appealed order or decision. If an issue of fact has been determined by the lower court the record on appeal shall include all the evidence, oral and documentary, taken upon the issue involved.

(a) Within ten days from the date upon which the appeal is perfected the appellant shall prepare and file in the Court of First Instance the record on appeal, including therein, in chronological order, copies of the pleadings, orders, and decisions involved in the appeal, and by reference the evidence, oral and documentary, relating to the issues of fact, if any. The reference to the evidence which is to be incorporated shall specify the documentary proof by the exhibit numbers or letters by which it was identified when admitted or offered in evidence at the trial. The oral evidence to be included shall be identified by the statement of the names of the witnesses. A copy of the record so prepared by the appellant, exclusive of the evidence, shall be served upon the appellee, with a notice that at the next regular motion day of the trial court an application for the approval and certification of the record will be made to the court.

(b) Upon the submission of the motion for the approval of the record on appeal the trial judge may approve it as presented or, upon his own motion or at the instance of the appellee, may direct its amendment by the inclusion of any matters omitted which are deemed essential to the determination of the issues of law or fact involved in the appeal. If the trial judge orders the amendment of the record the appellant, within the time limited in the order, or such extension thereof as may be granted, shall redraft the record by including therein, in their proper chronologica sequence, such additional matters as the court may have directed him to incorporate therein, and shall thereupon submit the redrafted record for approval, upon notice to the appellee, in like manner as the original draft.

(c) Upon the approval of the record on appeal by the trial judge, it shall be the duty of the clerk of the trial court to verify the correctness of the copies of all pleadings, orders, and decisions included therein, and to make a certificate of their correctness. The record on appeal prepared by the appellant shall thereupon be transmitted by the clerk of the trial court to the clerk of the Supreme Court, together with the order of the trial judge, approving the record and the clerk's certificate of the correctness of the copies contained therein. The record shall be accompanied by the original documentary evidence relating to the appeal and incorporated by reference into the record on appeal, unless the trial judge shall have directed, in the order of approval of the record on appeal, that all or any part of such documentary evidence, be retained in the trial court, in which case it shall be substituted by certified copies. The clerk of the trial court shall also transmit with the record a certified transcript of the stenographic report of the oral evidence relating to the appeal, or state the reasons why he is unable to do so.

17. When a deposition is received by the clerk for use as evidence in any cause it shall be opened and united to the proper file. The parties shall then be notified by the clerk that such deposition has been received, and it shall remain subject to inspection by them.

18. These rules shall take effect the first day of January, 1919.

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

Quintin Paredes, Professorial Lecturer on Criminal Law.

Enrique Altavas, Professorial Lecturer on Land Registration and Mortgages.

FEBRUARY, NINETEEN HUNDRED AND NINETEEN

NOTE AND COMMENT

THE CONVENTION OF THE PHILIPPINE

BAR ASSOCIATION

Composed of the most eminent lawyers of the Philippine Islands, including distinguished jurists from Japan, China and Formosa, the annual convention of the Philippine Bar Association met last month. Hon. George A. Malcolm, Associate Justice of the Supreme Court of the Islands and President of the Association, was the moving spirit of the convention. Dr. Taduso Tanimo, Chief Justice of the Supreme Court of Formosa, with Associate Justice Ichiji Wada of the same country, Dr. Asquichiro Masujima, and Dr. Toshio Hanaoka, representatives of the Japanese Bar Association, and Wenfu Yiko Hu, Associate Justice of the Supreme Court of China, were among the most prominent foreign guests of the Association.

In the language of Justice Malcolm, this convention has a unique significance in itself in that it is one of international importance, a forerunner of a greater association which he called the Oriental Bar Association. The recent convention has laid the foundation of the closer relationship between the Islands and the countries of Japan, China and Formosa as leaders of Oriental affairs and will go down in history as a monumental success of Philippine lawyers in hastening the dawn of a free, civilized, and united Orient.-R. B. F.

RECENT CASES

(Decided by the Supreme Court of the Philippine Islands.)

Reported by H. C.

