In Re Application of MAX SHOOP For Admission To Practice Law

8/30/2019 PHILIPPINE REPORTS ANNOTATED VOLUME 041
[November 29, 1920.]
In re Application of MAX SHOOP for admission to practice law.
1. ADMISSION TO BAR; PARAGRAPH FOUR OF THE RULES

FOR THE ExAMINATION OF CANDIDATES FOR
ADMISSION TO THE PRACTICE OF LAW CONSTRUED;
COMITY BETWEEN THE STATE OF NEW YORK AND THE
PHILIPPINE ISLANDS.—Paragraph four of the rules for the
examination of candidates for admission to the practice of law,
promulgated by the Supreme Court of the Philippine Islands and
effective after July 1, 1920, in part, reads: "Applicants for
admission who have been admitted to practice in the Supreme
Court of the United States or in any circuit court of appeal or
district court, therein, or in the highest court of any State or
territory of the United States, which State or territory by comity
confers the same privilege on attorneys admitted to practice in the
Philippine Islands, and who can show by satisfactory affidavits that
they have practiced at least five years in any of -said courts, may, in
the discretion of the court, be admitted without examination." A
portion of the rules adopted by the Appellate Division of the New
York Court, concerning admission to the Bar of New York without
examination, reads:
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214 PHILIPPINE REPORTS ANNOTATED
In re Shoop.
"(1) Any person admitted to practice and who has practiced five
years as member of the bar in the highest law court in any other
state or territory of the American Union or in the District of
Columbia. (2) Any person admitted to practice and who has
practiced five years in another country whose jurisprudence is
based on .the principles of the English Common Law." The
supporting papers of Max Shoop show that he has been admitted to
practice and has practiced for more than five years in the highest
court in the State of New York. Held: That the petition of applicant
be granted and that he be admitted to the practice of law in the
Philippine Islands.
2. ID.; ID.; ID.; PHILIPPINE ISLANDS A TERRITORY.—Under

paragraph 1 of the New York rule, practice for five years in the
highest court in any "State or territory of the American Union" is
the basic qualification. The Philippine Islands is an unorganized
territory of the United States, under a civil government established
by Congress. The Philippine Islands is a territory of the United
States within the meaning of the word as used in that rule.
3. ID.; ID.; ID.; PHILIPPINE COMMON LAW.—A survey of recent

cases in the Philippine Reports, and particularly those of the last
few years, shows an increasing reliance upon English and
American authorities in the formation of what may be termed a
Philippine Common Law, as supplemental to the statute law of this
www.central.com.ph/sfsreader/session/0000016ce2e11ed97d4ba531003600fb002c009e/t/?o=False 1/35
jurisdiction. An analysis of two groups of recent cases—the first,

those under the subjects covered by Spanish statutes, and the
second, those covered by American-Philippine legislation and
affected by the change in sovereignty—shows that Anglo-
American case law has entered practically every one of the leading
subjects in the field of law and in a large majority of such subjects
has formed the sole basis for.the guidance of this court in
developing the local jurisprudence.
4. ID. ; ID.; ID.; ID.—The past twenty years have developed a

Philippine Common Law or case law based almost exclusively,
except where conflicting with local customs and institutions, upon
Anglo-American Common Law. The Philippine Common Law
supplements and amplifies our statute law.
5. ID.; ID.; ID.; ID.—The jurisprudence of this jurisdiction is based

upon English Common Law in its present day form of
AngloAmerican Common Law to an almost exclusive extent.
6. ID.; ID.; ID.; ID.—There has been developed, and will continue, a
common law in the jurisprudence of this jurisdiction (which for
purposes of distinction may properly be termed a Philippine
Common Law), based upon the English Common Law in its
present day form of an Anglo-American ' Common Law, which
common law is effective in all of the subjects of law in
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In re Shoop.
this jurisdiction in so f ar as it does not conflict with the express

language of the written law or with the local customs and
institutions.
7. ID. ; ID. ; ID. ; ID.—In interpreting and applying the bulk of the
written laws of this jurisdiction, and in rendering its decision in
cases not covered by the letter of the written law, this court relies
upon the theories and precedents of Anglo-American cases, subject
to the limited ed exception of those instances where the remnants of
the Spanish written law present well-defined civil law theories and
of the few cases where such precedents are inconsistent with local
customs and institutions.
PETITION submitted to the Supreme Court for admission to the bar

of the Philippine Islands.
The facts are stated in the opinion of the court.
MALCOLM, J.:
Application has been made to this court by Max Shoop for

admission to practice law in the Philippine Islands under paragraph
four of the Rules for the Examination of Candidates for Admission
to the Practice of Law, effective July 1, 1920. The supporting papers
show that the applicant has been admitted to practice, and has
practiced for more than five years in the highest court of the State of
New York.
THE RULES.
That portion of the rules of this court, in point, is as f ollows:
"Applicants for admission who have been admitted to practice in

the Supreme Court of the United States or in any circuit court of
appeal or district court, therein, or in the highest court of any State
or territory of the United States, which State or territory by comity
confers the same privilege on attorneys admitted to practice in the
Philippine Islands, and who can show by satisfactory affidavits that
they have practiced at least five years in any of said courts, may, in
the discretion of the court, be admitted without examination."
The above rule requires that New York State by comity confer
the privilege of admission without examination under
216

In re Shoop.
similar circumstances to attorneys admitted to practice in the

Philippine Islands. The rule of the New York court permits
admission without examination, in the discretion of the Appellate
Division in several cases, among which are the following:
"1. Any person admitted to practice and who has practiced five
years as a member of the bar in the highest law court in any
other state or territory of the American Union or in the
District of Columbia.
"2. Any person admitted to practice and who has practiced five
years in another country whose jurisprudence is based on
the principles of the English Common Law."
This court is advised informally that under this rule one member of
the bar of the Philippine Islands has been admitted to practice,
without examination, in the State of New York, and one member of
the same bar has been ref used such admission, the latter being the
more recent case. The rulings of the New York court have not been
brought to the attention of this court authoritatively, but assuming
that reports of such rulings by the New York court are true, in view
of the apparent conflict, it seems proper to enter upon the
consideration of whether or not under the New York rule as it exists
the principle of comity is established. It must be observed that under
the rules of both jurisdictions, admission in any particular case is in
the discretion of the court. Refusal to admit in any particular case is
not necessarily conclusive as to the general principles established by
the rules.
THE PHILIPPINE ISLANDS—A TERRITORY.
Under paragraph 1 of the New York rule, practice for five years in
the highest court in any "State or territory of the American Union" is
the basic qualification. If the Philippine Islands is a territory of the
United States within the meaning of the word as used in that rule,
comity would seem to exist.
The word "territory" has a general and a technical meaning. It is
clear that the Philippine Islands is not an 'or-
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ganized territory" incorporated into the United States under the

constitution. (Dorr vs. U. S., 195 U. S., 138.) It is likewise clear that
the Philippine Islands is not a "foreign country." (The Diamond

Rings, 183 U. S., 176.) In the language of that case it is a "territory
of the United States over which civil government could be
established." So also is Porto Rico (De Lima vs. Bidwell, 182 U. S.,
1.) It has been held that Porto Rico is not a foreign territory and that
the United States laws covering "territories," such as the Federal
Employers' Liability Act, includes Porto Rico. (American Railroad
Co. of Porto Rico vs. Didricksen, 227 U. S., 145.) Porto Rico,
Hawaii, and Alaska are now incorporated, organized territories of
the United States. (Muratti vs. Foote, 25 Porto Rico, 527; Hawaii vs.
Mankichi, 190 U. S., 197; Rasmussen vs. U. S., 197 U. S., 516.)
An opinion of the Attorney-General of the United States holds
that—
"While, like Porto Rico, the Philippine Islands are not
incorporated in the United States, they clearly are territory of the
United States and to the extent that Congress has assumed to
legislate for them, they have been granted a form of territorial
government, and to this extent are a territory." (30 Op. Atty.-Gen.,
U. S., 462, reversing 24 Op. Atty.-Gen., U. S., 549.)
Further, the Philippine Islands have been held not to be "another
country" within the meaning of the Cuban Commercial Treaty.
(Faber vs. U. S., 221 U. S., 649.) Chief Justice Marshall, in
construing the phrase "United States" once observed:
"Does this term designate the whole or any particular portion of
the American Empire? Certainly this question can admit of but one
answer. It is the name given to our great Republic, which is
composed of states and territories. The District of Columbia or the
territory west of Missouri is not less within the United States than
Maryland or Pennsylvania." (Loughborough vs. Blake, 5 Wheat [U.
S.], 317, at p. 319.)
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In re Shoop.
This is the broad general view which would seem to have been the
point of view of the New York courts in using the phrase "Any state
or territory of the American Union." The New York rule
contemplates "state," "territory," and "another country." It seems
clear that the Philippine Islands is not "another country." It is not
believed that the New York court intended the word territory to be
limited to the technical meaning of organized territory, or it would
have used the more accurate expression. The full phraseology, "any
state or territory of the American Union," indicates a sweeping
intention to include all of the territory of the United States, whatever
the political subdivision might be, as distinguished from foreign
country. Otherwise, the Philippine Islands would be in an anomalous
position like unto Edward Everett Hale's "A Man Without a
Country"—a land neither "another country," nor a "state," nor a
"territory"—a land without status.
Of course the construction of what is intended by the use of that
phrase is for the New York courts finally to determine, but in the
absence of any authoritative decision from the New York courts on
the point, we feel justified in concluding that under paragraph 1 of
the New York rule there exists between that jurisdiction and this,
with reference to admission of attorneys without examination, a
basis of comity sufficient to satisfy the requirement in the rule of this
court in that regard.
A COMMON LAW JURISDICTION.
But assuming that comity is not permitted under paragraph 1 of the

