint of the incident was filed in the Court of First Instance against certain persons. the cause of the unforeseen and unexpected occurrence was not independent of the human will. ISSUE: Whether or not the tire blow-out is a fortuitous event? HELD: No. the right rear tire exploded causing the vehicle to turn turtle. In the case at bar. the plaintiff who was sitting at the front seat was thrown out of the vehicle. Abad failed to return the jewelry or pay for its value despite demands made by Austria. Common carriers should teach drivers not to overload their vehicles. The occurrence must render it impossible for the debtor to fulfill the obligation in a normal manner. The event must be independent of the human will or of the obligor’s will. Abad spouses set up the defense that the alleged robbery had extinguished their obligation. .JUNTILLA v. Austria brought an action against the Abad spouses for the recovery of the pendant or of its value and damages. 6. It is a recognized jurisdiction that to constitute a caso fortuito that would exempt a person from responsibility. the purse containing the jewelry and cash was snatched by two men. taking into account that the tire that exploded was newly bought and was only slightly used at the time it blew up.

Filipina Pioneer Lines failed to overcome that presumption o fault or negligence that arises in cases of death or injuries to passengers. Unfortunately. The defendant pleaded force majeure but the Trial Court ruled in favor of the plaintiff. Fearing that they might hit Chocolate island due to zero visibility. VASQUEZ VS. the vessel struck a reef near Malapascua Island. 7. 6. they still proceeded with their voyage relying only on the forecast that the typhoon would weaken upon crossing the island of Samar. they proceeded with their voyage. 3. 4. it is not necessary that the persons responsible for the event should be found or punished. On appeal to the Court of Appeals. To constitute caso fortuito to exempt a person from liability it necessary that the event must be independent from human will. it reversed the decision of the lower stating that the incident was a force majeure and absolved the defendants from liability. Its officers were aware of the upcoming typhoon Klaring that is already building up somewhere in Mindanao. while passing through the island the weather suddenly changed and heavy rains fell. The parents of the passengers who were lost due to that incident filed an action against Filipinas Pioneer Lines for damages. COURT OF APPEALS FACTS: 1. When they reached the island of Romblon. It was held that the act of Maria Abad in walking home alone carrying the jewelry was not negligent for at that time the incidence of crimes was not high.To avail of the exemption granted. 2. There being no typhoon signals on their route. Despite knowledge of the fact that there was a typhoon. the captain decided not to seek shelter since the weather was still good. MV Pioneer Cebu left the port of Manila and bounded for Cebu. the obligor must be free from any participation or aggravation to the injury of the creditor. ISSUE: Whether of not Filipinas Pioneer Lines is liable for damages and presumed to be at fault for the death of its passenger? HELD: The Supreme Court held the Filipinas Pioneer Lines failed to observe that extraordinary diligence required of them by law for the safety of the passengers transported by them with due regard for all necessary circumstance and unnecessarily exposed the vessel to tragic mishap. . It is sufficient that to unforeseeable event which is the robbery took place without concurrent fault or negligence on the part of the obligor which can be proven by preponderant evidence. 5. the captain ordered to reverse course the vessel so that they could weather out the typhoon by facing the strong winds and waves. The defense of caso fortuito is untenable. it sustained a leak and eventually sunk. They continued their journey until the vessel reached the island of Tanguingui. the occurrence must render it impossible for the debtor to fulfill his obligation in a normal manner.

the municipality of Tarlac transferred their rights in the property to the Province of Tarlac.PARKS V. FACTS: In 1910. Consequently. The condition to erect a school within six months is not a condition precedent. Concepcion Cirer and James Hill donated parcels of land to the municipality of Tarlac on the condition that it be used absolutely and exclusively for the erection of a central school and public parks. the compliance of which cannot be effected except when the right is deemed acquired. If no special period is prescribed. the work to commence within six months. The action to revoke the donation has prescribed. ISSUE: Whether or not the donation was coupled with a condition precedent? W/N the action to revoke has prescribed? HELD: No. 1 year if by reason of ingratitude. Parks filed a complaint seeking the annulment of the donation and asking that he be declared the absolute owner of the property. Meanwhile nothing is acquired and there is only an expectancy of a right. when a condition is imposed. Later on the. The prescriptive periods are: 5 years for the revocation by the subsequent birth of children. twenty three years later. Cirer and Hill sold the same property to George L. PROVINCE OF TARLAC (P. 10 years. The donation was made in 1910. . Parks. for an onerous donation following the law of contracts and general rules on prescriptions. such condition cannot be a condition precedent. In the present case the condition that a public school be erected and a public park be made of the donated land could not be complied with except after giving effect to the donation. Parks allege that the conditions of the donation were not complied with. The president of the municipality of Tarlac accepted and registered the donation. The characteristic of a condition precedent is that the acquisiito of the right is not effected while said condition is mot complied with or is not deemed complied with. In 1921. the cause of action accrued in 1911. while the action to revoke was filed 1924.114) A condition which cannot be complied with except after giving effect to the donation is not a condition precedent.

