Asencio vs. Gutierrez, G.R. No. 100, September 9, 1901

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 100 September 9, 1901

AGUSTIN ASENCIO, plaintiff-appellant,
vs.
FRANCISCO GUTIERREZ, defendant-appellee.

Jose Robles Lahesa, for appellant.
Vicente Miranda, for appellee.

WILLARD, J.:

It has been plainly proven that at the time this declarative action was initiated the defendant resided at Manila, P.I. He left Iloilo with his family November 19, 1898, and his family has never since returned to Iloilo. The defendant was at this latter place from February 17, 1899, until March 16 of the same year with the object, as alleged by him, of recovering the possession of his printing machine, which the American authorities refused to deliver. With this exception the defendant and family have resided permanently at Manila since they left Iloilo in November, 1898.

On April 1, 1899, a registration certificate was issued to him as a resident citizen of Manila. On January 1, 1900, his name was registered in the books of the Internal-Revenue Collector as a resident of Manila. On April 11, 1900 he presented a declaration to the Spanish consulate under article 9 of the treaty of Paris, in which he also stated that he was a resident of Manila. The plaintiff alleges in his complaint that the defendant is a resident of Manila; he also affirms this in his petition of November 20, 1900. it appears from the foregoing facts that it was the deliberate intention of the defendant to change his place of residence.

No law has been cited, in force in these Islands, which requires citizens to announce their intention of changing their residence in a more public manner.

It is expressly alleged in the complaint that the original lease expired on the 1st of April, 1899. The right alleged by the plaintiff in his complaint is based exclusively upon two facts. The first is, that after the aforesaid lease had expired and after all rent due thereunder had been paid according to the terms thereof, the printing machine, the property of the defendant, still remained in the basement of the house, which basement was only a part of the house described in the original contract of lease. The plaintiff in his complaint admits that the upper floor of the house was in use by him at the time he presented the complaint. The second is that a letter was written to the defendant May 17, 1899, advising him that the rent of the premises would be 150 pesos until the time the printing machine was removed from the building. The defendant did not answer this letter, but receipted for it at the post-office, as the letter was registered.

This action has been instituted with the object of collecting rent at the rate of 150 pesos per month from May 1, 1899, to the same month in 1900. The only question arising is this; Should this case be decided at Iloilo, where it originated, or at Manila? If there was a contract in this case it related only to the ground floor of the building and arises from the presence of the printing machine therein and from the letter of the plaintiff dated May 17, 1899. It was not stipulated in this letter where the payment should be made. In accordance with article 1574 of the Civil Code, article 1171 of the same Code is applicable, and the place of residence of the debtor is the place of payment. This personal action is, as affirmed by the plaintiff himself in his complaint, entirely distinct from and independent of an action of forcible entry and detainer. The rules which regulate the jurisdiction in such actions are not applicable to this case, which is governed by article 46, rule 1, of the Law of Civil Procedure now in force.

The order appealed from the Court of First Instance of Iloilo is in accordance with law and must be affirmed with the costs against the appellant. It is so ordered.

Arellano, C.J., Torres, Cooper, Mapa, and Ladd, JJ., concur.

Eleizegui vs. Arevalo, G.R. No. 18, September 12, 1901

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 18 September 12, 1901

GAUDENCIO ELEIZEGUI, plaintiff-appellee,
vs.
JOSEFA AREVALO, defendant-appellant.

Emilio Gaudier, for appellant.
Alfredo Chicote, for appellee.

WILLARD, J.:

This case was initiated and carried on in reliance on the provisions of article 395 of the Mortgage Law. The article referred to applies only to cases in which the proprietor does not have a written title of ownership. The applicant holds a written title to the property described in his petition. Therefore he can not invoke the article referred to for the purpose of registering his ownership.

Article 437 of the General Regulations (Reglamento General) can not be invoked by the petitioner, since said article applies only to the registration of possession. It appears in the present case, moreover, that the written document evidencing the title of the petitioner was submitted to the court below attached to the petition.

The judgment appealed from should therefore be reversed. It is so ordered.

Arellano, C.J., Torres, Cooper, Mapa, and Ladd, JJ., concur.

US vs. Sweet, G.R. No. 448, September 20, 1901

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 448 September 20, 1901

THE UNITED STATES, complainant-appellee,
vs.
PHILIP K. SWEET, defendant-appellant.

