liberalities of young governments in converting as soon as possible their public domain into private property, have been wise or not. Theoretically speaking, they seem to be wise, and theoretically speaking also, the advanced legislative mesaures of New Zealand on this subject seem to me excellent. But in practice, New Zealand has had to modify her radical land laws, by making them more conservative. For governments do not live by theory alone but also by reality.

In their infancy, governments have need of embarking upon innumerable improvements in order to give society the greatest measure of civilization possible. For this purpose the greatest possible development of their natural resources is necessary. In order to promote agricultural development, there are only two ways: Either to develop the soil with local efforts alone, or to develop it with local efforts with the help of outside enterprise. The first means is long, the second is rapid.

And almost all modern governments have adopted the second method, that is rapid development. And to this end, they have been constrained to facilitate the disposition of their public lands because capital and labor both national and foreign are thereby attracted to agriculture, as I have said. And by this means, new countries believe they can find in the process of the sale of lands rapid income with which to remedy their poverty, as in this period lands have scarcely any value. Finally, by this same means, for State reasons, it is also believed that terrible agrarian crises can be forestalled by making everybody a land owner. Bearing these theories and considerations in mind, it is easy to understand the spirit and purposes of the present public land law (Act No. 926 which spirit is in itself liberal, and it must be admitted that it is based on a sane public land policy, which is to encourage small land-holding, the basis of the social stability of the country. For this purpose, the gratuitous grant to individuals is limited to sixteen hectares. This gratuitous and limited grant is the homestead, which can be applied for only by citizens of the United States or of the Philippines who have no other lands of more than sixteen hectares, and who must cultivate it for five consecutive years and build their home thereon.

The Act, however, recognizes the need of attracting large capital to agriculture and provides for two forms of grant for valuable consideration: sale and lease. But even in sale the law makes a distinction between an individual buyer and a corporation, giving the former only 16 hectares, and the latter 1024 hectares. In the lease, which may last up to fifty years, this distinction is ignored, perhaps because ownership is retained by the State.

The law again recognizes mere occupancy of public land, and for the public good again provides for two forms of composition: the free patent and unperfected titles. The former is always gratuitous, and refers to lands possessed since the year 1894 at the latest, and not exceeding sixteen hectares, and is applied for till the year 1923; and the unperfected titles refer to lands possessed since the year 1898 at the latest, and may be for valuable consideration, if in the judgment of the court, the applicant should pay a certain sum as a price for the land. The difference between

the one and the other is that free patent has for its purpose rather the giving of title to the small farmer and therefore the procedure is more summary because everything is administrative and gratuitous; while the unperfected titles refer to land whose area is more than sixteen hectares, and the whole procedure is judicial and in accordance with the land registration law. The spirit which underlies the present legislation is to organize and establish small land-holding, sixteen hectares being considered as the minimum type. Wise and far-sighted as this measure is, there is lacking, however, another which should supplement it; that is to preserve and maintain this small ownership in the hands of the small proprietor.

THE LAW OF LIENS IN THE PHILIPPINE ISLANDS AS COMPARED WITH THAT PREVAILING

IN THE UNITED STATES

By FELIPE YSMAEL, B. A., LL. B.

(Awarded the Lawyers Cooperative Publishing Co. Prize of United States Supreme Court Digest, Extra Annotated, 7 volumes, for the best thesis presented for graduation from the College of Law, University of the Philippines.)

(Continued from November number)

LIEN OF MATERIAL-MEN

MATERIALS

For necessary repairs or supplies furnished to a vessel in a foreign port, a lien is given by the general maritime law, following the civil law, and may be enforced in admiralty.

The General Smith, 4 Wheaton 438, 4 L. Ed. 609;

The St. Jago de Cuba, 9 Wheaton 409;

The Virgin, 6 Pet. 538;

The Laura, 18 How. 22;

The Grapheshot, 9 Wall. 129;

The Lulu, 10 Wall. 192;

The Kalorama, 10 Wall. 204.

For repairs or supplies in the home port of the vessel, no lien exists, or can be enforced in admiralty, under the general law, independently of local statute.

The General Smith, supra;
The St. Jago de Cuba, supra;

The Lottawanna, 21 Wall. 558;

The Edith, 94 U. S. 518.

In the Philippines Islands, in awarding the lien no distinction is made as to whether the repairs were made as to home port or in a foreign country; in either case the lien exists.

PREREQUISITES TO THE EXISTENCE OF THe Lien.

Loans (refactionary credits) contracted by the captain during his last voyage for the pupose of repairing the vessel shall have preference over the marine mortgage if they embrace the following circumstances:

1. That the repairs to the vessel should have been made only in the cases provided in rule 6 of article 610 of the Code of Commerce and with the resolution established in the said rule.