Meaning. action has not yet prescribed. 15. . 1890 (for contract #1) P20 + 18 ¾ percent interest per annum from Oct. Holding: CFI affirmed. 1115). This endorsement is tantamount to an acknowledgement of her obligation & thus it would be sufficient to prevent the statute of limitation from barring the action upon the original contract. June 26. defendant & appellant [1909] (P. 1902: Tomas Osmeña presented the contracts to Rama who acknowledged her responsibility by issuing an endorsement w/c provided that if the house that she lived in is sold.Tomas OSMEÑA.00 from the Osmeña said debt will be paid in sugar in Jan/Feb 1891 at the price of sugar upon delivery in Osmeña’s warehouses + interest of half a cuartillo per month on each peso beginning on this date until debt has been paid if Rama can’t pay in full. it’s a condition that depended upon the debtor’s exclusive will & was therefore void (CC Art. March 15. vs. she will pay her indebtedness to Tomas.00 but she mentioned in the contract (contract #2) that P50. 27. – NO Ratio: If this can even be regarded as a condition. 1891 until sums were paid (only P20 was demanded despite the P70 loan because it was proven that P50 was borrowed by Peñares) Issue: WON the condition imposed by Rama in her March 15. Rama still failed to pay. 1906: Tomas filed this case w/the CFI of Cebu alleging the aforementioned incidents w/the prayer for a judgment for the amount due on said contracts. 15. said contracts became the property of Agustina Rafols.00 of said amount was loaned to Don Evaristo Peñares and that said debt will be paid in sugar on Jan. Subsequently. a balance shall be struck. Rama’s defense: general denial & prescription CFI: decided in favor of Osmeña & ordered Rama to pay: P200 + 18 ¾ percent interest per annum from Nov. plaintiff & appellee. 1892 according to the conditions of contract #1. Osmeña died and during the partition of his estate.118) Nov. 1891: Rama asked for an additional loan from Osmeña amounting to P70. Cenona RAMA. showing the amount outstanding at the end of each June w/interest & balance as may be outstanding against Rama shall be considered as capital w/c she’ll pay in sugar + interests Rama will sell all the sugar that she may harvest to Osmeña guarantee for the debt: all of Rama’s present & future property (pledge as security) and house w/tile roof & stone floor where she lives in (special security) Osmeña entitled to make claim against Rama upon the expiration of the term stated in the contract Oct. w/c contained the ff: (contract #1) that Rama received P200. 1890: Rama executed & delivered a contract to Victoriano Osmeña. one of his heirs. 1902 endorsement is valid. However. 27. Rafols then claimed her right & interest in the contracts.