Theofilus B. Steele, for appellant.
Office of the Solicitor-General Araneta, for appellee.

LADD, J.:

The offense charged in the complaint is punishable under the Penal Code now in force by arresto mayor and a fine of from 325 to 3,250 pesetas. (Art. 418.) By Act No. 136 of the United States Philippine Commission, section 56 (6), Courts of First Instance are given original jurisdiction "in all criminal cases in which a penalty of more than six months' imprisonment or a fine exceeding one hundred dollars may be imposed." The offense was therefore cognizable by the court below unless the fact that the appellant was at the time of its alleged commission an employee of the United States military authorities in the Philippine Islands, and the further fact that the person upon whom it is alleged to have been committed was a prisoner of war in the custody of such authorities, are sufficient to deprive it of jurisdiction. We must assume that both these facts are true, as found, either upon sufficient evidence or upon the admissions of the prosecuting attorney, by the court below.

Setting aside the claim that the appellant was "acting in the line of duty" at the time the alleged offense was committed, which is not supported by the findings or by any evidence which appears in the record, the contention that the court was without jurisdiction, as we understand it, is reducible to two propositions: First, that an assault committed by a soldier or military employee upon a prisoner of war is not an offense under the Penal Code; and second, that if it is an offense under the Code, nevertheless the military character sustained by the person charged with the offense at the time of its commission exempts him from the ordinary jurisdiction of the civil tribunals.

As to the first proposition, it is true, as pointed out by counsel, that an assault of the character charged in the complaint committed in time of war by a military person upon a prisoner of war is punishable as an offense under the Spanish Code of Military Justice (art. 232), and it is also true that under the provisions of the same Code (arts. 4, 5) the military tribunals have, with certain exceptions which it is not material to state, exclusive cognizance of all offenses, whether of a purely military nature or otherwise, committed by military persons. But the fact that the acts charged in the complaint would be punishable as an offense under the Spanish military legislation does not render them any less an offense under the article of the Penal Code above cited. There is nothing in the language of that article to indicate that it does not apply to all persons within the territorial jurisdiction of the law. Under articles 4 and 5 of the Code of Military Justice above cited a military person could not be brought to trial before a civil tribunal for an assault upon a prisoner of war, but by the commission of that offense he incurred a criminal responsibility for which he was amenable only to the military jurisdiction. That criminal responsibility, however, arose from an infraction of the general penal laws, although the same acts, viewed in another aspect, might also, if committed in time of war, constitute an infraction of the military code. We are unable to see how these provisions of the Spanish Military Code, no longer in force here and which indeed never had any application to the Army of the United States, can in any possible view have the effect claimed for them by counsel for the appellant.

The second question is, Does the fact that the alleged offense was committed by an employee of the United States military authorities deprive the court of jurisdiction? We have been cited to no provision in the legislation of Congress, and to none in the local legislation, which has the effect of limiting, as respects employees of the United States military establishment, the general jurisdiction conferred upon the Courts of First Instance by Act No. 136 of the United States Philippine Commission above cited, and we are not aware of the existence of any such provision. The case is therefore open to the application of the general principle that the jurisdiction of the civil tribunals is unaffected by the military or other special character of the person brought before them for trial, a principle firmly established in the law of England and America and which must, we think, prevail under any system of jurisprudence unless controlled by express legislation to the contrary. (United States vs. Clark, 31 Fed. Rep., 710.) The appellant's claim that the acts alleged to constitute the offense were performed by him in the execution of the orders of his military superiors may, if true, be available by way of defense upon the merits in the trial in the court below, but can not under this principle affect the right of that court to take jurisdiction of the case.

Whether under a similar state of facts to that which appears in this case a court of one of the United States would have jurisdiction to try the offender against the State laws (see In re Fair, 100 Fed. Rep., 149), it is not necessary to consider. The present is not a case where the courts of one government are attempting to exercise jurisdiction over the military agents or employees of another and distinct government, because the court asserting jurisdiction here derives its existence and powers from the same Government under the authority of which the acts alleged to constitute the offense are claimed to have been performed.