New York rule, we turn to a consideration of whether or not it exists
by virtue of paragraph 2. This rule applies to "another country whose
jurisprudence is based on the principles of the English Common
Law." We have then further to assume that if the Philippine Islands
is not a "state or territory," that it must be "another country." The
question then presented is upon what principles is the present
jurisprudence of these Islands based? This is a question which can
properly be answered by this
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court. It is a problem, however, upon which books could be and have

been written. We will endeavor to make a brief analysis of the
situation.
What is "jurisprudence based on the principles of the English
Common Law?" Jurisprudence is the groundwork of the written law,
or, as Bouvier defines it, 'The science of law. The particular science
of giving a wise interpretation to the laws and making a just
application of them to all cases as they arise." In an untechnical
sense, it sometimes means Case Law.
COMMON LAW IN THE UNITED STATES.
We must assume that the New York court, in using this phrase,
considered that the jurisprudence of New York State was based upon
the principles of the English Common Law. We should, therefore,
consider to what extent the English Common Law principles apply
to New York. In a case in 1881 we find the f ollowing:
"And the Common Law of England was the law of the colony at
that date (April 19, 1775), so far as it was applicable to the
circumstances of the Colonists. And it has since continued so to be,
when conformable to our institutions, unless it was established by an
English statute which has since been abrogated or was rejected in
colonial jurisprudence, or has been abolished by our legislation."
(Cutting vs. Cutting, 86 N. Y., 522, p. 529.) And again:
"This court has interpreted this provision of the constitution to
mean not that all of the Common Law of England was the law of the
Colonists at the time of the making of the Constitution, but only so
much of it as was applicable to the circumstances of the Colonists
and conformable to our institutions. Cutting vs. Cutting, 86 N. Y.,
522, p. 529; Williams vs. Williams, 8 N. Y., 525, p. 541." (Shayne
vs. Evening Post Publishing Co., 168 N. Y., 70, at p. 76.)
In Morgan vs. King (30 Barber [N. Y.], 9), the New York court
said that in adopting the English Common Law, New York adopted:
220

In re Shoop.
"The written law of England as a constantly improving science

rather than as an art; as a system of legal logic, rather than as a code
of rules,—that is, that the f undamental principles and modes of
reasoning and the substance of the rules of the Common Law are
adopted as illustrated by the reasons on which they are based, rather
than the mere words in which they are expressed."
Once more, in 1903, the New York court said in connection with
a question of the right of the public to use the foreshore:
"In adopting the Common Law of the Mother country we did not
incorporate into our system of jurisprudence any principles which
are essentially inconsonant with our circumstances or repugnant to
the spirit of our institutions." (Barnes vs. Midland Railroad Terminal
Co., 193 N. Y., 378, at p. 384.)
The above statements of the New York court clearly indicate the
scope of the English Common Law in that state. In most of the
States, including New York, codification and statute law have come
to be a very large proportion of the law of the jurisdiction, the
remaining proportion being a system of case law which has its roots,
to a large but not an exclusive degree, in the old English cases. In
fact, present day commentators refer to American jurisprudence or
Anglo-American jurisprudence as distinguished from the English
Common Law.
Accordingly, in speaking of a jurisprudence which is "based on
the English Common Law," for present purposes at least, it would
seem. proper to say that the jurisprudence of a particular jurisdiction
is based upon the principles of that Common Law, if, as a matter of
fact, its statute law and its case law to a very large extent includes
the science and application of law as laid down by the old English
cases, as perpetuated and modified by the American cases.
COMMON LAW ADOPTED BY DECISION.
The concept of a common law is the concept of a growing and ever-

changing system of legal principles and theories,
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and it must be recognized that due to the modern tendency toward

codification (which was the principle of the Roman and Civil Law),
there are no jurisdictions to-day with a pure English Common Law,
with the exception of England itself. In the United States the English
Common Law is blended with American codification and remnants
of the Spanish and French Civil Codes. There a legal metamorphosis
has occurred similar to that which is transpiring in this jurisdiction
to-day. Some of the western states, which were carved out of the
original Louisiana territory, have adopted the Common Law by
decision. (State vs. Twogood, 7 lowa, 252; Barlow vs. Lambert, 28
Alabama, 704; Parsons vs. Lindsay, 41 Kansas, 336; McKennen vs.
Winn, 1 Okla., 327.)
Louisiana has long been recognized as the one State of the Union
which retained a portion of the Civil Law. In a case in 1842 in
Louisiana, the court considered the question of whether a protest on
a promissory note had been made within the required time. The
court rejected the straight Civil Code rule, and adopted the custom
of New Orleans, which was the law of the sister States, saying:
"The superior court of the late territory of Orleans very early held
that although the laws of Spain were not abrogated by the taking
possession of the country by the United States, yet from that event
the commercial law of the Union became the commercial law of
New Orleans; and this court has frequently recognized the
correctness of these early decisions, principally in bills of exchange,
promissory notes and insurance." (Wagner vs. Kenner, 2 Rob. [La.],
120.)
In Xiques vs. Bujac (7 La. Ann., 498, at p. 504), the court after
deciding a question involving the dedication of real property
according to the Civil Code rules, said:

"I must add that the general doctrine laid down in Common Law
courts has been admitted by our courts with some modification
resulting from our different systems of law."
Louisiana, by statute, adopted certain common law rules, and
with reference to these the court said, in State vs. McCoy (8 Rob.
[La.], 545) :
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In re Shoop.
"We concur with the counsel in believing that the legislature in

adopting the Common Law rules of proceeding, method of trial, etc.,
adopted the system as it existed in 1805, modified, explained and
perfected by statutory enactment, so far as those enactments are not
found to be inconsistent with the peculiar character and genius of
our government and institution."
From this brief survey of the extent of the English Common Law
basis in the States, we may conclude—(1) that the New York Court
in referring to a jurisdiction whose jurisprudence is based on the
English Common Law, uses the phrase in a general sense; and (2)
that such Common Law may become the basis of the jurisprudence
by decision of the courts where practical considerations and the
effect of sovereignty gives ground for such a decision. If, in the
Philippine Islands, a comparatively young jurisdiction, English
Common Law principles as embodied in AngloAmerican
jurisprudence are used and applied by the courts to the extent that
such Common Law principles are not in conflict with the local
written laws, customs, and institutions as modified by the change of
sovereignty and subsequent legislation, and there is no other foreign
case law system used to any substantial extent, then it is proper to
say in the sense of the New York rule that the "jurisprudence" of the
Philippine Islands is based on the English Common Law.
IN THE PHILIPPINE ISLANDS.
The extent of the English or the Anglo-American Common Law

here has not been definitely decided by this court. But when the
subject has been referred to' by this court there has been a striking
similarity to the quotations from the American decisions above cited
with reference to the English Common Law.
In Alzua and Arnalot vs. Johnson (21 Phil., 308), this court, in
passing upon an objection of counsel, that while a certain rule was
universally recognized and applied in the courts of England and the
United States, it was not the law in the Philippine Islands, said:
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"To this we answer that while it is true that the body of the Common
Law as known to Anglo-American jurisprudence is not in force in
these Islands, 'nor are the doctrines derived therefrom binding upon
our courts, save only in so far as they are founded on sound
principles applicable to local conditions, and are not in conflict with
existing law' (U. S. vs. Cuna, 12 Phil., 241) ; nevertheless many of
the rules, principles, and doctrines of the Common Law have, to all
intents and purposes, been imported into this jurisdiction, as a result
of the enactment of new laws and the organization and establishment

of new institutions by the Congress of the United States or under its
authority; for it will be found that many of these laws can only be
construed and applied with the aid of the Common Law from which
they are derived, and that to breathe the breath of life into many of
the institutions introduced in these Islands under American
sovereignty recourse must be had to the rules, principles, and
doctrines of the Common Law under whose protecting aegis the
prototypes of these institutions had their birth."
* * * * * * *
"And it is safe to say that in every volume of the Philippine Reports

numbers of cases might be cited wherein recourse has been had to
the rules, principles and doctrines of the Common Law in
ascertaining the true meaning and scope of the legislation enacted in
and for the Philippine Islands since they passed under American
sovereignty." (Pp. 331, 333.)
And later in speaking of the judicial system of the Philippine
Islands (page 333):
"The spirit with which it is informed, and indeed its very
language and terminology would be unintelligible without some
knowledge of the judicial system of England and the United States.
Its manifest purpose and object was to replace the old judicial
system, with its incidents and traditions drawn from Spanish
sources, with. a new system modelled in all its essential
characteristics upon the
224

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judicial systems of the United States. It cannot be doubted,

therefore, that any incident of the former system which conflicts
with the essential principles and settled doctrines on which the new
system rests must be held to be abrogated by the law organizing the
new system."
In U. S. vs. De Guzman (30 Phil., 416), the court spoke as
follows:
"We have frequently held that, for the proper construction and
application of the terms and provisions of legislative enactments
which have been borrowed from or modelled upon Anglo-American
precedents, it is proper and ofttimes essential to review the
legislative history of such enactments and to find an authoritative
guide for their interpretation and application in the decisions of
American and English courts of last resort construing and applying
similar legislation in those countries. (Kepner vs. U. S., 195 U. S.,
100; 11 Phil., 669; Serra vs. Mortiga, 204 U. S., 470; 11 Phil., 762;
Alzua and Arnalot vs. Johnson, 21 Phil., 308.) Indeed it is a general
rule of statutory construction that courts may take judicial notice of
the origin and history of the statutes which they are called upon to
construe and administer, and of the facts which affect their
derivation, validity and operation. (2 Lewis' Sutherland on Statutory
Construction, sec. 309.)"
In U. S. vs. Abiog and Abiog (37 Phil., 137), this court made this
further statement on the subject:
"To elucidate—the principles of the Anglo-American Common
Law are for the Philippines, just as they were for the State of
Louisiana and just as the English Common Law was for the United
States, of far-reaching influence. The Common Law is entitled to our
deepest respect and reverence. The courts are constantly guided by
its doctrines. Yet it is true as heretofore expressly decided by this
Court that—'neither English nor American Common Law is in force

in these Islands, nor are the doctrines derived therefrom binding
upon our courts, save only in so far as they are founded on sound
principles applicable
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to local conditions, and are not in conflict with existing law.' (U. S.
vs. Cuna [1908], 12 Phil., 241.)"
"What we really have, if we were not too modest to claim it, is a
Philippine Common Law influenced by the English and American
Common Law, the derecho común of Spain, and the customary law
of the Islands and builded on a case law of precedents. Into this
Philippine Common Law, we can properly refuse to take a rule
which would estop other courses of reasoning and which, because of
a lack of legal ingenuity would permit men guilty of homicide to
escape on a technicality."
At this juncture, three years after the last quoted comment, the
influence of English and American jurisprudence can be emphasized
even more strongly. A survey of recent cases in the Philippine
Reports, and particularly those of the last few years, shows an
increasing reliance upon English and American authorities in the
formation of what may be termed a Philippine Common Law, as
supplemental to the statute law of this jurisdiction. An analysis will
show that a great preponderance of the jurisprudence of this
jurisdiction is based upon Anglo-American case law precedents,—
exclusively in applying those statutory laws which have been
enacted since the change of sovereignty and which conform more or
less to American statutes, and—to a large extent in applying and
expanding the remnants of the Spanish codes and written laws.
PHILIPPINE STATUTE LAW.
Introductory to analyzing what Spanish written laws remain in force