was not such a violation for the contract. September 16. Hawaiian-Philippine Co. was supposed to make the payments for the delivery of molasses as shown in the documents presented by the parties.000 gallons was not a definite promise. and with costs. There was only a slight breach of contract when the payment was delayed for 20 days after which Hawaiian-Philippine Co. SFC filed a complaint for breach of contract against HawaiianPhilippine Co. and asked P70. and second. agree to sell 400. what is the measure of damages? Held: (1) Only 300. The language used with reference to the additional 100. was able to deliver 55. [47 SCRA 821 G. the right to rescind the contract of sale made with Song Fo & Co.000 gallons of molasses or 300. Hawaiian-Philippine Co.317. Supreme Court said that Song Fo & Co.Song Fo and Co.369. with legal interest from the date of the presentation of the complaint. 1923 until payment. The judgment of the trial court condemned HawaiianPhilippine Co. answered that there was a delay in the payment from Song Fo & Co. Song Heng will follow the same line of thought as that of the trial court which in unsustainable and there was no means for the . the first cause of action of Song Fo & Co. No. accepted the payment of the overdue accounts and continued with the contract. where it would deliver molasses to the latter. of a contract imprudently breached by Hawaiian-Philippine Co. Hawaiian-Philippine Co.50.R.. The delay in the payment of Song Fo & Co. 139) Facts: Hawaiian-Philippine Co.000 gallons of molasses was agreed to by Hawaiian-Philippine Co. is not entitled to recover anything under the second cause of action because the testimony of Mr. with legal interest from October 2.000 should be paid by Hawaiian-Philippine Co. The second cause of action was based on the lost profits on account of the breach of contract. waiving its right to rescind the contract. Issue: (1) Did Hawaiian-Philippine Co.000 gallons of molasses. of a contract for 300. vs.. is based on the greater expense to which it was put in being compelled to secure molasses from other sources to which Supreme Court ruled that P3.000 gallons of molasses? (2) Had Hawaiian-Philippine Co. has the right to rescind the contract due to that and claims it as a special defense. 1925] (p. (3) With regard to the third question. The Supreme Court said that Hawaiian-Philippine Co. as seen in the documents presented in court. to pay Song Fo & Co.93.? (3) On the basis first. 23769. and that Hawaiian-Philippine Co. a total of P35. doubt has risen as to when Song Fo & Co.006 gallons of molasses before the breach of contract. (2) With reference to the second question. It should be noted that the time of payment stipulated for in the contract should be treated as of the presence of the contract. got into a contract with Song Fo & Co. does not have the right to rescind the contract.

court to find out what items make up the P14. .000 of alleged lost profits.

88 and the interest upon the last annual installment. on such default before the maturity of all the notes according to their terms. So ordered. (56 Alabama. and the mortgagee may then sell the entire premises. held: "Where an irrigation company's trust deed to secure its bond was an entire contract. Street." And the District Court of Montana. . given to secure the payment of several promissory notes. the mortgage may foreclose for the entire debt. it was held: "Where a mortgage provided that. and it is declared that. Romualdez and Villa-Real. as the mortgage installments in question have matured may collect by the failure of the mortgagor to pay. Without special pronouncement as to costs." In Phipps vs. the rule of law enunciated in the foregoing cases was confirmed. 320)." The same legal doctrine was upheld in McLean vs. it was held: "Where. enunciates the following doctrine: "In case of an agreement between the parties to the effect that the entire debt or may. Ostrand. 426). Avanceña. or an installment thereof. with interest thereon. LOPEZ VITO (FULL TEXT decision only ) Corpus Juris 41. there was no inconsistency between the mortgage and the bond. 851). JJ. all bonds would become due upon a default in an installment.J. authorizes a sale of the mortgaged lands on default being made in the payment of 'the said promissory notes as they fall due.PNB V. not being divisible without impairment of their market value. Lopinsky (97 West Virginia. In this case it was said: "Default having been made in the payment of one of the notes secured by the trust deed.. by the terms of a mortgage given to secure the payment may declare the entire debt due on default in the payment of any of the notes. Johnson. and he may retain. in favor of the North Negros Sugar Co.844. but the accompanying bond contained no such provision. modified. the judgment appealed from must be as it is hereby.. and order a sale of the property to satisfy the decree. but for the appointment of a receiver to take charge of the mortgaged property and collect the rents pending the maturity of all the notes. at the election of the mortgagee. including the P2.' the mortgagor is in default so soon as he fails to pay any of the notes at maturity. a sufficient amount to pay the notes not then due. the whole of the principal sum should become due. Ashkenas (197 New York Supplement. foreclosure may be had for the entire amount upon such default. Taylor (96 Alabama. Presley's Adm'r. C. become due upon a partial default in payment of the mortgage debt. (251 Federal Reporter. or he may proceed for a present foreclosure only for the notes then due according to their tenor. the mortgagee may collect the whole debt. Bitter Root Valley Irr. Malcolm. to be performed in installments. out of the proceeds of sale. page 848. Inc. Co.. and for a foreclosure only when all the notes shall have matured. 211): "Where the condition of a mortgage. without prejudice to the mortgaged lands. but he cannot maintain a bill filed. falling due at different times. on default of payment of any installment of principal or interest for 30 days after demand. the court could enter a decree for the full amount of the mechanic's lien and of the trust lien. and to proceed to the foreclosure of the mortgage in accordance with law. and there being an accelerating clause in the trust whereby all the remaining notes became due. and on default in payment of an installment the entire balance of the principal became due. concur. in the case of First Trust & Savings Bank vs. not for a present foreclosure at all." Wherefore." In Biedka vs." In the case of Phillips vs. 457).