It may be proper to add that there is no actual conflict between the two jurisdictions in the present case nor any claim of jurisdiction on the part of the military tribunals. On the contrary it appears from the findings of the court below that the complaint was entered by order of the commanding general of the Division of the Philippines, a fact not important, perhaps, as regards the technical question of jurisdiction, but which relieves the case from any practical embarrassment which might result from a claim on the part of the military tribunals to exclusive cognizance of the offense.

The order of the court below is affirmed with costs to the appellant.

Arellano, C.J., Torres, Willard, and Mapa, JJ., concur.

Separate Opinions

COOPER, J., concurring:

I concur in the result of the decision of the court, but am not prepared to assent to all that is said in the opinion. An offense charged against a military officer, acting under the order of his superior, unless the illegality of the order is so clearly shown on its face that a man of ordinary sense and understanding would know when he heard it read or given that the order was illegal, and when the alleged criminal act was done within the scope of his authority as such officer, in good faith and without malice, and where the offense is against the military law — that is, such law as relates to the discipline and efficiency of the Army, or rules and orders promulgated by the Secretary of War to aid military officers in the proper enforcement of the custody of prisoners — is not within the jurisdiction of the courts of the Civil Government. (In re Fair, 100 Fed. Rep., 149.) The civil courts, however, may examine the evidence for the purpose of determining whether the act alleged to be criminal was done in the performance of duty under the circumstances above indicated, but should cease to exercise jurisdiction upon such facts appearing.

Robles vs. Sanz, G.R. No. 43,September 23, 1901

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 43 September 23, 1901

SERVILIO ROBLES, plaintiff-appellant,
vs.
JUAN SANZ, defendant-appellee.

Fernando de la Cantera, for appellant.
Francisco Ortigas, for appellee.

LADD, J.:

This is an incident respecting nullity of proceedings, and comes up on appeal from an auto of the Court of First Instance of Intramuros (Manila sustaining the validity of the proceedings drawn into question. The appellant, Robles, was the plaintiff below in a declarative action of greater import brought to recover for services rendered by him to the appellee, Sanz, the defendant below, as an employee in the latter's store in Manila from January 9, 1886, to March 12, 1895. One question at issue between the parties was as to whether any payments had ever been made the plaintiff by the defendant on account of said services, the plaintiff alleging in his demand that no such payments had been made and the defendant in his answer alleging the contrary, and specifying the dates and amounts of certain payments, which he stated appeared upon his books of account.

Among other proofs proposed by counsel for the plaintiff was the following: "Documentary: I designate as documentary proof the commercial books of the defendant, Don Juan Sanz, where he says the payments of salary received by my principal appear.

The defendant's book were accordingly examined by the court, due notice to the parties being first given, although neither the plaintiff nor his counsel appears to have been present; and the result of the examination was embodied in a statement specifying certain entries of payments to the plaintiff during the years in question found in the book of accounts-current, and adding that they appeared to have been transferred from the corresponding entries in the daybook and ledger, that the books had been properly stamped, and that the portions where the entries appeared bore no evidence of alterations or erasures.

The appellant's contention is that as a matter of fact the entries mentioned in this statement were made after the books in which they appeared had been closed, and that the omission to note in the statement this circumstance, which was apparent from the books themselves, rendered the taking of the evidence invalid. In the court below the appellant moved that evidence be taken in the incident to enable him to establish this fact as to the character of the entries, but the court refused the application. He now asks in a petition addressed to this court that the same evidence be taken at second instance.

If the omission to state that the entries appeared to have been made after the books had been closed, such being the fact, would constitute a fatal objection to the legality of the proceedings in the taking of the evidence, the appellant should have been permitted to show the fact in the court below, and not having been permitted to do so there, his petition that the evidence be taken at second instance might properly be granted. But we do not think that the court below was bound to examine the books or to state anything that appeared therein, or any circumstance in connection with them, further than as called upon to do so by the plaintiff in his designation of the evidence which he desired taken. If the plaintiff desired the court to ascertain and state whether the entries appeared to have been made after the books had been closed, he should have so requested at the proper time. Not having done so, he can not object that the failure of the court to examine and report upon the condition of the books in this particular has the effect of invalidating the proceeding, especially as it is at least doubtful whether in the absence of such request the court would have been justified in making such examination. (Art. 47 of the Code of Commerce.)