to-day, we will consider in a general way those Spanish laws which
were in force at the time of the change of sovereignty.
Spanish law became highly codified during the nineteenth
century. All of the laws of' Spain were, however, not made
applicable to the Philippine Islands; only those were effective here
which were extended by royal decree. The
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chief codes of Spain made effective in the Philippines were as

follows:
Penal Code 1887

...................................................................................................................
Code of Commerce 1888
......................................................................................................
Ley Provisional, Code of Criminal
Procedure, and Code of Civil Pro-
cedure
....................................................................................................................... 1888
Civil Code 1889
.....................................................................................................................
(Except portion relating to mar-
riage, thus reviving a portion of
Marriage Law of 1870.)
Marriage Law 1870
...............................................................................................................
Mortgage Law 1889
..............................................................................................................
Railway Laws 1875
................................................................................................................ and
1877
Law of Waters 1866
..............................................................................................................
In addition to these there were certain special laws having limited

application: Las Siete Partidas; Las Leyes de Toro; Leyes de las
Indias; La, Novísima Recopilación; Mining Law; Notarial Law;
Spanish Military Code, and the Copyright Law.
The foregoing were written laws which, by change of
sovereignty, acquired the force of statute law in the Philippine
Islands. There was no properly called Common Law or Case Law of
Spain to accompany and amplify these statutes, although there were,
of course, the customs of the people of the Islands, which
constituted, in a sense, unwritten law. Spanish jurisprudence does
not recognize the principle of stare decisis; consequently, there
could be no Common Law in any sense analogous to the English or
American Common Law. Article 6 of the Civil Code provides:
"When there is no law exactly applicable to the point in
controversy, the customs of the place shall be observed, and in the
absence thereof, the general principles of law."
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In order to determine the general principles of law "judicial

decisions cannot be resorted to" * * *. (2 Derecho Civil of Sanchez
Roman, pp. 79—81; 1 Manresa, p. 80.) A lower court of Spain is at
liberty to disregard the decisions of a higher court. This is the
general continental rule. Holland's Jurisprudence, 11th Ed., pp. 68—
70.) "The Partidas is still the basis of Spanish Common Law, for the
more recent compilations are chiefly founded on it and cases which
cannot be decided either by these compilations or by the local fueros
must be decided by the provisions of the Partidas." (IV Dunham,
History of Spain, p. 109.)
The Partidas is a code law and cannot in any proper sense be
considered as Common Law. It specifically provided, however, for
recourse to customs when the written law was silent. The customs to
which resort is to be had are the customs of the particular place
where the case arises; the customs of one locality in Spain having no
effect on the application of law in another place. (1 Manresa, pp. 77,
79; Civil Code, art. 6; Code of Commerce, art. 2.) Accordingly, the
Spanish customary law could not have any force here. The law or
custom cannot be migratory. Manresa does not define what is meant
by "general principles of law," but from his discussion under article
6 of the Civil Code it appears how far from a case law system is
Spanish jurisprudence. He formulates the rule that courts are
governed: first, by written law; second, by the customs of the place;
third, by judicial decision; and f ourth, by general principles of law.
In fact, in urging that resort to judicial decisions should come before
resort to general principles of law, Manresa rather implies that the

practice of the courts is the contrary.
English Common Law is quite a different conception. While it
grew out of the early Anglo-Saxon customs, it came in time to be a
case law of binding force which controlled custom. In fact, it
became so binding that it was
228

In re Shoop.
found necessary, in order to effect justice in particular cases, to

establish the Court of Chancery, which became the court of equity.
The English Common Law recognizes custom only in so far as it
does not conflict with the well settled principles of that law. Under
the Spanish system, on the other hand, when the written law is
silent, before considering precedents in the cases the court is
governed by the customs of the locality at the time.
Consequently, by the change of sovereignty there was no body of
case law or common law of Spain which could be considered as
existing in connection with the written law retained in force in these
Islands. The only amplification of that written law was the local
customs of the people of the Islands. This is particularly true of
Spanish decisions rendered since the change of sovereignty, which
do not preclude the local courts from exercising an independent
judgment. (Cordova vs. Rijos, 227 U. S., 375.)
SPANISH STATUTE LAW.
The Spanish statute law, as amplified by Spanish commentaries but

without a background of Spanish precedent or case law, was by the
change of sovereignty, severed from Spanish jurisprudence and
made effective in this jurisdiction to the same extent as if Congress
had enacted new laws for the Philippines modelled upon those same
Spanish .statutes. This retention of the local private law was merely
in accordance with the principles of International Law in that regard.
However, by the mere fact of the change of sovereignty, all portions
of that statute law which might be termed political law were
abrogated immediately by the change of sovereignty. Also, all
Spanish laws, customs, and rights of property inconsistent with the
Constitution and American principles and institutions were
thereupon superseded. (Sanchez vs. U. S., 216 U. S., 167.)
We will give a brief analysis of the further extent to which the
Spanish statute law has been repealed and cut
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1
down since the change of sovereignty. The table in the note below
illustrates the situation in a general way.
________________
Subject of new Order or Act. Spanish law affected. Extent.

legislation.
1. Judiciary G. O. No. 21, 29, 47, Judicial system under Superseded.
and Act No. 136. Spanish Royal Decrees. Act
No. 136. al Decrees.
Subject of new Order or Act. Spanish law affected. Extent.
legislation.
2. Marriage G. O. No. 68 … Marriage Law, 1870. Modified
Law.
3. Criminal G. O. No. 58 … Code of Criminal Procedure Substantially
Procedure. and Ley Provisional. superseded.
4. Civil Act No. 190... Code of Civil Procedure. Do.
Procedure.
5. Crimes Various Acts of Penal Code Modified.
Philippine
Commission and
Legislature.
6. Divorce Act No. 2710.. Civil Code Sections
Law … applicable
superseded.
7. Real Titles. Estate Act No. 496... do Modified.
8. Real and Acts Nos. 496 and Mortgage Law and Civil Do.
Chattel 1508. Code.
Mortgages.
9. Corporation Act No. 1459 … Railway Laws Do.
Law.
Bankruptcy Act No. 1956 …
and
Insolvency
Law.
Negotiable Act No. 2031..
Instrument
Warehouse Act No. 2137 … Code of Commerce Substantially
Receipts Law. su- strument.
perseded.
Public Utilities Act No. 2307 …
Law.
Insurance Law Act No. 2427..
Salvage Law Act No. 2616 …
…
10. Usury Act No. 2655..
Law...
Mining Law Act of Congress, July Leyes de Minas Do.
…. 1, 1902.
11. Irrigation Act No. 2152.. Law of Waters … Modified.
Act.
12. Act No.2711 - Notarial Law, political and Incidentally
Administrative Municipal Law; Penal Code. superseded.
Code.
13. Public Act Nos. 926 and Civil Code Superseded;
Land Law. 2874. sections
affected.
230

In re Shoop.
Even the Spanish Civil Code has 2

been largely modified as will
appear f rom the table in the note below.
__________________
CIVIL CODE.
Book and title. Subjects. Status. By what law affected.

BOOK I.
Preliminary 1. General rules f or the Act No. 2711.
Modified application
of laws.
Book and title. Subjects. Status. By what law affected.
Title 2. Citizenship Repealed By change of sovereignty;
I................... Acts of Congress, July
1,1902, Aug. 29, 1916; Act
No. 2927.
Title 3. Status of persons, Slightly Code of Civil Procedure.
II................... natural or judicial. modified.
Title 4. Domicile In force
III...................
Title 5. Marriage Never in See Marriage Law, 1870; G.
IV................... . force in O. No. 68; Act No. 2710.
Philippine
Islands.
Title 6. Paternity and Slightly Code of Civil Procedure.
V................... filiation. modif ied.
Title 7. Support In force
VI...................
Title 8. Parental authority Modified Do.
VII................... (with regard to persons
and property
ofchildren).
9. Adoption Repealed Do.
Title 10. Absence Modified Do.
VIII...................
Title 11. Guardianship … Repealed Do.
IX...................
Title 12. Family council. do Do.
X...................
Title 13. Emancipation and Modified.. Code of Civil Procedure; Act
XI................... majority. No. 1891.
Title 14. Registry of civil Never in See G. O. No. 68 and Act No.
XII................... status. force in 2711.
Philippine
Islands
BOOK II.
Title I- 15. Property, Slightly Code of Civil Procedure.
III................... ownership, and its modified.
modifications.
231
VOL. 41, NOVEMBER 29, 1920. 231

In re Shoop.
CASES UNDER AMERICAN DERIVED STATUTES.
It thus . appears that the bulk of present day Statute Law is

derivative from Anglo-American sources; derivative within the
sense of having been copied, and in the sense of having been
enacted by Congress or by virtue of its authority. This court has
repeatedly held that in dealing with the cases which arise under such
statute law
_________________
Book and Subjects. Status.. By what law affected.

title.
Title IV 16. Special properties. Modified Act No. 2152; Act of
… Congress, July 1, 1902.
Title V 17. Possession Slightly Code of Civil Procedure.
modified.
Title VI 18. Usufruct do Do.
19. Use and habitation. In force Do.
Title VII 20. Easements do
…
Title VIII 21. Register of deeds. Largely Mortgage Law; Act Nos. 496
…… modified. and 2711.
Book and Subjects. Status.. By what law affected.
title.
BOOK
III.
Title I… 22. Occupancy— In force
..
Title II 23. Donations Slightly Act No. 496.
modified.
Title III 24. Wills Mostly Code of Civil Procedure.
repealed
25. Inheritance ..… Slightly Do.
modified.
26. Executors Repealed Do.
27. Intestate succession, Slightly Do.
modified.
28. Property subject to rever In Do.
forcesion.
29. Accretion (in do Do.
succession).
30. Acceptance and Mostly Do.
repudiation inheritance. repealed of
31. Collation Slightly Do.
modified.
BOOK
IV.
Title I 32. Partition Modified Do.
33. Obligations ... Slightly Do.
modified.
232