PRESCRIPTION. So ordered. City of Manila. like other civil actions. ACTION TO FIX PERIOD.) The action to ask the court to fix the period has already prescribed in accordance with section 43 (1) of the Code of Civil Procedure. Avanceña.GONZALES V. As the promissory notes do not fix this period. (Eleizegui v. 7 Phil. Levy Hermanos v. As the promissory notes do not fix this period. Delgado. 309. without special pronouncement as to the costs in both instances. 7 Phil. which has already elapsed from the execution of the promissory notes until the filing of the action on June 1... Laurel and Concepcion. Paterno. city of Manila. 18 Phil.. The action which should be brought in accordance with article 1128 is different from the action for the recovery of the amount of the notes. 11 Phil. C. Barretto v. 1934.. 2 Phil. it is for the court to fix the same. 416. — The two promissory notes are governed by article 1128 of the Civil Code because under the terms thereof the plaintiff intended to grant the defendant a period within which to pay his debts. PROMISSORY NOTES WITHOUT PERIOD. 154. Abad Santos. it is for the court to fix the same.. Floriano v. Levy Hermanos v. (Eleizegui v. The action brought by the plaintiff having already prescribed. 2 Phil. subject to the rules of prescription. Villa-Real. 353. Floriano v. this period of prescription is ten years. 309. JJ. 18 Phil. 154.) The action to ask the court to fix the period has already prescribed in accordance with section 43 (1) of the Code of Civil Procedure. although the effects of both are the same. the appealed decision should be reversed and the defendant absolved from the complaint. manila Lawn Tennis Club. Barretto v. being. being. 416. Paterno. Diaz. The action which should be brought in accordance with article 1128 is different from the action for the recovery of the amount of the notes.. which has already elapsed from the execution of the promissory notes until the filing of the action on June 1. concur.. This period of prescription is ten years.. 1934. subject to the rules of prescription. although the effects of both are the same. DECISION We hold that the promissory notes are governed by article 1128 because under the terms thereof the plaintiff intended to grant the defendant a period within which to pay his debts. Delgado. 353. Manila Lawn Tennis Club. .J. JOSE (FULL TEXT SYLLABUS ONLY) SYLLABUS 1. like the civil actions.. 11 Phil..

SONG FO V.. but also for all installments which. the fulfillment of which has been fixed for a certain day. and no other security having been substituted therefor.: Under these circumstances we are of opinion and so hold that Song Fo & Co. He appears to have relied upon the provisions of article 1125 of the Civil Code but to have overlooked the co-related provisions of article 1129 of the same code. 2. Arellano. Coming now to examine the contentions of the plaintiffs on their appeal. or when it disappears through an unforeseen event (vis major). These articles are as follows: 1125. 1129. concur. Johnson. it appears that he is insolvent. The debtor shall lose all right to profit by the term: 1. the plaintiffs were clearly entitled to recover judgment not only for the installments of the indebtedness due under the terms of the contract at the time when the instituted their action. So ordered. When the uncertainty consists in the arrival or nonarrival of the day.J. then the obligations is conditional and shall be controlled by the proceeding section. from the 15th day of November. unless he gives security for the debt. even when the date of arrival is unknown. 1911. a provision for the recovery of P16. we think that the trial judge erred in declining to render judgment in their favor for the total amount of the purchase price of the launch. . ORIA (FULL TEXT DECISION ONLY) CARSON. The judgment entered in the court below should be modified by substituting for so much thereof as provides for the recovery by the plaintiff of P6. JJ. are exigible only when such day arrives. By a certain day is understood one which shall necessarily arrive. after the obligation has been contracted. and thus modified.000 together with interest of November 1911. J. he acts. When by his own acts. Obligations.500 together with interest at the rate of ten per centum per annum. but for the loss of the vessel had not matured at that time.. C. The security for the payment of the purchase price of the launch itself having disappeared as a result of an unforeseen event (vis major). Trent and Araullo. Moreland. were in no wise responsible under the contract for the loss of the launch without insurance and that the contentions of the defendant in this regard furnish no defense to the action against him for the purchase agreed upon in the deed of sale. unless it is immediately substituted by a new one equally safe. 3. Torres. When. the judgment appealed from should be affirmed with the costs of this instance against the appellant. he has reduced such security after giving it. When he does not give to the creditor the security he is bound to give.