Assuming, therefore, that the fact which the appellant proposes to prove were established it would have no bearing upon the question involved in this incident. It would undoubtedly tend to discredit the entries as evidence in the main action; but the sole question before us in this incident is a purely procedural one, the determination of which depends in no manner upon the character or value of the evidence of the entries, either considered in itself as it appears in the statement drawn up by the court below or in connection with any qualifying circumstance which might be disclosed upon a further examination of the books. The petition for the taking of evidence at second instance must, therefore, be denied.

These considerations also dispose of the appeal itself, no defect in the proceedings in the taking of the evidence being pointed out other than that which the appellant claims results from the omission of the court to note the character of the entries, as having been made after the books were closed. As already indicated, we are of opinion that this omission does not invalidate the proceeding.

The petition for the taking of evidence at second instance is denied, and the judgment is affirmed with costs to the appellant.

Arellano, C.J., Torres, Cooper, Willard, and Mapa, JJ., concur.

Marcelo Aguas, G.R. No. 12, August 8, 1901

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 12 August 8, 1901

In the matter of the proceedings against MARCELINO AGUAS for contempt of the COURT OF FIRST INSTANCE OF PAMPANGA.

Claudio Gabriel, for appellant.
Office of the Solicitor-General Araneta, representing the respondents.

SMITH, J.:

It appears from the record in this matter that on the 29th of August, 1900, during the progress of a trial then being held before the Court of First Instance at Bacolor, in the Province of Pampanga, the court had occasion to caution Angel Alberto, a witness in the case, not to look at the attorney for the defendant but to fix his attention on the judge who was at the time examining him. It seems that the witness did not give heed to this warning, and the judge thereupon arose from his seat and approaching the witness, seized him by the shoulders, and using the expression, "Lingon ang mucha" ("Look at me"), either shook him, as insisted by the attorney for the defendant, or only turned him about, as claimed by the judge and others. Whether the witness was shaken or only turned about, at all events "seizing him," brought the defendant's attorney to his feet, who, protesting against the action of the judge as coercive of the witness, demanded that a record be made of the occurrence and that the further hearing of the case be postponed. Two days afterward the clerk entered in his record as recital of the incident substantially as above, and also a statement that on other and prior occasions the attorney, Marcelino Aguas, had been wanting in respect to the court by making use of "improper phrases," and by interrupting opposing counsel in their examination of witnesses. The court on this record adjudged the attorney to be in contempt of court and suspended him from the practice of his profession for a period of twenty days. The attorney appealed, but his appeal having been disallowed by the lower court, he asked to be heard in justification, which was granted.

On the hearing in justification evidence was taken touching the contempt alleged to have been committed by Señor Aguas, from which the court found that during the trial of the case of Roberto Toledo vs. Valeriano Balatbat, the judge, having had occasion to seize the witness, Alberto Angel, by the shoulders to turn him around, Señor Aguas, attorney for defendant, had risen from his seat in a "menacing attitude," and "with a voice and body trembling"protested that the action of the judge was coercive of the witness; and further that his attention being called to the fact that he was wanting in respect to the court and that he should sit down, he waived his right to go on with the trial and moved a postponement of the hearing. On this finding the court again adjudged the attorney guilty of contempt of court, and suspended him from the practice of his profession for a period of twenty days. From this judgment Señor Aguas appealed to this court.

In our opinion the action of the judge in seizing the witness, Alberto Angel, by the shoulder and turning him about was unwarranted and an interference with that freedom from unlawful personal violence to which every witness is entitled while giving testimony in a court of justice. Against such conduct the appellant had the right to protest and to demand were respectfully made and with due regard for the dignity of the court. The only question, therefore in this case is, Was the appellant respectful and regardful of the court's dignity in presenting his objection and asking that it be recorded in the proceedings? The witnesses say and the judge finds that "his attitude was menacing" (bastante amenazadora) in the moment of making his protest, but beyond that there is nothing in the record which even tends to show that he was disrespectful to the court or unmindful of its dignity. In our opinion both testimony and finding state a mere conclusion which, in the absence of the facts from which it was deduced, is wholly valueless to support a judgment of contempt. The statement that the attorney's attitude was "menacing" tended no more to competently establish the alleged offense of contempt than if the witnesses had testified and the court had found that his conduct was "contemptuous or lacking in respect." The specific act from which it was inferred that his attitude was menacing should have been testified to by the witnesses and found by the court, and failing that, the record does not show concrete facts sufficient to justify the conclusion that he was disrespectful to the court or offensive to its dignity.

