VIII. DEATH OF ONE OF THE SOLIDARY DEBTORS A. Spanish Law The writer believes that death of one of the joint debtor does not extinguish the obligation but the other co-debtors will still be responsible for the whole debt without prejudice of course to reimbursement against the property of the deceased before the same be distributed to his heirs. (See Arts. 1082, 1084, 1085, Civil Code.) American Law B. If two or more persons are bound jointly to pay a sum of money, and one of them dies, at common law his death not only severs the joinder, but terminates the liability which belonged to him, so that it cannot be enforced against his representatives either alone or jointly with the survivors. But if they were bound jointly and severally the death of one has not this effect. If bound jointly, the whole debt becomes the debt of the survivors alone, and if they pay the whole, they can have at law no contribution against the representatives of the deceased, because this would be an indirect revival of a liability which death has wholly terminated. If the last survivor, however, dies leaving the debt unpaid, his representatives alone are chargeable, and have no contribution against the representative of the other deceased obligor. (Osborne vs. Crosbern, 1 Sid. 238; Foster vs. Hooper, 2 Mass. 572; Moore vs. Roger, 19 Ill. 347; Ballorce vs. Samuel, 4 Ill. 380; Brown vs. Benight, 23 Am. Dec. 373.) But in most of the United States these rules are changed by statute (equity remedy). The representatives of the deceased continue to be bound by this obligation. If the debtors were jointly bound, the creditor could bring but one action when all were alive, and that against all; and then obtaining judgment and taking out execution against all, he might levy it on all or either as he choses, leaving them to adjust their proportion by contribution. After the death of a joint debtor, the creditor can not joint the survivors and the representatives of the deceased in one action, even if the statute gives the creditor where one of many joint debtors dies, the same remedy by action as if the contract were joint and several, inasmuch as an executor can not be joined with the survivors in an action upon a contract which was originally joint and several because one would be charged de bonis testatoris and the other de bonis propriis, which can not be, but the creditor may elect which to sue. (Enys vs. Donmithorne, 2 Bur. 1190.) He may sue either or both in distinct actions and may levy his executions upon either or both. But he can get in the whole, only the amount of his debt; and the survivors and the representatives of the deceased, or the representatives of all the debtors if all are deceased have against each other a claim for contribution if either pay more than a due proportion. (Batchelder vs. Fiske, 17 Mass. 464; Williams vs. Bradley, 5 Ohio Cir. Co., 114; Voorhis vs. Childs, 17 N. Y. 354; Pope vs. Cole, 14 Am. Rep. 198; See also Parsons on Contracts, Vol. 3, page 28; 6 Ruling Case Law, page 880; Elliot on Contracts, Vol. 2, Sec. 1487.) IX. CAUSES of ExtinguishMENT OF OBLIGATION In general the causes for extinguishing the obligation are those provided for in article 1156 of the Civil Code which provides that obligations are extinguished: 1. By their payment or compliance with them; 2. By the loss of the thing due; 4. By the merging of the rights of the creditor and debtor: 5. By compensation; 6. By novation. CHAPTER V. In the preceding pages the reader might have noticed some points of instability of some enunciated principles. Since our law is yet in its formation it is but natural to meet such apparent anomalies. In fact the writer has often doubted in the preparation of his thesis as to which law governs in some especial cases. The Philippines seem to be favored by circumstances in being the meeting place of the two systems of law, the Anglo Saxon Common Law and Civil Law. Between the rigorism of the stoic Civil Law and the equitable principles of the English Law, the Philippine Law is being evolved out of the best elements of the two. The writer can not help but notice the struggle which originated in England between Lord Coke and "the greatest, wisest, meanest of mankind” who championed the cause of Roman Civil Law-Francis Bacon known as Lord Bacon. However, much, the champions of Common Law may pride themselves in its elasticity and equity yet it may not be amiss to remind them that their law is but a modification of the Roman Civil Law. Many of the Norman prelates versed in Civil Law of Rome went with William the Conqueror to England and it was they who infused the Roman law into the imperfect Common Law under the name of equity. (See Morris History of the Development of the Law, page 277.) That infusion, or rather the dispute between Lord Coke and Lord Bacon is not yet settled. It has reached our shores though not with the former cynicism of the original antagonists. The contest is carried out peaceably which in time to come will no doubt form the body of the Philippine Law. 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. Subscription P4.00 and P5.00 per year. Single number 75 centavos. Supplement 60 centavos ASST. BUSINESS MANAGER Arturo A. Ignacio, 1919 Law Alumni College News Note and Comment FACULTY ADVISORY COMMITTEE Jorge Bocobo, Dean of the College of Law. Quintin Paredes, Professorial Lecturer on Criminal Law. Enrique Altavas, Professorial Lecturer on Land Registration and Mortgages. OCTOBER, NINETEEN HUNDRED AND NINETEEN NOTE AND COMMENT FRANCISCO VENTURA, Senior "A GUIDE BOOK ON PHILIPPINE QUESTION" Editor The Press Bureau, Philippine Mission, at Washington, D. C., in connection with its publicity work is distributing throughout the United States and the Philippines thousands of copies of the "Guide Book on Philippine Question" prepared by Maximo M. Kalaw, secretary of the Philippine Mission to the United States. A copy of the said booklet in pamphlet form has been sent to the Editor, Philippine Law Journal. It gives a brief history of