G.R. No.

L-16439 July 20, 1961

ANTONIO GELUZ, petitioner,
vs.
THE HON. COURT OF APPEALS and OSCAR
LAZO, respondents.
Mariano H. de Joya for petitioner.
A.P. Salvador for respondents.
REYES, J.B.L., J .:
This petition for certiorari brings up for review question whether
the husband of a woman, who voluntarily procured her abortion,
could recover damages from physician who caused the same.
The litigation was commenced in the Court of First Instance of
Manila by respondent Oscar Lazo, the of Nita Villanueva, against
petitioner Antonio Geluz, a physician. Convinced of the merits of
the complaint upon the evidence adduced, the trial court rendered
judgment favor of plaintiff Lazo and against defendant Geluz,
ordering the latter to pay P3,000.00 as damages, P700.00 attorney's
fees and the costs of the suit. On appeal, Court of Appeals, in a
special division of five, sustained the award by a majority vote of
three justices as against two, who rendered a separate dissenting
opinion.
The facts are set forth in the majority opinion as follows:
Nita Villanueva came to know the defendant (Antonio
Geluz) for the first time in 1948 through her aunt
Paula Yambot. In 1950 she became pregnant by her
present husband before they were legally married.
Desiring to conceal her pregnancy from her parent, and
acting on the advice of her aunt, she had herself aborted
by the defendant. After her marriage with the plaintiff,
she again became pregnant. As she was then employed
in the Commission on Elections and her pregnancy
proved to be inconvenient, she had herself aborted
again by the defendant in October 1953. Less than two
years later, she again became pregnant. On February
21, 1955, accompanied by her sister Purificacion and
the latter's daughter Lucida, she again repaired to the
defendant's clinic on Carriedo and P. Gomez streets in
Manila, where the three met the defendant and his wife.
Nita was again aborted, of a two-month old foetus, in
consideration of the sum of fifty pesos, Philippine
currency. The plaintiff was at this time in the province
of Cagayan, campaigning for his election to the
provincial board; he did not know of, nor gave his
consent, to the abortion.
It is the third and last abortion that constitutes plaintiff's basis in
filing this action and award of damages. Upon application of the
defendant Geluz we granted certiorari.
The Court of Appeals and the trial court predicated the award of
damages in the sum of P3,000.06 upon the provisions of the initial
paragraph of Article 2206 of the Civil Code of the Philippines.
This we believe to be error, for the said article, in fixing a
minimum award of P3,000.00 for the death of a person, does not
cover the case of an unborn foetus that is not endowed with
personality. Under the system of our Civil Code, "la criatura
abortiva no alcanza la categoria de persona natural y en
consscuencia es un ser no nacido a la vida del Derecho" (Casso-
Cervera, "Diccionario de Derecho Privado", Vol. 1, p. 49), being
incapable of having rights and obligations.
Since an action for pecuniary damages on account of personal
injury or death pertains primarily to the one injured, it is easy to
see that if no action for such damages could be instituted on behalf
of the unborn child on account of the injuries it received, no such
right of action could derivatively accrue to its parents or heirs. In
fact, even if a cause of action did accrue on behalf of the unborn
child, the same was extinguished by its pre-natal death, since no
transmission to anyone can take place from on that lacked juridical
personality (or juridical capacity as distinguished from capacity to
act). It is no answer to invoke the provisional personality of a
conceived child (conceptus pro nato habetur) under Article 40 of
the Civil Code, because that same article expressly limits such
provisional personality by imposing the condition that the child
should be subsequently born alive: "provided it be born later with