The judgment appealed from must therefore be reversed, and it is so ordered, with costs de oficio.

Arellano, C.J., Cooper, Willard, Torres, and Ladd, JJ., concur.
Mapa, J., did not sit in this case.

Jackson vs. Blum, G.R. No. 26, August 24, 1901

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 26 August 24, 1901

WALTER JACKSON, plaintiff-appellee,
vs.
PAUL BLUM, ET AL., defendants-appellants.

Charles C. Cohn, for appellants.
WM. J. Rohde, for appellee.

COOPER, J.:

This is an appeal from the judgment of the Court of First Instance of Intramuros (Manila) in an action for an accounting instituted by Walter Jackson against Paul Blum, H. Blum, W.A. Whaley, and L.M. Johnson. The matter involved is a leasehold interest in the business property known as the "Alhambra," situated on the Escolta in Manila, together with the furniture and fixtures and other appurtenances.

In August, 1898, Señor Roca took a lease from the owner of the Alhambra and a short time afterwards transferred the same to Evans, Jackson, and Williams. Williams conveyed his interest to Evans and Jackson and the establishment was conducted by Evans & Jackson. The firm of Evans & Jackson, being in need of money, on the 21st day of October, 1898, made an arrangement by which the interest of Jackson in the property was transferred to Evans. In this transfer it was agreed that when the establishment was free from all incumbrances there should be a settlement between Jackson and Evans, and that Jackson should remain the owner of his interest in the property. On the same day Evans, being then the apparent sole owner of the establishment, obtained a loan from Paul Blum in the sum of 32,443 pesos, and in carrying out the transaction a partnership was formed between Evans and Whaley, and a conveyance, absolute in form, was then made by Evans & Whaley to Paul Blum, transferring to him the establishment, and a contract was also entered into between Evans and Whaley on the one part and Paul Blum on the other part, in which agreement it was recited that Evans & Whaley had borrowed from Paul Blum the said sum of 32,443 pesos and that they had executed to Blum the conveyance of the establishment mentioned. It was stipulated that Whaley was to be the managing partner of the firm of Evans & Whaley, Evans having the right to enter the premises at any time and to inspect the books of account. Each was to receive out of the business for his personal expenses the sum of 300 pesos per month. It was also agreed by Evans & Whaley to purchase from the American Commercial Company, of which Paul Blum was then a member, all supplies which they needed for the establishment. The loan made by Paul Blum to Evans & Whaley was to be paid off from the net proceeds of each day's business, which were to be deposited with American Commercial Company to the credit of the Alhambra account, or to be paid from any other funds, with interest at the rate of 8 per cent per annum, and Evans & Whaley had the right to pay the whole or any part of the debt at any time to Blum and from funds other than the profits of the Alhambra. Whaley was mentioned in the instrument as representative of Blum. It does not appear, however, from the instrument that Blum was to be considered a partner or in any way interested in the business. Blum perhaps required that Whaley should become the managing partner of the firm of Evans & Whaley for the protection of his interests in advancing the money to them. No term for the duration of the partnership between Evans and Whaley was fixed, nor can any particular term be inferred from the nature of the business to be carried on by them. On the 13th day of November, 1899, a partnership settlement of the firm of Evans & Jackson was made between Evans and Jackson and the balance of $5,000 was found to be due from Evans to Jackson, and an agreement was then entered into between Evans and Jackson in which it was recited that the sum of 20,000 pesos was the estimated amount due on the mortgage of the property to Blum and that the equity of redemption was of the value of 40,000 pesos, which belonged to each of the partners in equal parts. In payment of the balance of 5,000 pesos due Jackson on the settlement of account, and in consideration of the sum of 5,000 pesos, Evans transferred all of his interest in the Alhambra property to Jackson. On the following day Evans applied to Blum to ascertain the amount due him on the mortgage, offering to pay the same. Blum refused to recognize Jackson as having any rights in the establishment. Afterwards Blum demanded of Evans & Whaley the payment of the sum of 28,000 pesos as due upon the mortgage, and Whaley, being then in exclusive possession of the property, turned over the same to Blum.

