and building appear in the registry to belong to the retailer, and no mortgage has been recorded on either the real or personal property. The creditor receives reliable information that the retailer has begun to dispose of his assets with intent to defraud his creditors. A few days' delay will let everything disappear, and no creditor can collect anything. The vigilant wholesale merchant employs an attorney, files suit on his claim, gives the necessary bond, and attaches all the property of the debtor. After a few weeks the creditor recovers judgment and causes the sale of the attached property on execution. But there are many persons who may now make their appearance and be ahead of him in the distribution of the money realized. The attaching creditor may never have heard of them or their claims until after the goods were attached, and there may have been no way of ascertaining the existence of such claims until the claimants gave notice to the sheriff after the levy of the attachment. The claims may have been fraudulently devised and stored away to rescue the debtor from just such an emergency. Or the claimants may have been merely lax and indifferent, waiting for someone else to 'dig up' the debtor's assets for his benefit."

But he principal fault with the objections of the critics of the said attorneyst is their failure to realize that an attachment in the Philippine Islands creates a liens on the property, free of all after-acquired liens and preferences. As will have been seen, the lien created by an attachment relates to the property itself and is not a mere right to share in the distribution of the funds belonging to the debtor in custodia legis. If an attachment so subjects the property, can it be said that the vendor is perjudiced and that he had better not procured the attachment? Certainly not. The case of Kuenzle & Streiff (Ltd.) vs. Juan Villanueva, and Ed. A. Keller & Co., 14 of Gaz. 2209, supports my contention.

The vendor procuring the attachment is first of all to be paid, unless there are previous existing liens on the property attached; I repeat liens and not merely preferences.

The creditors with preferential claims will follow in the distribution of the proceeds if any is left (Kuenzle & Streiff (Ltd.) vs. Juan Villanueva, and Ed. A. Keller, supra).

Their suggestion for an entire repeal of articles 1921 to 1929 inclusive of the Civil Code is to my mind a destruction of our legal lore; one not founded in the deficient utility of the law, but merely aimed at simplifying the glorious uncertainty of the law of liens and preferences in their minds.

The practical result of it all is not so bad as might be apprehended, from the sentiments of the aforementioned reform-seeking practicing attorneys who imagine our law of liens and preferences to be a turbid mass tumbling thru the years, carrying down foul and conflicting matter.

After carefully and studiously examining the great number of perplexing and difficult questions of the law of liens and preferences, I cannot but admire and commend the scrupulous and intelligent care and ability evinced by the Spanish legis

lators in drafting the Civil and Commercial Codes enforced in the Philippine Islands and that of subsequent legislation enacted by the present administration following American precedents. In so declaring I do not wish to be understood as championing the cause of CONSERVATISM, and uphold the continuance of the present status of the law of liens, preferences, and attachments without considering its adaptibility to modernized mercantile activities and to the needs of the situation. Far from adhering to such wretched policy, I have, in my discussion, as far as possible, attempted to point out the glaring defects of our law on the subject of liens only. I myself, having commercial proclivities would rather favor the introduction in the Philippine Islands of modern aspects of the law of liens, with a design to aid, instead of to hinder, the collection of accounts.

A comparison, therefore, of the principles enunciated regarding the present status of the law of liens in the Philippine Islands does not fall far short from the actual status of the law of liens prevailing in the United States.

THE END.

PHILIPPINE LAW JOURNAL

Published monthly, August to April inclusive, during the academic year, by the alumni and students of the College of Law, University of the Philippines.

Jorge Bocobo, Acting Dean of the College of Law.

Quintin Paredes, Professorial Lecturer on Criminal Law.

Enrique Altavas, Lecturer on Land Registration and Mortgages.

DECEMBER, NINETEEN HUNDRED AND SEVENTEEN

NOTE AND COMMENT

RAMÓN R. SAN JOSE, Senior

Editor

A NEW PAMPHLET BY JAMES A. ROBERTSON ON LAW AMONG EARLY

PHILIPPINE PEOPLES

"The Pacific Ocean in History" by H. Morse Stephen and Herbert E. Bolton, contains an article by Dr. James A. Robertson, well-known in the Philippines, on "The Social Structure of, and Ideas of Law among, Early Philippine Peoples; and a Recently Discovered Prephispanic Criminal Code of the Philippine Islands." This interesting article has now been reprinted in pamphlet form. We can forgive the spelling of "Manila" with two "l's" and the printing by the publishers which makes the last page first, and the first page last, because of the nature of the essay. Our ideas of the history and government of the Philippine peoples prior to the coming of the Spaniards are extremely scanty. Any publication, therefore, which rearranges in interesting form authorities difficult for the layman to find and which, in addition, publishes in English and Spanish a code enforced long beofre Magellan sighted the Philippines, is noteworthy. Dr. Robertson gives in his article a fair and

authentic presentation of the ideas of law and social structure of the early periods in Philippine history. He does more. For he makes available pp. 52-63, Volume, I of a manuscript written during the years 1837 and 1838 by a Spanish friar, Jose Maria Pavón. Its authencity, Dr. Robertson states, can scarcely be questioned. Father Pavon here reproduces the code of Calantiao, third chief, done in the year 1433. The code attests that even before Latin civilization had penetrated the Philippines, ideas of law which would compare favorably with the early ideas of other peoples were extant in the Philippines.-G. A. M.