In re Shoop.
the court will be governed by the Anglo-American cases in

construction and application. (U. S. vs. De Guzman, 30 Phil., 416, at
p. 419; U. S. vs. Cuna, 12 Phil., 241; Cerezo vs. Atlantic, Gulf &
Pacific Co., 33 Phil., 245, 428, 429.)
_________________
Book Subjects. Status. By what law

and affected.
title.
Title 34. Contracts (including also dowry, parap Slightly Code of Civil
II and hernal property, conjugal property, separation modified. Procedure.
III. of property of spouses).
Title 35. Purchase and sale, and barter. do Do.
IV
and V
…
Title 36. Lease do Do.
VI
37. Laborcontracts. In force.
…
38. Carriers. … … do
Title 39. Censos do
VII
Title 40. Partnership... do…
VIII
Title 41. Agency do
lX…
Title 42. Loans do
X
Title 43. Bailments .... do
XI
44. Sequestration … Repealed Do.
Book Subjects. Status. By what law
and affected.
title.
Title 45. Insurance . . . … Modified Act No. 2427.
XII
46. Gambling Repealed Act No. 1757.
47. Life annuities In force
Title 48. Compromise … do
XIII
49. Arbitration Repealed Code of Civil
Procedure.
Title 50. Suretyship In force Do.
XIV
Title 51. Pledge Modified Act No. 1508.
XV
52. Mortgage do Mortgage Law; Act
No. 496; Code of
Civil Procedure.
53. Antichresis In force.
…
Title 54. Quasi - contracts. do
XVI
55. Torts … do
Title 56. Preference credit. of Act No. 1956.
XVII Mostly
. repealed
Title 57. Prescription … … do Code of Civil
XVIII Procedure.
233
VOL. 41, NOVEMBER 29, 1920 233

In re Shoop.
To illustrate more clearly the scope of the use of AngloAmerican

cases in this connection, a brief analysis of some of the more recent
decisions of this court 1is advisable. For convenience the cases will
be taken up in the note by subjects. In all of them, Anglo-American
decisions and
________________
1. POLITICAL LAW.
The political and constitutional law of the Spanish sovereignty was entirely
abrogated by the change of sovereignty.
2. CONSTITUTIONAL AND FEDERAL LAWS.
Rubi vs. Provincial Board of Mindoro, 39 Phil., 660,

Villavicencio vs. Lukban, 39 Phil., 778.
Tan Te vs. Bell, 27 Phil., 354.
3. POLICE POWER.
The police powers of the Government of the Philippine Islands and its
political subdivisions are covered by the rules of American law.
U. S. vs. Pompeya, 31 Phil., 245.
4. STATUTORY CONSTRUCTION.
In re Will of Riosa, 39 Phil., 23, at p. 28. Statutes are presumed not to be

retrospective.
In re McCulloch Dick, 38 Phil., 41.

The implication in a statute is a part of it (page 90).
U. S. vs. Pineda, 37 Phil., 456, at pp. 462 to 465.
Interpretation of the word "fraudulent" in the pharmacy law. This also

includes a special theory of negligence.
U. S. vs. Bustos, 37 Phil., 731, at p. 740.
In referring to the Philippine Bill of Rights, the court says:

"The language carries with it all the applicable jurisprudence of great
English and American constitutional cases."
H. E. Heacock Co. vs. Collector of Customs, 37 Phil., 970, pp. 978, 980.
Application of tariff law.
U. S. vs. Soliman, 36 Phil., 5, p. 10.

U. S. vs. Palacio, 33 Phil., 208, at p. 216.
Repeals by implication are not favored.
234

In re Shoop.
authorities are used and relied upon to a greater or less degree.

Although in many cases the use is by way of
__________________
5. JUDICIARY.
Anuran vs. Aquino and Ortiz, 38 Phil., 29, at p. 35.
The Philippine Judiciary system is substantially modelled upon English and

American prototypes.
U. S. vs. Blanco, 37 Phil., 126, at p. 218.
The court will take judicial notice of municipal ordinances on appeals from a
municipal court.
Lino Luna vs. Rodriguez, 37 Phil., 186, at pp. 189-194.

Dizon vs. Moir, 36 Phil., 759, p. 761.
In re Kelly, 35 Phil., 944, at p. 950.
Power of court to punish for contempt.
Zarate vs. Director of Lands, 39 Phil., 747, at p. 749.
Principle of "Law of the Case" recognized.
Aquino vs. Director of Lands, 39 Phil., 850, at p. 861.
. Res Adjudicata and Stare Decisis.
6. CIVIL PROCEDURE AND PLEADING.
Javellana vs. Mirasol and Nuñez, 40 Phil., 761, at p. 772.

Leung Ben vs. O'Brien, 38 Phil., 182, at p. 189.
"The Code of Civil Procedure * * * speaks the language of the common-law

and for the most part reflects its ideas."
Ramirez vs. Orientalist Co. and Fernandez, 38 Phil., 634, at pp. 642-644.
Rules of pleadings.
Banco Español-Filipino vs. Palanca, 37 Phil., 921, at p. 931.
Judgment upon constructive or substituted service against a non-resident is

invalid.
"The doctrine established by the Supreme Court of the United States on this
point, being based upon the constitutional conception of due process of law,
is binding upon the courts of the Philippine Islands." (Page 932.)
Mortera and Eceiza vs. West of Scotland etc., 36 Phil., 994.
7. CRIMINAL PROCEDURE.
U. S. vs. Lahoylahoy and Madanlog, 38 Phil., 330.

U. S. vs. Bagsic, 35 Phil., 327, at p. 336. See also—
U. S. vs. Balaba, 37 Phil., 260, at p. 268.
Re inclusion of several offenses in one information on the ground that this

jurisdiction is not bound, since jury trials do not exist here. The court
declines to follow certain English and American cases but it goes on to point
out that the American practice is not uniform.
235
VOL. 41, NOVEMBER 29, 1920. 235

In re Shoop.
dictum, nevertheless, the net result is the building up of a very

substantial elaboration of Anglo-American case law.
______________
8. EMPLOYERS' LIABILITY LAW.
Tamayo vs. Gsell, 35 Phil., 953, at pp. 966 to 986.

Cerezo vs. Atlantic, Gulf & Pacific Co., 33 Phil., 425, at pp. 428-443.
9. TORRENS SYSTEM—REAL ESTATE TITLES.
De los Reyes vs. Razon, 38 Phil., 480.
Registered titles are conclusive and binding upon all the world. Title is
determined judicially by action in rem.
Aitken vs. La O, 36 Phil., 510, at p. 516.

De la Cruz vs. Fabie, 35 Phil., 144, at p. 166 et seq.
Franciscan Corp. vs. Archbishop of Manila, 35 Phil., 295.
Referring to title by equitable estoppel.
10. INSURANCE LAW.
Harding vs. Commercial Union Assurance Co., 38 Phil., 464, at p. 471 et seq.
Insurable interest.
Young vs. Midland Textile Insurance Co., 30 Phil., 617.
Interpretation of insurance contract, and effect of increase of risk.
11. LIBEL.
U. S. vs. Cañete, 38 Phil., at pp. 253, 260.
Privileged communications.
The Libel Law is supplemented by the "fundamental law of the land" as
incorporated in the Philippine Bill of Rights.
U. S. vs. Bustos, 37 Phil., 731, at p. 742.
Privileged communications and malice.
U. S. vs. O'Connell, 37 Phil., 767, at pp. 772, 774.
Innuendo may be libel.
12. UNFAIR COMPETITION AND TRADE MARKS.
Ubeda vs. Zialcita, 226 U. S., 452; 40 Phil., 1109.
The rule that under Act No. 666, an infringing plaintiff cannot have relief
against another infringer.
Clarke vs. Manila Candy Co., 36 Phil., 100, at p. 111.
"* * * Our own statute, Act No. 666, is in itself a clear recognition of the
more modern attitude of the law-maker with relation to these practices. Mr.
Justice Holmes said, twenty-five years ago: 'The law has got to be stated over
again. And I venture to say that in fifty ' years we shall have it in a form of
which no one could have dreamed fifty years ago.' Our statute crystallizing as
it does the more modern view as to what the law should be
236

In re Shoop.
From the foregoing selection of the more recent and typical cases, it
appears how broad is the scope of the use of Anglo-American
authorities and precedents in the field
________________
12. UNFAIR COMPETITION AND TRADE MARKS—Continued. on this

subject, is a striking realization of that prophecy."
The court goes on to cite American authorities with reference to the

definition of unfair competition.
Alhambra Cigar, etc., Co. vs. Compañía General de Tabacos, 35 Phil., 62, at
p. 73.
Application of the rule respecting similarity calculated to deceive.
13. NEGOTIABLE INSTRUMENTS.
Green vs. Lopez, 36 Phil., 1.
Right of a holder for value.
U. S. vs. Solito, 36 Phil., 785, at p. 788.
Effect of alteration of check.
14. INSOLVENCY LAW.
Mitsui Bussan Kaisha vs. Hongkong & Shanghai Banking Corp., 36 Phil.,
27, at pp: 37, 38, and 42.
"The legislative history of that part of Act 1956, which deals with voluntary
and involuntary insolvency, and which is essentially a bankruptcy law,
clearly shows that the legislature intended to establish in this jurisdiction the
essential features of the American system. of bankruptcy. This being true we
may look to the decisions of the Supreme Court of the United States for
guidance in determining the extent of the title to the insolvent's estate which
is vested in the assignee by the clerk's assignment." (P. 41.)
15. MARRIAGE AND DIVORCE.
Viña vs. Villareal, 41 Phil., 13.
In divorce cases neither old nor new statutes covered the question, and the
court relies on American cases for the rule that a wife can obtain separate
domicile for the purpose of divorce.
Siman vs. Leus and Leus, 37 Phil., 967.
Consideration of the Civil Code, and Code of Civil Procedure and the
Marriage Law for the purpose of construing them together.
Goitia vs. Campos Rueda, 35 Phil., 252, at pp. 254, 260.
General Orders No. 68 govern the solemnities required for the marriage
contract. The law of marriage under the Civil Code as in force in Spain at the
time of American occupation, is not in force in these Islands.
237
VOL. 41, NOVEMBER 29, 1920. 237

In re Shoop.
of law subjects affected by American derived legislation. In the

application of those statute? in the many cases which come before
the court, there is bound to be developed a
_________________
16, USURY.
U. S. vs. Constantino Tan Quingco Chua, 39 Phil., 552, at pp. 555, 559.
The court holds that the Philippine statute on the subject:

"* * * is a drastic law following in many respects the most advanced
American. legislation," * * * and refers to American and English cases,
analyzing the offense of usury.
17. CORPORATIONS.
Government of P. I. vs. Philippine Sugar Estates Dev. Co., 38 Phil., 15, at pp.
26 and 27.
Quo warranto as applied to corporations.
Ramirez vs. Orientalist Co., and Fernandez, 38 Phil., 634, at pp. 644, 654.
Defense of lack of authority of officer considered. Contracts must be made

by directors and not by stockholders.
Velasco vs. Poizat, 37 Phil., 802, at p. 805 et seq.
Rights and liabilities under stock subscription.
Viuda e Hijos de Pedro P. Roxas vs. Rafferty, 37 Phil., 957, at p. 965.
The court holds American authorities to be controlling for the proposition

that municipal corporation is liable for interest upon illegally collected taxes.
18. EVIDENCE.
U S. vs. Agatea, 40 Phil., 596; at p. 600.
Ruling Case Law cited for conclusion with reference to the admissibility of
extrajudicial confessions.
Ed. A. Keller & Co. vs. Ellerman & Bucknall Steamship Co. and Collector of
Customs, 38 Phil., 514.
The court cites American cases for the proposition that a single objection to a
line of evidence is sufficient (p. 619); and for the rule that a judgment of
conviction cannot be admitted in evidence in a civil suit. ld Phil.
Henry W. Peabody & Co. vs. Bromfield & Ross, 38 Phil., 841, p. 854.
Parol Evidence Rule.
U. S. vs. Razon & Tayag, 37 Phil., 856.