The judgment of the Court of First Instance was in favor of the plaintiff and an accounting was decreed. The contention of the defendants is: First, that by the sale from Evans and Whaley to Blum the property passed absolutely to Blum; second, that Evans could not substitute Jackson as debtor to Blum without the consent of the latter; third, that the partnership between Evans and Whaley was based upon confidence, and that Jackson could not be substituted as a member of the firm; fourth, that the juridical relation does not exist between the plaintiff Jackson and the defendants.

We shall briefly state the law applicable to the facts in the case: A partnership may be terminated by the will or renunciation of one of the partners, provided no term has been fixed for its duration or when a term is not fixed by the nature of the business. (Arts. 1700 and 1705 of the Civil Code.)

Personal or real property which each partner possesses at the time of the execution of the contract continues to be his private property, the usufruct only passing to the partnership. (Art. 1675 of the Civil Code.)

Each co-owner has the absolute ownership of his part and of the fruits and benefits belonging thereto, and he therefore may sell, assign, or mortgage the same or substitute another in its enjoyment unless personal rights are involved. The effect of the sale or mortgage, however, so far as affects and co-owners, shall be limited to that portion which may be allotted to him in the distribution at the termination of the community. (Art. 399 of the Civil Code.)

No co-owner is obliged to remain in the community. (Art. 400 of the Civil Code.)

The judgment of the Court of First Instance is affirmed with costs on appeal taxed to the appellant.

Arellano, C.J., Torres, Smith, Willard, and Ladd, JJ., concur.
Mapa, J., did not sit in this case.

Cordoba vs. Warner Barnes Co., G.R. No. 17,August 26, 1901

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 17 August 26, 1901

DON LUCIANO CORDOBA, plaintiff-appellant,
vs.
WARNER, BARNES & CO., defendants-appellees.

Alberto Barretto, for appellant.
Josiah Mode Vale, for appellees.

SMITH, J.:

This action was commenced in the Court of First Instance, Intramuros (Manila), by the plaintiff Cordoba, to recover from the defendants, Warner, Barnes, & Co., the sum of $479.57, Mexican currency, the value of certain merchandise alleged to have been short delivered by them as common carriers of the plaintiff, with 50 per cent of such value added as liquidated damages and also the costs of suit. In the court below judgment went for the defendants and plaintiff appealed.

The record discloses without contradiction that some time prior to June, 1900, the firms of Cahn, Nickelsberg & Co. and Trieste & Co. delivered at San Francisco, California, to the Pacific Mail Steamship Company on board its steamship Rio de Janeiro, for shipment to Manila via Hongkong, twenty cases of shoes and five cases of hats, respectively, freight prepaid as per "accountable receipt" or "way-bill." The goods were consigned to plaintiff, Manila, and properly marked with his name. On arrival at Hongkong they were delivered by the Pacific Mail to the steamer Diamante in good condition, for transshipment to Manila Bay, at which place the vessel arrived June 11, 1900, under consignment to the defendants. Ten days later the five cases of hats and six of the twenty cases of shoes were discharged into the lighters of Carman & Co., agents of the plaintiff, empowered to receive and transport them from the ship's side to the custom-house.

The court finds as a fact and the managing agent of the defendants positively testifies that before receiving the consignment of plaintiff, Carman & Co. called the attention of the defendants to the condition of the cases, and then and there protested their receipt on account of their "bad condition." Nevertheless, the carrier, without verifying the contents of the packages and without demanding an examination of them on board, voluntarily delivered them to the lighter men who, under customs supervision and control, brought them to the custom-house, where they were deposited in the bodega set apart for broken packages.

On the 25th and 27th of June, 1900, and while the goods were still in the custom-house, the plaintiff wrote to the defendants, notifying them that the five cases of hats and the six cases of shoes bore evidence of having been tampered with, and asking that they name a representative to be present at the customs examination of the cases in order to note any shortage which might be disclosed thereby. Warner, Barnes & Co. named Señor Abren as their representative for the purpose, and he, conjointly with the customs officials, examined the cases in bad condition and reported to his principals that the packages were short 119 hats and 9 pairs of shoes. The merchandise found in the cases was received by the plaintiff from the custom-house some time subsequent to the 29th of June, 1900, on which date the duties were paid. Notwithstanding the report of their representative, the defendants declined to settle the claim presented for the missing goods, first, because the protested packages were not opened and examined before they left the ship's side as required by the bill of lading, and second, because the claim of loss was not presented within twenty-four hours after delivery of the goods to the lighter for transportation to the custom-house. Both contentions of defendants were sustained by the court below in the suit which was subsequently commenced against them, and plaintiff appealed.