the condition specified in the following article". In the present
case, there is no dispute that the child was dead when separated
from its mother's womb.
The prevailing American jurisprudence is to the same effect; and it
is generally held that recovery can not had for the death of an
unborn child (Stafford vs. Roadway Transit Co., 70 F. Supp. 555;
Dietrich vs. Northampton, 52 Am. Rep. 242; and numerous cases
collated in the editorial note, 10 ALR, (2d) 639).
This is not to say that the parents are not entitled to collect any
damages at all. But such damages must be those inflicted directly
upon them, as distinguished from the injury or violation of the
rights of the deceased, his right to life and physical integrity.
Because the parents can not expect either help, support or services
from an unborn child, they would normally be limited to moral
damages for the illegal arrest of the normal development of
the spes hominis that was the foetus, i.e., on account of distress and
anguish attendant to its loss, and the disappointment of their
parental expectations (Civ. Code Art. 2217), as well as to
exemplary damages, if the circumstances should warrant them
(Art. 2230). But in the case before us, both the trial court and the
Court of Appeals have not found any basis for an award of moral
damages, evidently because the appellee's indifference to the
previous abortions of his wife, also caused by the appellant herein,
clearly indicates that he was unconcerned with the frustration of
his parental hopes and affections. The lower court expressly found,
and the majority opinion of the Court of Appeals did not contradict
it, that the appellee was aware of the second abortion; and the
probabilities are that he was likewise aware of the first. Yet despite
the suspicious repetition of the event, he appeared to have taken no
steps to investigate or pinpoint the causes thereof, and secure the
punishment of the responsible practitioner. Even after learning of
the third abortion, the appellee does not seem to have taken interest
in the administrative and criminal cases against the appellant. His
only concern appears to have been directed at obtaining from the
doctor a large money payment, since he sued for P50,000.00
damages and P3,000.00 attorney's fees, an "indemnity" claim that,
under the circumstances of record, was clearly exaggerated.
The dissenting Justices of the Court of Appeals have aptly
remarked that:
It seems to us that the normal reaction of a husband
who righteously feels outraged by the abortion which
his wife has deliberately sought at the hands of a
physician would be highminded rather than mercenary;
and that his primary concern would be to see to it that
the medical profession was purged of an unworthy
member rather than turn his wife's indiscretion to
personal profit, and with that idea in mind to press
either the administrative or the criminal cases he had
filed, or both, instead of abandoning them in favor of a
civil action for damages of which not only he, but also
his wife, would be the beneficiaries.
It is unquestionable that the appellant's act in provoking the
abortion of appellee's wife, without medical necessity to warrant it,
was a criminal and morally reprehensible act, that can not be too
severely condemned; and the consent of the woman or that of her
husband does not excuse it. But the immorality or illegality of the
act does not justify an award of damage that, under the
circumstances on record, have no factual or legal basis.
The decision appealed from is reversed, and the complaint ordered
dismissed. Without costs.
Let a copy of this decision be furnished to the Department of
Justice and the Board of Medical Examiners for their information
and such investigation and action against the appellee Antonio
Geluz as the facts may warrant.
Bengzon, C.J., Padilla, Labrador, Barrera, Paredes, Dizon and
Natividad, JJ., concur.
Concepcion, J., took no part.
De Leon, J., took no part.
G.R. No. 11263 November 2, 1916