RECENT CASES

(Decided by the Supreme Court of the Philippine Islands).
(BY S. R. C.)

JUDGMENT ON CIVIL ACTION FOR DIVORCE: ITS EFFECT UPON A SUBSEQUENT PROSECUTION FOR ADULTERY.—A judgment on the merits was rendered in favor of the wife in a civil action for divorce brought by the husband in the city of Manila, absolving her from the charges of adulterous relations set forth in the complaint. Subsequently, a criminal prosecution for the crime of adultery was brought against the wife in the province of Rizal. Held, That the first judgment is a bar to this subsequent prosecution for adultery, based upon the commission of the alleged adulterous acts prior to the institution of the civil action, and this without regard to the place where it is alleged that such adulterous acts were committed. The first judgment, or the judgment in the civil case for divorce, is a solemn declaration that the wife has not been guilty of adultery prior to the date of the institution of the civil action for divorce. (Per Carson, J., in U. S. v. Ortega et al., R. G. N. 12260, decided October 20, 1917.)

DOUBLE JEOPARDY.-The defendant has been acquitted from a charge of the crime of theft. Thereafter, he was charged with estafa. The basic act complained of in the first information was that of unlawfully acquiring possession of the sugar-theft. The basic act complained of in the second information was failure to deliver sugar lawfully received by the accused-estafa. While theft and estafa are both crimes against property, the essential elements of the two crimes are different. So it was held that the accused has not been placed twice in jeopardy for the same offense.So the plea of autrofois acquit should not be sustained, (Per Malcolm, J., in U. S. v. Bayona Vitog, R. G. No. 12817, decided October 25, 1917.)

CRIMINAL LAW: SELF-DEFENSE.-The ancient common law rule in homicide was denominated "retreat to the wall." This doctrine made it the duty of a person assailed to retreat as far as he can before he is justified in meeting force with force. This principle has now given way in the United States to the "stand ground when in the right" rule. Where the accused was where he had a right to be, the law does not require him to retreat when his assailant was rapidly advancing

upon him in a threatening manner with a deadly weapon. The accused is entitled to do whatever he had reasonable grounds to believe at the time was necessary to save his life, or to protect himself from bodily harm. (Per Malcolm, J., in U. S. v. Dowen, R. G. Mo. 12963, decided October 25, 1917.)

JUDICIAL NOTICE OF LAWS AND ORDINANCES BY COURTS.-The accused is charged with violation of a municipal ordinance. It is contended that a doubt arises as to whether the ordinance in question was in force at the date of its alleged violation. The counsel contended that since no affirmative proof was offered in the court below as to the date of the approval of the ordinance, the court had no evidence before it on which to base a finding that the ordinance was in force at the date of its alleged violation.

Held, That a court of a justice of the peace may, and should take judicial notice of the municipal ordinances in force in the municipality wherein it sits; and in an appeal from a judgment of a court of the justice of the peace the appellate courts may take judicial notice of municipal ordinances in force in the municipality wherein the case originated, and to that end may adopt the findings and conclusions of the court of the justice of the peace in that regard as developed by the recoids, in the absence of affirmative proof that such findings and conclusions are erroneous. Courts

of First Instance will not, ordinarily, and in the absence of express statutory authority, take judicial notice of ordinances of municipal corporations within their jurisdiction; such courts, however, may and should take judicial notice of such ordinances on appeal from a judgment of a municipal court or a court of a justice of the peace, in any case wherein the inferior court took judicial notice thereof.

REPEAL OF MUNICIPAL CODE BY THE ADMINISTRATIVE CODE: ITS EFFECT.-It is further contended that the ordinance having been enacted under authority of the Municipal Code, and that Code having been repealed by the enactment of the Administrative Code, the ordinance should be deemed to have been abrogated at the same time.

Held, That while the Administrative Code repealed the Municipal Code, it conferred upon and confirmed to all duly organized municipalities the power to enact and maintain such ordinances in substantially the same language as that found in the Municipal Code. Section 3 of the Administrative Code expressly provides that the provisions of that Code incorporating prior laws shall be deemed to be made in continuation thereof, and to be in the nature of amendments thereto, without prejudice to any right already accrued. (Per Carson, J., in U. S. v. Blanco, R. G. No. 12435, decided November 9, 1917.)

CRIMINAL LAW; HOMICIDE; INDEPENDENT ACTS.-The deceased was wounded by a pistol fired by V. It was a mortal wound. Immediately after receiving the pistol shot, the deceased was wounded with a bolo by L. This was likewise a mortal wound. The death was due to these wounds. Either of these wounds is sufficient to cause the death of the victim.