U.S. vs. Virrey, 37 Phil., 618, at pp. 624-5
Leung Yee vs. F. L. Strong Machinery Co. and Williamson, 37 Phil., 644, pp.
651, 652.
238

In re Shoop.
substantial common law. There is no question that this exists. We are

merely concerned with its extent and source.
CASES UNDER SPANISH STATUTES.
In addition to the subjects covered above, there is a wide field of use

of Anglo-American cases in the interpretation and application of the
remnants of the Spanish statutes. Such is of even greater importance
in showing the real permanency of the hold which Anglo-American
Common Law has fastened upon the jurisprudence of this
jurisdiction. An analysis of the cases, particularly those of the later
years, justifies completely the well-expressed opinion of former
Attorney-General Araneta quoted below:
________________
18. EVIDENCE—Continued.
U. S. vs. Antipolo, 37 Phil., 726.
Competency of witnesses.
Canuto vs. Mariano, 37 Phil., 840.

Asencio vs. Bautista, 36 Phil., 470.
U. S. vs. Sy Toon, 36 Phil., 736.
Cuyugan vs. Santos, 34 Phil., 100.
In this case the court considers the parol evidence rule with reference to the
admission of evidence to alter, vary, or defeat the terms of a written deed. On
page 106 and following the court observes that the Code of Civil Procedure
is based upon American laws, and analyzes it with the help of extensive
reference to American cases. It then considers whether or not under the
Spanish law there is any reason why the courts of these Islands should not
have power to enforce the equitable doctrine of the English and American
cases. The court quotes a broad equitable rule of the Partidas: "No man may
wrongfully enrich himself at the expense of another," and concludes that the
elementary and basic principles of the Civil Code in the absence of express
statutory prohibition permits the application of the equitable doctrine
announced by the English and American cases. (Followed in Villa vs.
Santiago, 38 Phil., 157, p. 162.)
19. ARREST.
U. S. vs. Santos, 36 Phil., 853.
The court says (page 854) : "The powers of peace officers in the Philippines,
generally stated, are the same as those conferred upon constables under the
AngloAmerican Common Law."
239
VOL. 41, NOVEMBER 29, 1920. 239

In re Shoop.
"We cannot say with certainty that the courts of the Philippine
Islands will, in the absence of a statute, be guided by the common
law. It has been said that the common law is expanded slowly and
carefully by judicial decisions based on a standard of justice derived
from the habits, customs, and thoughts of a people, and by this
standard doubtful cases are determined; that the office of the judge is
not to make the common law but to find it, and when it is found to
affix to it his official mark by which it becomes more certainly
known and authenticated. The announcement of the law comes from
the courts after they have had the benefit of the learning of counsel,
which to be comprehensive and useful must embrace a knowledge of
the people and their customs, as well as a knowledge of the
principles established by prior decisions. It is, therefore, reasonable
to assume that the courts of the Philippine Islands in cases not
controlled by statute will lay down principles in keeping with the
common law, unless the habits, customs, and thoughts of the people
of these Islands are deemed to be so different from the habits,
customs, and thoughts of the people of England and the United
States that said principles may not be applied here." (4 Op. Atty.-
Gen. P. I., 510, 511.)
To illustrate the scope of the use of Anglo-American cases1 in
connection with the remaining Spanish statutes, a brief analysis of
the more recent cases under a few
___________________
1 1. CONTRACTS.
In construing the application of the rules affecting contracts this court has frequently resorted to
American cases or American principles for its authority, although the general subject of
contracts is still largely governed by the provisions of the - Civil Code. It would be fair to say
that the law of contracts has been as little affected by new legislation as any other subject:
Hanlon vs. Haussermann and Beam, 40 Phil., 796; at p. 825.
Time essence of contract.—Question whether or not contract between an engineer and a mining company
providing for the rehabilitation of the company's property was a joint adventure and created a fiduciary
relationship. The court says on page 816.
240

In re Shoop.
of the principal subjects, will be appropriate. Frequently in these

cases reference to Anglo-American precedents is for the purpose of
showing that Spanish law and the
________________
1. CONTRACTS—Continued.
All parts of contract must be construed together.—"We have no criticism to make against this salutary
doctrine when properly applied, and would be slow to assume that our civil law requires any less degree
of good faith between parties so circumstanced than is required by the court of equity in other countries."
The court thereafter cites American cases but no Spanish cases. On the question of time being of the
essence of the contract, the court (on page 823) says:
"* * * To illustrate: The rule has been firmly established from an early date in courts of equity that in
agreements for the sale of land, time is not ordinarily of the essence of the contract; that is to say, acts
which one of the parties has stipulated to perform on a given date may be performed at a later date."
(Citing from American cases and authors on various ramifications of this principle.)
U. S. vs. Varadero de la Quinta, 40 Phil., 48.
Impossibility of performance.—The court considers the defense of impossibility of performance of a

contract, and relies exclusively on English and American cases; and concludes:
"From these authorities and facts we can reach no other conclusion than that since impossibility of
performance was not known to both parties at the time of making the contract, since performance has not
been prevented by the acts of the United States, since the contract related to nothing which was unlawful,
and since the modificatory rules growing out of war conditions did not affect the same, the contractor and
his guarantors are not excused from the consequences of non-performance." (p. 58.)
Cruz vs. Alberto, 39 Phil., 991.
Consideration and mutuality.—The court, in passing upon the interpretation of a lease, alleged to contain
an agreement for extension of the term, cites, on page 995, R. C. L. and Cyc., with reference to
consideration and mutuality, and the presumptions with reference thereto. No reference is made to Spanish
cases.
Allen vs. Province of Tayabas, 38 Phil., 356, pp. 362 and 364.
Requirements of certificates of approval subject to rule
241
VOL. 41, NOVEMBER 29, 1920. 241

In re Shoop.
Anglo-American law is the same, and frequently it is for the purpose

of amplifying or extending the Spanish statutes. In most cases it is
for the purpose of applying those
_______________
of reasonableness.—The court, in holding a contract, providing for the approval of

performance by the certificate of a third party, binding in the absence of a showing of fraud,
cites liberally Federal and State cases. And in the midst of these citations, on page 362, makes
the following observation:
"The old common law rule required a strict or literal performance of contracts. The modern
rule sanctions a substantial performance of contractual relations. The law now looks to the
spirit of the contract and not to its letter. Even though a plaintiff is not entirely free from fault
or omission, the courts will not turn him away if he has in good faith made substantial
performance. * * * But when the terms, or the nature of the contract, or the circumstances are
such as to make it doubtful whether the contractor has made any such unwise agreement, the
courts will ordinarily construe the contract as an 'agreement to do the thing in such a way as
reasonably ought to satisfy the defendant.' (Parlin & Orendorff Co. vs. City of Greenville
[1904], 127 Fed., 55; Swain vs. Seamens [1870], 9 Wall., 254.)"
Arbitration agreements.—Again on page 364, referring to an arbitration clause in the

agreement, the court says:
"The New York theory of refusal to uphold such agreements, because of the opinion that
they violate the spirit of the laws creating the courts, is hardly agreed to by more progressive
jurisdictions. (See U. S. Asphalt Refining Co. vs. Trinidad Lake Petroleum Co. [1915], 222
Fed., 1006.)"
The provisions of the Civil Code are not even referred to in the opinion.
De la Cruz vs. Capinpin and Albea, 38 Phil., 492, p. 497.
Contract annulled for misrepresentations inducing signature.—"It may be proved by parol

evidence that a contract was fraudulently misread to one not able to read, and that he was thus
induced to give his signature, and when such facts are fully established the contract should be
annulled and set aside. (McKessons vs. Sherman, 51 Wis., 303; Kranich vs. Sherwood, 92
Mich., 397.)" Only authority cited for the decision.
242

In re Shoop.
statutes to the particular case before the court; but whatever the use,
the fact remains that through the influence of these cases a broad
exposition of American case law is made.
_________________
Uy Soo Lim vs. Tan Unchuan, 38 Phil., 552.
Right of infant to disaffirm; obligation to return consideration.—Right of infant to disaffirm his

contract upon reaching maturity; minor must act promptly in exercising his election in the
matter. Obligations of such minor to return the consideration upon the rescission of a contract:
the court cites American cases (p. 567-572). No Spanish cases referred to. Provisions of Civil
Code quoted (p. 570).
Ollendorff vs. Abrahamson, 38 Phil., 585.
Negative covenant by employee in employment contract; public policy.—Construction of a

contract whereby an employee agreed to refrain for a given time, from engaging in competitive
business. "Public order" of the Civil Code is the same as "public policy" of the Anglo-
American law. Quoting from and citing U. S. Supreme Court cases, this court said:
"Following this opinion, we adopt the modern rule that the validity of restraints upon trade
or employment is to be determined by the intrinsic reasonableness of the restrictions, in each
case, rather than by any fixed rule, and that such restrictions may be upheld when not contrary
to the public welfare and not greater than is necessary to afford a fair and reasonable protection
to the party in whose favor it is imposed." (Page 592.)
Thereafter the court cites Cyc. and U. S. and English cases at some length. There is no
reference to a Spanish case in this decision, and the only reference beyond that of the language
of the Civil Code are the general statements of Manresa's Commentaries. (Followed in G.
Martini, Ltd., vs. Glaiserman, 39 Phil., 120.)
Behn, Meyer & Co. vs. Yangco, 38 Phil., 602.
Substantial breach; terms of sale.—With reference to the proper construction as to the place
and time of delivery under contract of sale, the court cites freely American writers and
American and English cases; but no Spanish cases.
Manila Railroad Co. vs. Compañía Trasatlantica and Atlantic, Gulf and Pacific Co., 38 Phil.,
875.
Obligations under contract of carriage.—The court, in citing generally the obligations of