It appears in this case that on Feb. 23, 1914, one Pozcoguin, being then the owner of the house and lot where a Cinematograph was being conducted, as well as of cinematographic apparatus and furnitures used in connection therewith, executed a contract of sale with pacto de retro in favor of Timoteo Lanuza covering said lot, cinematographic establishment, its furniture, and accessories for a certain sum of money, the period for redemption being fixed in two years. It was further agreed that the vendor Pozcoguin should remain in possession as tenant of Lanuza. This contract was ratified before a notary public and the incumbrance thus created on the house and lot were noted in the Torrens' Title of Pozcogin. On June 9, 1915, Pozcoguin executed a chattel mortgage in favor of Wolfson covering the same chattels that had been included in the aforesaid sale by pacto de retro to T. Lanuza. The question is whether a chattel mortgage duly executed and registered in conformity with the provisions of act 1508 takes precedence over a prior sale with pacto de retro, duly executed and ratified before a notary public.

CHATTEL MORTGAGE; PRIORITY OF SALE WITH PACTO DE RETRO A sale of personal property under an agreement providing that the seller may repurchase the property within a stated period and that meanwhile he shall remain in possession of the property as lessee and pay a stipulated sum for the use thereof takes precedence over a chattel mortgage of later date executed by the original owner to secure a loan of money advanced by a person ignorant of the prior sale. (Juan Lanuza vs. Jos. Wolfson G. R. No. 13465, Nov. 26, 1918.)

WILLS; PROBATE; PUBLICATION OF NOTICE.-Where a will is duly probated after publication pursuant to sec. 630 of Code of Civil Procedure, the order admitting the will is, in the absence of fraud, effective against all persons. The fact that an heir or other interested party lives so far away as to make it impossible for such party to be present at the date appointed for the probate of the will does not render the order of probate void for lack of due process.

ID.; ID.; APPLICATION TO SET PROBATE ASIDE.-Under sec. 113 of act 190 a court has the authority upon timely application of any interested party to set aside the probate of a will and grant a rehearing, where a proper case for the exercise of this power is made to appear in the application.

WILL OF AMERICAN CITIZEN -The intrinsic validity of the provisions of the will of a citizen of one of the American States, proved under sec. 636 of act 190, is governed by the laws of the State of which he is a citizen.

EVIDENCE-JUDICIAL NOTICE.-The courts of the Philippine Islands are not authorized to take judicial notice of the laws of the various states of the American

Union, although they may take judicial notice of the laws enacted by Congress. (In the matter of the estate of Emil. H. Johnson, deceased, G. R. No. 12767, Nov. 16, 1918)

On Sept. 30, 1916, the Cia. General de Tabacos de Filipinas entered into a con tract in writing with the Visayan Refining Co., under which the Compañia General de Tabacos agreed to purchase coprax for the account of the Visayan Refining Co.; the services of the former to be compensated by a commission of 1-2% upon the amount of the purchases. The purchases were to be made with funds advanced by the Tabacalera to be refunded by the Refining Co. although in reality made almost exclusively with funds furnished by the Refining Co. and at prices determined by it, The Tabacalera bought the coprax in its own name without disclosing the name of the principal. The coprax was delivered to the Refining Co.

In the performance of the mercantile transaction here described, did the Tabacalera act as a commission merchant or as a merchandise broker?

MERCHANT.-Means a person engaged in the sale, barter or exchange of persona! property of whatever character. The term includes commission merchant having establishment of their own for the keeping and disposal of goods of which sales or exchanges are effected, but does not include merchandise broker (Sec. 1459 Ad. Code. 1917.)

MERCHANDISE BROKER.—Includes all persons other than commission merchants and salaried employees, whose occupation is to bring about sales of merchandise for other persons, or to bring proposed buyers and sellers together, for a compen. sation.

TABACALERA A COMMISSION MERCHANT.-The Cia. General de Tabacos de Filipinas was a merchant that bought coprax in the market at a price set by the Refining Co. and re-sold it to said Co. for the same price plus 1-%% commission. (Cia. Gral. de Tabacos de Filipinas vs Rafferty, Collector of Internal Revenue, G. R. No. 13187, Dec. 17, 1918).

The editor of the "Kong Li Po," a Chinese newspaper, pictures the Vice Consul as having promoted the vice of gambling among the Chinese, as even having set up a gambling den in his own house, from which he was accustomed to collect a percentage, and as a slave doing menial work through his lust for gain.

LIBEL; JUSTIFICATION.-The editor and proprietor of the Chinese newspaper "Kong Li Po" was responsible for an article in this periodical, which viciously attacked the good name of the Chinese Vice Consul. The purpose of the editor was probably laudable but he failed to establish the truth of the charges, or to justify publication.

ID; ID;-The mere fact that one believes the charges to be true, or that at the time of publication the defamatory matter was the subject of general rumor or report is no justification. (U. S. vs. G. U. Liongsin, G. R. No. 13784, Jan, 6, 1919.)