2. That in making the repairs and in contracting the refactionary credits requires thereof the provisions of article 583 of the said Code were observed.

3. That the temporary memorandum required in the said article 583 was made.

The temporary memorandum shall have all its effects with regard to the preference during the time the vessel does not return to the port of departure, all the provisions contained in article 33 of the Marine Mortgage Law in its third and fourth paragraphs being applicable.

Refactionary credits not included in this article shall be regulated by the rules established in articles 20, 21, 22, 23 and 36 of this law.

The refactionary credit contracted by the captain during the last voyage shall neither have the preference we are discussing except only when the repairs to the vessel are made in urgent cases, while on the voyages, the repairs being absolutely necessary to continue the trip to the end and should it arrive at a port where the vessel has à consignee the captain shall act in accordance with the desire of the latter. (Ayllon, El Comercio y la Hipoteca Naval, 201).

In order that the refactionary credit may be entered in the registry with all the effects provided by article 18, it shall be necessary that the creditor file in the registry of vessels the written contract that, in any form, he may have executed with the debtor by which he advanced the necessary amount of money, at one time or at several times, for the construction or repair of the vessel subjected to the lien.

This memorandum shall have all the effects of a mortgage (Art. 20).

It shall not be necessary that the titles, by virtue of which the registration of a refactionary credit is requested, should exactly determine the amount of money or goods of which the credit consists, it being sufficient that they contain sufficient data to enable its liquidation at the termination of the work done. (Art. 21).

Should the vessel which is the object of the lien be subject to a marine mortgage previously registered, the memorandum of the later lien cannot be made unless it be by a unanimous agreement contained in a public instrument or in a policy of exchange brokers, or of commercial brokers, or of licensed ship-broking interpreters between the holder of the former lien and the person or persons in whose favor the mortgage is constituted on account of the loan and the value of the vessel before beginning the repairs, or in the absence of an agreement, by virtue of a judicial decree issued in a proceeding for the purpose of ascertaining the said value, after a summary summoning and hearing of the creditors holding previous mortgages.

The values which in either of the two cases may be fixed before commencing the repairs to the vessel to be the object of the refactionary credit must be recorded in the memorandum of the refactionary credit itself (Art. 22).

The creditor holding a marine mortgage on the vessel subjected to a refactionary credit, the value of which appears in the manner prescribed articles, shall preserve his right of preference with regard to the holder of the refactionary credit but only to an amount equal that in which the vessel itself was estimated. (Art .23).

BOTTOMRY BOND DEFINED.

BOTTOMRY BOND

A bottomry bond is a maritime contract by which a ship is hypothecated in security for money borrowed for the purposes of her voyage, under the condition, that if the ship arrive at the port of her destination the borrower, personally, as well as the ship, shall be liable for the repayment of the loan, together with such premium thereon as may have been agreed on, but that, if the ship be lost, the lender shall have no claim against the borrower, either for the sum advanced or the premium. (The Dora, 34 Fed. 343; The Launberga, 154 Fed. 959).

LIEN OF LENDER.

Under the American Law, whoever lends money upon a bottomry obligation for the ordinary transactions of her voyage has a lien upon the vessel which outranks all lien holders save the mariners for their wages. (The Dora (D. C.) 34 Fed. 343) The same rule obtains in the Philippine Islands. Thus Revilla in his Commentaries on the Marine Mortgage Law of Spain August 31, 1893, says:

The vessels shall be subject to the payment of

those debts which the law declares as preferred; and in case of a judicial sale
of the vessel for the payment of creditors, the following are considered pre-
ferred;
* the amounts borrowed on bottomry. These privileges,
it seems, should only give the creditor preference in the proceeds of the sale
with regard to the other credits in the order of their respective degrees, and
not the preference of attachment and sale of the thing on which they hold a
lien in order to collect their credit for this is a right which, on principle, is
inherent only to mortgage credits. And, nevertheless, the preferred creditor
who holds a lien on the vessel not only has a preferred right inherent to the
character or cause of his credit, but also has the right to collect the same by
attachment and sale of the vessel, that is, although the creditor may have
transferred its ownership to a third party, until the credit should not have
been extinguished or cancelled by any of the means provided by law."
The same author continues:

The marine preferrences are of a purely legal creation*
they constitute in a word true tacit legal mortgages, arising from the desire
of protecting especial interests related to navigation. The assertion that
marine preferences are tacit legal mortgages is uncontrovertible as regards
the greater number of these contracts, for art. 580 of our Code requires the.
entry in the Registry of the credits specified in numbers 7, 8 and 9 only.

"By the right of persecution (persecución) we understand the power given the mortgage creditor to collect the amount of his credit by having the mortgaged vessel attached and sold without regard to the changes of ownership of the vessel, that is, even though the vessel may be in the hands of third