the carrier under a
243
VOL. 41, NOVEMBER 29, 1920. 243

In re Shoop.
The last group of recent cases, which are but typical of many others
in the Reports, illustrates clearly the fact that Anglo-American case
law plays a very great part in amplifying and applying the law on
those subjects which
_________________
contract of carriage, and in construing the responsibilities of the carrier, and the validity of a
provision limiting liability, cites various articles of the Civil Code and quotes from Manresa,
and at the same time quotes from English and American cases; and, on page 892, after
concluding a quotation from an English case, says:
"Though. not stated in so many words, this decision recognizes that from the mere fact that
a person takes the property of another into his possession and control there arises an obligation
in the nature of an assumpsit that he will use due care with respect thereto. This must be
considered a principle of universal jurisprudence, for it is consonant with justice and common
sense, and, as we have already seen, harmonizes with the doctrine above deduced from the
provisions of the Civil Code."
Negligence ex contractu.—In reference to the article of the Civil Code and Manresa's
comments thereon, the court construes his general observations with reference to negligence. In
applying these generalities the court includes a quotation from Manresa, reference to two
Spanish cases, but the court does not analyze nor quote from those cases, as it has done with
the American and English cases.
Songco vs. Sellner, 37 Phil., 254.
Voidability for misrepresentation.—The court, in considering whether or not the sale was
voidable for misrepresentation of opinion as to the subject-matter, cites freely from American
cases and makes no reference either to the Civil Code or Spanish decisions.
Matute vs. Cheong Boo, 37 Phil., 372.
Specific performance re chattels.—This case involves the principle of specific performance

of a contract for the sale of chattels. The court refers to a former rule of the Code of Commerce,
superseded by the Code of Civil Procedure, but holds that the principle of the right of a plaintiff
seller to deposit in the court, still exists, and that,. therefore, under equity rule of the American
and English courts, to which it refers at length, the court by virtue of its control of the chattel
can compel the
244

In re Shoop.
are still governed by the remaining portions of the Spanish statutes.

The foregoing two groups of cases in combination, those under
the subjects covered by Spanish statutes and those
_______________
transfer. This case is an interesting illustration of the amalgam of the principles of the two
systems of law.
Allen vs. Provinces of Albay and Ambos Camarines, 35 Phil., 826.
Waiver; penalty clause.—Questions considered, whether or not the definite time for
performance has been waived by the other, and the effect of a liquidated damage clause in the
contract. The court cites exclusively American cases, it holding that penalty clause is not
enforceable where performance has been prevented or waived by the complaining party. (See
also dissenting opinion relying on American cases.)
Macondray & Co. vs. Sellner, 33 Phil., 370.
Brokerage market value; reasonable time to perform.—In passing upon the question of
when a real estate commission is earned, and of what is time for performance, in absence of
express stipulation, the court cites State and Federal authorities.
Centenera vs. Garcia Palicio, 29 Phil., 470.
Relief for mutual mistake.—Question of whether or not relief should be granted for mutual
mistake as to the contents of a written contract setting forth the terms of an oral contract
previously entered into. On pages 478 to 486 the court discusses the law on the point, and
quotes and cites profusely from American authors and cases. No reference is made to the Civil
Code nor to Spanish cases.
Leung Ben vs. O'Brien, 38 Phil., 182.
Contracts implied in law; quasi-contracts.—Case to recover a sum of money lost at play.

The court says with reference to the Code of Civil Procedure: "It therefore speaks the language
of the common law and for the most part reflects its ideas" * * * and then proceeds to a lengthy
review of the English Common Law theories of contract. The court finds an implied contract by
operation of law to return money won at gambling: "It is thus seen that the provisions 'of the
Civil Code which might be consulted with a view to the correct theoretical classification of this
obligation are unsatisfactory and confus
245
VOL. 41, NOVEMBER 29, 1920 245

In re Shoop.
under the subjects covered by American-Philippine legislation and

effected by the change of sovereignty, show conclusively that
Anglo-American case law has entered practically every one of the
leading subjects in the field of
________________
ing." (Page 195.) "We believe that it could, without violence of the doctrines of the Civil Law,
be held that such obligation is an innominate quasi-contract." (Page 196.) The authorities cited,
however, are English and American.
Daywalt vs. Corporación de PP. Agustinos Recoletos, 39 Phil., 587.
Interference by third parties in performance.—Action for damages for interference with the
performance of a contract between the plaintiff and another. The court goes at great length. (pp.
596—601) into the development of the English and American cases since Lumley vs. Gye.
Unfortunately, the court does not definitely adopt the principle as it denies relief on another
ground. However, the case is interesting in showing how the doctrines of the Common Law
have been expounded in the Philippine cases.
Uy Tam and Uy Yet vs. Leonard, 30 Phil., 471.
Contracts for the benefit of a third party.—A material man sought to enforce liability on a
contractor's bond to the city of Manila. The court goes at length into the development of the
principles of law with reference to this type of contract, and observes that the old Roman Civil
Law was contrary to the English Common Law, but concludes that the rule under the Civil
Code is akin to the New York doctrine announced by Lawrence vs. Fox and the American cases
following it. (Page 489, et seq.)
Gilchrist vs. Cuddy, 29 Phil., 542.
Injunction against interference with the contract rights of plaintiff with third party, relies
exclusively on English and American cases.
2. CRIMES.
Crimes are governed chiefly by the Spanish Penal Code. Nevertheless, in the application of the
provisions of that Code, American and English authorities are referred to liberally—in some
cases as corroborative of the code provisions, and in many cases as furnishing a more accurate
analysis.
The cases under Contracts and Crimes are particularly typical of the manner in which
Anglo-American case law creeps
246

In re Shoop.
law, and in the large majority of such subjects has formed the sole
basis for the guidance of this court in developing the local
jurisprudence. The practical result is that the past twenty years have
developed a Philippine Common
________________
2. CRIMES—Continued.
into the judicial precedents of this court. The following are a few of the recent cases:
U. S. vs. Aviado, 38 Phil., 10, at pp. 13, 14.
Justifiable homicide.—The rule of justifiable homicide in the defense of another is referred

to first as established by English and American cases, and thereafter the general language of the
Penal Code is cited.
U. S. vs. Domen, 37 Phil., 57, at pp. 59, 60.
In a case of justifiable homicide, the court, without refering to the Penal Code, refers to the
common law rule denominated "Retreat to the wall," and observes: "This principle has now
given way in the United States to the 'Stand ground when in the right' rule" and cites American
cases, and holds that the homicide in question was justified under the rule of the United States
cases cited.
U. S. vs. Abiog and Abiog, 37 Phil., 137, at pp. 141, 143.
Homicide.—On the question of whether or not a person, who inflicts a blow which would
otherwise be mortal upon a dying person is guilty of homicide, the court analyzes the American
cases without reference to the Penal Code.
U. S. vs. Guendia, 37 Phil., 337.
Insane—at court's discretion to try or commit.—The defendant was found to be insane and,
therefore, exempt from criminal, liability under the Penal Code. Objection was made that in
view of the insanity it was improper to try the defendant, and the court examines at length
English and American authority and concludes it is within the court's discretion to make a
preliminary investigation, and to permit the trial to proceed.
U. S. vs. Rubal, 37 Phil., 577, at p. 580.
Malicious prosecution.—On the incidental question of what constitutes the crime, the court
said: "What is here termed the crime of false accusation or complaint (Penal Code) is
practically identical with the crime of malicious prosecution as known to the Anglo-American
law."
Buchanan vs. Viuda de Esteban, 32 Phil., 363.
An action for malicious prosecution. The court cites two U. S. Supreme Court cases and one
Spanish Supreme Court case.
247
VOL. 41, NOVEMBER 29, 1920. 247
In re Shoop.
Law or case law based almost exclusively, except where conflicting

with. local customs and institutions, upon AngloAmerican Common
Law. The Philippine Common Law supplements and amplifies our
statute law.
________________
2. CRIMES—Continued.
"The Philippine law does not differ in any substantial feature from the American law on this
subject." (Page 366.) "Under the Spanish law the element of probable cause was not treated
separately from that of malice, as under the American law." (Page 367.)
U. S. vs. Albao, 29 Phil., 86, at pp. 107, 108.
Elements of robbery.—The court cites American and English authorities for a fuller
definition of the crime of robbery.
U. S. vs. Sotelo, 28 Phil., 147.
Estafa.—Case of estafa, which is governed by the Penal Code. The court, in applying the
rules of the Civil Code regarding divesting a person of his property without his consent, cites
American cases and sets forth the two exceptions to the general rule, coming under the head of
negotiable paper and estoppel, which go further than the Code exception.
U. S. vs. Suan, 27 Phil., 12.
Application of rules on crime of seduction.—Crime of seduction. The court quotes from

Viada to the effect that good reputation of the woman is an essential element; thereupon the
court cites at length from the American authorities that chastity is an essential element. The
Penal Code uses the word "virgin." The court repudiates the definition of Viada in concluding
(page 17) after citing American authorities:
"The authorities seem unanimous that prior absolute chastity on the part of the woman is an
essential element of the crime of seduction, expressly so when made a requisite by the express
words of the statute. As we have seen from the authorities cited above, the reputation of the
woman is not the test; it is a matter of physical condition, of past conduct, of actual purity."
3. EQUITY.
' The court has sometimes said (Cuyugan vs. Santos, 34 Phil, 100 at p. 116; Repide vs. Afzelius,
39 Phil., 190, at p. 195) 100 this court does not have an equity jurisdiction. Nevertheless
principles of equity are in force and are repeatedly applied. The Code of Civil Procedure is a
fulcrum on which
248