the Philippines and discusses the progress of the Islands in its political, educational and economic development. A comparison is made of the present conditions of the country with those of the Thirteen Colonies when they obtained their independence. In order to show the attitude of the American nation to the Philippine problem, various quotations from the utterances of the Presidents of the United States and men high in authority in the government of that country, have been reprinted. The reasons justifying the claim of the Filipino people to a complete independence are ably set forth in the latter part of this booklet. BOOK REVIEWS "Manual de Formularios." By F. C. Fisher, formerly Associate Justice of the Supreme Court of the Philippines. Manila Lawyers' Co-operative Pub. Co., 1919, pages 458. In 1903, Mr. Fisher published the first edition of his "Formularios," a Spanish text, which is a compilation of various forms in accordance with the Code of Civil Procedure of the Philippine Islands in civil cases and special proceedings. The new book which is just off the press, is a second edition of the same work with new forms being added. It consists of two parts, the first one of which is a discussion of the general principles governing the present procedural system in our courts, and the second gives in a systematic manner various samples of good forms as used in actual practice of the law. This piece of work is of great aid to all practicing attorneys as well as to justices of the peace. To the law students it is no less a valuable ready reference in connection with his exercises in Elementary Procedure and in Practice Court, for be it remembered that in our courts pleadings in the Spanish language are as yet largely in vogue. "Self-Government in the Philippines." By Assistant Professor Máximo M. Kalaw, Chief of the Department of Political Science, University of the Philippines. N. Y., Century Co., 1919, pages xci, 210. A true and comprehensive record of the accomplishments of the Filipino people in the organization and handling of the new government under the Jones Law, is this new book written by one who has been a close student of the Philippine problem. Prof. Kalaw shows in a logical and masterful manner the constitutional growth and success of the Philippines under an autonomous government and emphasizes the fact that a "stable government" has been satisfactorily established under Filipino control. The book is made of nine chapters, namely, (1) Our covenant with America (in which he gives a résumé of Filipino-American relations up to the passage of the Jones Law), (2) The Organization of the new government (a description of the governmental organization under the Jones Law), (3) The Philippine budget system (the establishment of a scientific system of government finance), (4) Filipino loyalty during the War (giving palpable proofs of Filipino adherence to American ideals), (5) Economic development (showing the growth of commerce and increase of business activities), (6) Progress of local government (extension of autonomy to local governments), (7) Our treatment of the non-Christian tribes (educational opportunities given the tribes in order to effect the policy of assimilation), (8) A stable government established (meaning of "stable government" as interpreted by America in giving Cuba her independence; proofs of the fulfillment of the condition imposed by the Jones Law), (9) The promise of the Philippines (a refutation of the assertion that Japan will grab the Islands, and an exposition of the future relations of the Philippines with the United States). SHOULD A STRIKE DELAY IN PERFORMANCE OF A CONTRACT? In view of the fact that strike is becoming almost an everyday occurrence in the Philippines, we deem it important to publish an excerpt from the Editorial Notes of the Columbia Law Review, May 1919, in order to see what liability if any has a party that is unable to perform a certain contract on account of a strike. The courts have long recognized that under certain circumstances subsequently arising contingencies, unforeseen at the time of the inception of a contract, will excuse impossibility of performance. Should a supervening strike be regarded as such a contingency? The courts have generally held that when a contract specifies a fixed time for performance and there is no stipulation as to the effect of a subsequent strike, the party unable to perform in due time because of the strike is not excused from his obligation and is bound to pay damages for non-performance. The other party is not obliged to accept performance after the date fixed. If he does so, he is entitled to damages for the delay. This result apparently follows from the recognition by the courts that a strike, just as numerous other contingencies, is one of the risks that is incident to the obligation and that the party assuming the obligation assumes that risk in the absence of an expressed stipulation to the contrary. Where, however, there is no time stipulation in the contract a different result has been reached. This is apparently due to the effect that the courts have given to the absence of the time provision, and not to any different conception of the effect of a strike as a supervening contingency. All the courts lay down the rule that in a case where no time is fixed a reasonable time for performance is to be inferred. The majority opinion laid down the test of the meaning of a "reasonable time" in the folowing language, "The question is whether the delay complained of was reasonable or unreasonable, not in view of the circumstances existing at the time the contract was made, but in view of the circumstances existing when the contract was being performed."-A. C. RECENT CASES (Decided by the United States Supreme Court) (By F. V.) CONTRACT; OFFER AND ACCEPTANCE; COUNTER OFFER; OPTION. Suit for the specific performance of an alleged contract to sell land. B. Valdes made an offer, dated Dec. 4, 1911, to W. Borck, real estate agent in Manila, in which he gave |