In our opinion neither one nor the other of the defenses set up by the consignees of the vessel was well founded. The bill of lading which provides that "in the event of any packages being refused on account of condition, they are, if in bad order, to be examined on board the steamer and contents certified to, when steamer's responsibility will cease," gave to the defendants the undoubted right to retain on board and to examine all refused packages. This right, however, being exclusively for their own protection, they could waive it and they did waive it by discharging the goods, notwithstanding the protest, and accepting a receipt which specified on its face that the cases were in "bad condition" when delivered for transportation to the custom-house. It lay wholly with the carrier to say whether the goods should or should not be discharged from the vessel without examination, and having voluntarily elected to so discharge them the respondents can not now be permitted to urge that the failure to examine the cases on board was a bar to the claim of appellant. If the goods had been examined on board the failure of the consignees to give the certificate of shortage prescribed by the bill of lading would have constituted no defense to the action, and on the same principle their failure to retain and examine the packages after protest made can not be held to prejudice the rights of the plaintiff.

Respondents claimed on the hearing of this appeal that the duplicate receipt offered in evidence by the appellants could not be accepted as evidence, for the reason that on its face it appeared to have been written in different inks and by different persons. If the duplicate receipt was fictitious or manufactured for the occasion it could have been shown in a moment by the production of the original delivered to the carrier when the goods were discharged, and the failure to do so by defendants must be considered against them and as fatal to their contention.

Defendants' second defense — that plaintiff's suit must fail because his claim was not presented to the carrier or consignees of the vessel within twenty-four hours after receipt of the goods — can not be sustained for the reason that plaintiff's claim was presented not later than the 27th of June, 1900, and he did not receive his consignment within the meaning of article 366 of the Commercial Code before the 29th of the same month. The discharge of the merchandise into the lighters of Carman & Co. for delivery at the custom-house under customs supervision and control was not "the receipt of the merchandise" contemplated by article 366. The packages were then in the hands of the Government, and their owner could exercise no dominion whatever over them until the duties were paid or secured to be paid. The time prescribed by article 366 within which claims must be presented does not begin to run until the consignee has received such possession of the merchandise that he may exercise over it the ordinary control pertinent to ownership. For these reasons the judgment of the court below must be reversed without special finding of costs, and it is so ordered.

Arellano, C.J., Torres, Cooper, Willard, Ladd, and Mapa, JJ., concur.

John Calloway, G.R. No. 456, August 28, 1901

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 456 August 28, 1901

In the matter of the application of JOHN W. CALLOWAY for a writ of habeas corpus.

Eber C. Smith, for petitioner.
Colonel Grosbeck, United States Army, for respondent.

WILLARD, J.:

No judge of this Archipelago has at present jurisdiction to issue the writ of habeas corpus unless such jurisdiction has been conferred upon him by some legislative act. The only law now in force which confers such jurisdiction is General Orders, No. 58, amended by General Orders, No. 70, which latter order expressly denies this Supreme Court and other courts in the Philippine Islands the right to set at liberty any prisoner arrested in pursuance of military orders. Article 17 of "An act providing for the organization of court in the Philippine Islands" reads as follows:

The Supreme Court shall have original jurisdiction to issue writs of mandamus, certiorari, prohibition, habeas corpus, and quo warranto in the case and in the manner prescribed in the Code of Civil Procedure, and to hear and determine the controversies thus brought before it, and in other cases provided by law.

The Code referred to in this article is not as yet in force, and therefore can not be applied to this case. It would appear from the answer to the writ that the petitioner has been arrested by virtue of military orders, such statement not having been objected to by the counsel for the petitioner. Therefore this court has no power to order the discharge of the petitioner.

The fact that the petitioner had been arrested in compliance with military orders was not set forth in the petition for the issuance of the said writ, and the court deemed it its duty to issue same in first instance.

Wherefore the writ issued August 23, 1901, is hereby repealed.

Arellano, C.J., Torres, Cooper, Mapa, and Ladd, JJ., concur.