In re Shoop.
COLLATERAL INFLUENCES.
This conclusion is further justified by the practical situation which

has surrounded the Bench and Bar of the Philippine Islands for
many years and which there is every reason to believe will continue
unabated in the future.
________________
3. EQUITY—Continued.
Anglo-American principles of law are being forced into our jurisprudence.
Philippine Sugar Estates Dev. Co., Ltd., vs. Government of P. I., 62 Law Ed. (U. S.), 1177.
Reformation for mutual mistake.—In reversing this court, the United States Supreme Court
has authoritatively said: "Here the construction adopted was rested upon a clearly erroneous
assumption as to an established rule of equity. The Supreme Court erred in refusing to consider
the evidence of mutual mistake, and its judgment must be reversed."
Hanlon vs. Haussermann and Beam, 40 Phil., 796.
"Under the doctrine" of American authorities the court denies the right of specific
performance where default exists and time is of the essence. (Page 825.)
San Miguel Brewery vs. Law Union and Rock Insurance Co., 40 Phil., 674.
In passing upon right to reformation of a contract to correct a mistake, after citing American
cases, the court denies relief because the evidence is insufficient.
De la Cruz vs. Capinpin and Albea, 38 Phil., 492.
Annulment of contract procured through fraud.—The court cites American cases in support
of the rule that a contract executed through fraud may be annulled.
Enage vs. Vda. e Hijos de F. Escaño, 38 Phil., 657.
The court, in applying certain provisions of the Code of Civil Procedure, with reference to
the right to redeem under contract held to be a mortgage, says (page 664) : "It is true that there
are many of the earlier decisions of the American courts which hold that redemption statutes,
being in derogation of the Common Law, must be strictly construed. The modern tendency,
however, is to give a liberal construction to such statutes * * *." The court quotes with approval
from an Illinois case, and adopts the rule of liberal construction.
Franciscan Corporation vs. Archbishop of Manila, 35 Phil., 295.
249
VOL. 41, NOVEMBER 29, 1920. 249

In re Shoop.
This court has, in an increasing degree during the past twenty years,
cited and quoted from Anglo-American cases and authorities in its
decisions. The following analysis of the citations of the last twenty
volumes of the Philippine Reports show this graphically.
________________
3. EQUITY—Continued.
Equitable estoppel.—The court, in support of the prin-ciple of law, that no one may validly
repudiate his own acts, cites and quotes American authorities with reference to equitable
estoppel. There is no reference to the codes in this connection.
4. SURETYSHIP—GUARANTY.
U. S. vs. Varadero de la Quinta, 40 Phil., 48.
Guarantor's liability is secondary.—The court cites American authorities for the proposition
that "The obligation of the surety is primary; the obligation of the guarantor is secondary;" and
modifies the judgment of the lower court as to eliminate so much of it as to make the guarantor
liable as principal.
La Insular vs. Machuca Go-Tauco and Nubla Co-Siong, 39 Phil., 567.
Variation of obligation.—On page 570 the court says: "The rule is settled that the obligation
of the surety cannot be extended by implication beyond its specified limits. Article 1827 of the
Civil Code so declared (Uy Aloc vs. Cho Jan Ling, 27 Phil., 427) ; and with this doctrine the
Common Law is accordant," and cites and quotes American authority for this and further
ramifications of the doctrine. The court relies exclusively on American cases for its decision
that a statute increasing the amount of tax, for the payment of which bond in question was
given, is not a variation of the obligation such as to discharge the surety. (Pages 574-576.)
Government of the Philippine Islands vs. Herrero, 38 Phil.. 410.
Obligation of suretyship strictly construed.—The court 'held, on a bare citation from Cyc.,
that a surety bond should be strictly construed; no provision of the Civil Code nor Spanish case
is referred to.
5. INJUNCTION.
Ollendorff vs. Abrahamson, 38 Phil., 585.
Negative covenants.—On page 593 the court recognizes the right to injunction on negative
covenants, and after
250

In re Shoop.
Cases cited.
Volume. U. S. Philippines. Spain. England.
20............................... 207 63 21 1
21............................... 217 127 10 3
22............................... 273 73 21 5
23............................... 211 181 18 4
24............................... 194 108 19 1
25............................... 143 98 24 2
26............................... 257 104 23
27.............................. 145 132 25 1
28............................... 145 130 24 3
29............................... 152 136 9 1
30............................... 98 85 11
31............................... 159 103 8 1
32............................... 311 176 15
33............................... 121 137 6 5
34............................... 214 163 34
35............................... 109 159 17 4
36............................... 125 217 21 2
37............................... 340 242 23 5
38............................... 161 175 19 8
39............................... 228 143 13 6
______ _______ _________ ______
3810 2,752 361 52
________________
5. INJUNCTION—Continued.
quoting from the English and American authorities and cases governing this principle, affirms
judgment enjoining the employee from violating the covenant of his contract. The court makes
no reference to any of the codes nor to any Spanish cases.
Golding vs. Balabat, 36 Phil., 941.
Trespass.—The court analyzes fully the right to injunction to prevent repeated trespass, and
cites exclusively American cases, explaining the equitable grounds upon which the right rests.
Liongson vs. Martinez, 36 Phil., 948.
Based on inadequacy of other remedy.—The court cites American authorities for the
proposition that injunction may not be used for the purpose of trying title to real
251
VOL. 41, NOVEMBER 29, 1920. 251

In re Shoop.
The American citations are over ten times as numerous as the

Spanish citations. (In Vol. 1 there were 63 Spanish to 53 United
States.) Add to this the cumulative effect of perpetuating this ratio
through the citations of Philippine cases in which American cases
have been cited, and it is obvious that Spanish decisions have had
comparatively slight effect in the development of our case law.
It is a fact of considerable practical importance that there are no
digests of Spanish decisions to aid the study of Bench and Bar. On
the other hand, the local libraries contain both digests and reports of
the Federal Courts and Supreme Court of the United States, and of
most of the State courts, and also many reports of the English courts.
Added to this is a liberal supply of English and American text
books. The foregoing not only has a natural influence on the results
of the work of the Bench, but it has a very decided influence on the
development of the present Bar of the Philippine Islands; each year
adds to the preponderance of lawyers trained chiefly from a study of
Anglo-American case law.
The fact that prolific use of Anglo-American authorities is made
in the decisions of this court, combined with the fact that the
available sources for study and reference on legal theories are
mostly Anglo-American, present a practical situation at this moment
from which this court
________________
5. INJUNCTION—Continued.
property, nor to accomplish any purpose for which an adequate remedy exists in another form.
De Ayala vs. Barretto, 33 Phil., 538.
Nuisance.—The court cites American cases to assist in analyzing what is a "nuisance."
6. SPECIFIC PERFORMANCE.
Gutierrez Repide vs. Afzelius and Afzelius, 39 Phil., 190.
Must be reciprocal.—The court considers the question of specific performance with reference to
its common law and 'civil law status. It refers to the articles of the Civil Code which provide
that the contracting parties may reciprocally demand the fulfillment of a contract, and to certain
decisions of the Supreme Court of Spain, and of this court.
252

In re Shoop.
can draw but one conclusion, namely, that there has been developed,
and will continue, a common law in the jurisprudence of this
jurisdiction (which for purposes of distinction may properly be
termed a Philippine Common Law), based upon the English
Common Law in its pres-
_________________
6. SPECIFIC PERFORMANCE—Continued.
The court then cites certain of the American cases, announcing the rules of specific
performance, mutuality of the remedy, and "Rules of equity jurisprudence."
Matute vs. Cheong Boo, 37 Phil., 372, at p. 378.
Court can compel specific performance through. control of the res.
7. NEGLIGENCE.
Cangco vs. Manila Railroad Co., 38 Phil., 768, at p. 780.
This case turns on the rule here which is Spanish and not Anglo-American that. the master is
not liable for negligence of his servant, if he has been prudent in selecting his servant, and the
situation is not ex-contractu. However, when the court considers what is negligence and
contributory negligence, it adopts the rule of an American authority.
Picart vs. Smith, 37 Phil., 809.
This case is interesting as it cites only Philippine cases. The question was whether or not the
facts in the case constituted negligence and contributory negligence. The court (on page 813)
says: "The law here in effect adopts the standard supposed to be supplied by the imaginary
conduct of a discreet pater familias of the Roman law," and then the court discusses this rule in
the language of the well-known common law doctrine of the "reasonably prudent man."
Carlos vs. Manila Electric Railroad & Light Co., 34 Phil., 55, at p. 58,
Question of negligence.—The court quotes from the general provisions of the Civil Code
providing damage when there is "fault or negligence" but not when "events could not be
foreseen." The court refers freely to Amercan cases in analyzing whether or not there was
negligence under the facts.
Mestres vs. Manila Electric R. & Light Co., 32 Phil., 496.
With reference to the rules regarding the rights of way of street cars and the responsibility of
pedestrians, as bearing on the ascertaining of what is negligence and con
253
VOL. 41, NOVEMBER 29, 1920. 253

In re Shoop.
ent day form of an Anglo-American Common Law, which common

law is effective in all of the subjects of law in this jurisdiction in so
far as it does not conflict with the express language of the written
law or with the local customs and institutions.
______________
7. NEGLIGENCE—Continued.
tributory negligence. The court cites voluminously from American cases.
U. S. vs. Barias, 23 Phil., 434.
The court had before it the question of "reckless negligence." On page 437 et seq., the court
cites American cases and authors, including Cooley on Torts for definitions of negligence and
reckless negligence. It also quotes from Spanish authors defining the same terms, but no
Spanish cases are cited.
Rakes vs. Atlantic, Gulf & Pacific Co., 7 Phil., 359.
This is one of the leading cases in this jurisdiction on the question of negligence. Action is
for injuries to workmen, but was before Employers' Liability Act, so general principles
governed. The court considers the various provisions of the Spanish Code, quotes from Spanish
authors, and observes (page 366) : "Spanish. jurisprudence, prior to the Working Men's
Accident Law of January 30, 1900, throws uncertain light upon the relation between master and
workmen * * *." The court follows the rule of liability ex contractu, and then undertakes
consideration of the effect of contributory negligence, and, not finding any satisfactory
authority, rather seems to adopt a rule of its own which is not clearly deducible from any
particular source: "Whatever may prove to be the doctrine finally adopted in Spain or in other
countries under the stress and counter-stress of novel schemes of legislation, we find the theory
of damages laid down in this judgment the most consistent with the history and the principles
of our law in these Islands and with its logical development." (Page 374.)
This was an early case. The later cases show that the court has come to rely more and more
on Anglo-American authorities for the definition of negligence and contributory negligence and
the relative effect thereof.
8. DAMAGES.
This subject is also covered in the cases dealing with contracts and torts elsewhere referred to.
The Anglo-American
254

In re Shoop.
CONCLUSIONS.
We may summarize our conclusions as follows:

(1) The Philippine Islands is an unorganized territory of the
United States, under a civil government established by the Congress.
(2) In interpreting and applying the bulk of the written laws of
this jurisdiction, and in rendering its decisions in
________________
8. DAMAGES—Continued.
theories dominate. It will be well, however, to note a few additional cases.
Compagnie Franco-Indochinoise vs. Deutsch-Australische Dampschiffs Gesellschaft, 39 Phil.,

474.
Measure; market value; penalty clauses.—Action against vessel for damages to cargo, The
court declares the measure of damages after a review of American cases and Sedgwick on
Damages. No reference is made to the Civil Code nor to Spanish authorities. In passing upon
the penalty clause in the charter party, the court observes, on page 493, that the law in force in
these Islands is more favorable to penalties than the law of England and the United States, but
that:
"This charter party is not to be construed exclusively by the law of the Philippine Islands,
nor even by the local law of the country in which it was executed. It must be considered as
governed by the general maritime law," citing with approval, English and American cases
which make the same observations.
Daywalt vs. Corporación de PP. Agustinos Recoletos, 39 Phil., 587, at p. 602.
Question of damages in connection with the breach of contract of sale of real estate; without
referring to the Civil Code, the court develops the rule by citation from American and English
cases, including Hadley vs. Baxendale, and also Sedgwick on Damages.
Cerrano vs. Tan Chuco, 38 Phil., 392, at p. 398.
Mitigation of damages.—Breach of contract of bailment. The court cites American cases for
the rule that the damages shall be mitigated by so much as could have been avoided by a
reasonably prudent plaintiff; and also cites Sedgwick on the rule that burden of proof rests upon
the defendant to show that the plaintiff might have reduced the damages. The Civil Code does
not furnish any de
255
VOL. 41, NOVEMBER 29, 1920 255

In re Shoop.
cases not covered by the letter of the written law, this court relies
upon the theories and precedents of AngloAmerican cases, subject to
the limited exception of those instances where the remnants of the
Spanish written law present well-defined civil law theories and of
the few cases where such precedents are inconsistent with local
customs and institutions.
_________________
8. DAMAGES—Continued.
finite basis for these Anglo-American refinements of the rule of damages.
Sun Life Insurance Co. of Canada vs. Rueda Hermanos & Co. and Delgado, 37 Phil., 844.
Speculative profits.—The court, on page 849, cites American cases for the proposition that
"Speculative profits are too remote to be included in an accurate estimate of damages."
Hicks vs. Manila Hotel Co., 28 Phil., 325, at pp. 338, 342, and 344.
Loss of profits; anticipatory action.—Lost profits are allowable by the Civil Code, but the
court cites American cases on question of what are allowable lost profits. It also relies
exclusively on American cases for the rule that full damages may be recovered in an
anticipatory action; and for the rule that mitigation under earning power of plaintiff must be
proved by defendant.
9. AGENCY.
Jimenez vs. Rabot, 38 Phil., 378.
Agency to sell realty.—Question of sufficiency of powerof-attorney contained in letter. The

court considers collateral requirements of Civil Code and of Code of Civil Procedure, and holds
the power in this case sufficient under American cases, although such would seem to be
questionable under the indefinite language of the Civil Code.
Behn, Meyer & Co., Ltd., vs. Nolting & Garcia, 35 Phil., 274.
Broker.—The court, in connection with taxability under the Revenue Laws, considered what
constitutes a "Real estate broker" and cites American cases, Story on Agency, and the Civil
Code.
10. WILLS.
In re Will of Riosa, 39 Phil., 23, at p. 26.
Validity of execution.—Question of the effect of the new statute regulating execution upon a
will executed prior
256

In re Shoop.
(3) The jurisprudence of this jurisdiction is based upon the English

Common Law in its present day form of AngloAmerican Common
Law to an almost exclusive extent.
(4) By virtue of the foregoing, the New York rule, given a
reasonable interpretation, permits conferring privileges on attorneys
admitted to practice in the Philippine Islands similar to those
privileges accorded by the rule of this court.
_____________
10. WILLS—Continued.
to its enactment and testator dying afterwards. The court relies upon American and English
cases for the proposition that the validity of the execution must be tested by the statute in force
at the time of its execution. No Spanish cases referred to.
11. CARRIERS.
G. Martini, Ltd., vs. Macondray & Co., 39 Phil., 934.
Bill of lading.—The court, in passing upon the liability of steamship company for damage to
cargo shipped "deck load," cites American and English cases exclusively. Neither the Civil
Code nor any Spanish cases are referred to.
Compagnie de Commerce, etc., vs. Hamburg Amerika, etc., 36 Phil., 590.
Rights and obligations under charter parties; effect of war; Maritime Law.—The court, in a
lengthy opinion, considers the effect of war upon obligations of carriers, refers to American and
English authors with reference to the rules of International Law which are applicable, and, on
page 625 et seq., cites exclusively American and English cases and authors, including,
principally, Carver on "Carriers," for the obligations under charter party generally.
12. MASTER AND SERVANT,
Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co., 33 Phil., 8.
Question whether . plaintiff was barred from recovery on the theory that negligence of a driver
of a rented automobile was imputable to him. The court rejects this theory as not consonant
with the weight of authority, and cites American cases. As to the main point of the case, the
liability of the owner of the hired car for negligence, the court relies upon interpretation of the
Civil Code rules.
257
VOL. 41, NOVEMBER 29, 1920. 257

In re Shoop.
Accordingly, the supporting papers filed by the applicant in this case

showing to the satisfaction of the court his qualifications as an
attorney-at-law, his petition is hereby granted and he is admitted to
the practice of law in the Philippine Islands. Our decision is based
upon our interpretation of the New York rule, and it does not
establish a precedent which may be controlling on this court with.
respect to future applications if our interpretation is not
________________
13. PUBLIC POLICY.
Ollendorff vs. Abrahamson', 38 Phil., 585, at p. 590.
Under the Civil Code, prohibition of agreements contrary to "law, morals, or public order." The
court interprets this to mean—the term "public policy" as used in the United States, and cites
American cases for a definition thereof.
Hibberd vs. Rohde and McMillian, 32 Phil., 476, at pp. 482-486.
The court cites exclusively American authority for the rules relating to public policy and
invalidity in regard to agreements for concealing public offenses.
14. SALVAGE.
Fernandez vs. Thompson & Co., 38 Phil., 683.
The court, in defining the rule in reference to salvage, relies exclusively upon American,
English, and Philippine authorities.
See also—
Manila Railroad Co. vs. Macondray. Co., 37 Phil., 850, and Erlanger & Galinger vs. Swedish
East-Asiatic Co., Ltd., 34 Phil., 178.
15. SALES.
Ocejo Perez & Co. vs. International Banking Corporation, 37 Phil., 631, 637.
Villa vs. Santiago, 38 Phil., 157.
The court cites American cases freely in passing upon whether or not a particular transaction
was a sale or mortgage.
16. ASSIGNMENTS.
Sison and Sison vs. Yap Tico and Avanceña, 37 Phil., 584.
Effect of recording.—The court relies upon American authorities for the rule that, if a document
is not required by law to be recorded, the recording thereof is not constructive notice. In
support of the Civil Code it cites American authorities for the rule that payment to original
creditor, before notice of assignment, is good.
258

Misut vs. West Coast San Francisco Life Insurance Co.
borne out by the future enforcement of that rule by the New York
court. So ordered.
Mapa, C. J., Johnson, Araullo, Street, Avanceña, and Villamor,

JJ., concur.
Petition granted.
_______________
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8/30/2019 PHILIPPINE REPORTS ANNOTATED VOLUME 041

[November 29, 1920.]

In re Application of MAX SHOOP for admission to practice law.

1. ADMISSION TO BAR; PARAGRAPH FOUR OF THE RULES

214 PHILIPPINE REPORTS ANNOTATED

2. ID.; ID.; ID.; PHILIPPINE ISLANDS A TERRITORY.—Under

3. ID.; ID.; ID.; PHILIPPINE COMMON LAW.—A survey of recent

jurisdiction. An analysis of two groups of recent cases—the ﬁrst,

4. ID. ; ID.; ID.; ID.—The past twenty years have developed a

5. ID.; ID.; ID.; ID.—The jurisprudence of this jurisdiction is based

VOL. 41, NOVEMBER 29, 1920. 215

this jurisdiction in so f ar as it does not conﬂict with the express

PETITION submitted to the Supreme Court for admission to the bar

Application has been made to this court by Max Shoop for

That portion of the rules of this court, in point, is as f ollows:

"Applicants for admission who have been admitted to practice in

216 PHILIPPINE REPORTS ANNOTATED

similar circumstances to attorneys admitted to practice in the

THE PHILIPPINE ISLANDS—A TERRITORY.

VOL. 41, NOVEMBER 29, 1920. 217

ganized territory" incorporated into the United States under the

the Philippine Islands is not a "foreign country." (The Diamond

218 PHILIPPINE REPORTS ANNOTATED

A COMMON LAW JURISDICTION.

But assuming that comity is not permitted under paragraph 1 of the

VOL. 41, NOVEMBER 29, 1920 219

court. It is a problem, however, upon which books could be and have

COMMON LAW IN THE UNITED STATES.

220 PHILIPPINE REPORTS ANNOTATED

"The written law of England as a constantly improving science

COMMON LAW ADOPTED BY DECISION.

The concept of a common law is the concept of a growing and ever-

VOL, 41, NOVEMBER 29, 1920. 221

and it must be recognized that due to the modern tendency toward

according to the Civil Code rules, said:

222 PHILIPPINE REPORTS ANNOTATED

"We concur with the counsel in believing that the legislature in

IN THE PHILIPPINE ISLANDS.

The extent of the English or the Anglo-American Common Law

VOL. 41, NOVEMBER 29, 1920 223

of the enactment of new laws and the organization and establishment

* * * * * * *

"And it is safe to say that in every volume of the Philippine Reports

224 PHILIPPINE REPORTS ANNOTATED

judicial systems of the United States. It cannot be doubted,

Court that—'neither English nor American Common Law is in force

VOL. 41, NOVEMBER 29, 1920. 225

PHILIPPINE STATUTE LAW.

Introductory to analyzing what Spanish written laws remain in force

226 PHILIPPINE REPORTS ANNOTATED

chief codes of Spain made effective in the Philippines were as

Penal Code 1887

In addition to these there were certain special laws having limited

VOL. 41, NOVEMBER 29, 1920. 227

In order to determine the general principles of law "judicial

resort to general principles of law, Manresa rather implies that the

228 PHILIPPINE REPORTS ANNOTATED

found necessary, in order to effect justice in particular cases, to

SPANISH STATUTE LAW.