ELOISA GOITIA DE LA CAMARA, plaintiff-appellant,
vs.
JOSE CAMPOS RUEDA, defendant-appellee.

Eduardo Gutierrez Repide and Felix Socias for appellant.
Sanz, Opisso and Luzuriaga for appellee.



TRENT, J.:

This is an action by the wife against her husband for support
outside of the conjugal domicile. From a judgment sustaining the
defendant's demurrer upon the ground that the facts alleged in the
complaint do not state a cause of action, followed by an order
dismissing the case after the plaintiff declined to amend, the latter
appealed.

It was urged in the first instance, and the court so held, that the
defendant cannot be compelled to support the plaintiff, except in
his own house, unless it be by virtue of a judicial decree granting
her a divorce or separation from the defendant.

The parties were legally married in the city of Manila on January
7, 1915, and immediately thereafter established their residence at
115 Calle San Marcelino, where they lived together for about a
month, when the plaintiff returned to the home of her parents. The
pertinent allegations of the complaint are as follows:

That the defendant, one month after he had contracted marriage
with the plaintiff, demanded of her that she perform unchaste and
lascivious acts on his genital organs; that the plaintiff spurned the
obscene demands of the defendant and refused to perform any act
other than legal and valid cohabitation; that the defendant, since
that date had continually on other successive dates, made similar
lewd and indecorous demands on his wife, the plaintiff, who
always spurned them, which just refusals of the plaintiff
exasperated the defendant and induce him to maltreat her by word
and deed and inflict injuries upon her lips, her face and different
parts of her body; and that, as the plaintiff was unable by any
means to induce the defendant to desist from his repugnant desires
and cease from maltreating her, she was obliged to leave the
conjugal abode and take refuge in the home of her parents.

Marriage in this jurisdiction is a contract entered into in the
manner and with the solemnities established by General Orders
No. 68, in so far as its civil effects are concerned requiring the
consent of the parties. (Garcia vs. Montague, 12 Phil. Rep., 480,
citing article 1261 of Civil Code.) Upon the termination of the
marriage ceremony, a conjugal partnership is formed between the
parties. (Sy Joc Lieng vs. Encarnacion, 16 Phil. Rep., 137.) To this
extent a marriage partakes of the nature of an ordinary contract.
But it is something more than a mere contract. It is a new relation,
the rights, duties, and obligations of which rest not upon the
agreement of the parties but upon the general law which defines
and prescribes those rights, duties, and obligations .Marriage is an
institution, in the maintenance of which in its purity the public is
deeply interested. It is a relation for life and the parties cannot
terminate it at any shorter period by virtue of any contract they
may make .The reciprocal rights arising from this relation, so long
as it continues, are such as the law determines from time to time,
and none other. When the legal existence of the parties is merged
into one by marriage, the new relation is regulated and controlled
by the state or government upon principles of public policy for the
benefit of society as well as the parties. And when the object of a
marriage is defeated by rendering its continuance intolerable to one
of the parties and productive of no possible good to the
community, relief in some way should be obtainable. With these
principles to guide us, we will inquire into the status of the law
touching and governing the question under consideration.

Articles 42 to 107 of the Civil Code are not in force in the
Philippine Islands (Benedicto vs. De la Rama, 3 Phil .Rep., 34).
Articles 44 to 78 of the Law of Civil Marriage of 1870, in force in
the Peninsula, were extended to the Philippine Islands by royal
decree on April 13, 1883 (Ebreo vs. Sichon, 4 Phil. Rep., 705).
Articles 44, 45, and 48 of this law read:

ART. 44. The spouses are obliged to be faithful to each other and
to mutually assist each other.

ART. 45. The husband must live with and protect his wife. (The
second paragraph deals with the management of the wife's
property.)

ART. 48. The wife must obey her husband, live with him, and
follow him when he charges his domicile or residence.

Notwithstanding the provisions of the foregoing paragraph, the
court may for just cause relieve her from this duty when the
husband removes his residence to a foreign country.

And articles 143 and 149 of the Civil Code are as follows:

ART. 143. The following are obliged to support each other
reciprocally to the whole extent specified in the preceding article.

1. The consorts.

x x x x x x x x x

ART. (149) 49. The person obliged to give support may, at his
option, satisfy it, either by paying the pension that may be fixed or
by receiving and maintaining in his own home the person having
the right to the same.

Article 152 of the Civil Code gives the instances when the
obligation to give support shall cease. The failure of the wife to
live with her husband is not one of them.

The above quoted provisions of the Law of Civil Marriage and the
Civil Code fix the duties and obligations of the spouses. The
spouses must be faithful to, assist, and support each other. The
husband must live with and protect his wife. The wife must obey
and live with her husband and follow him when he changes his
domicile or residence, except when he removes to a foreign
country. But the husband who is obliged to support his wife may,
at his option, do so by paying her a fixed pension or by receiving
and maintaining her in his own home. May the husband, on
account of his conduct toward his wife, lose this option and be
compelled to pay the pension? Is the rule established by article 149
of the Civil Code absolute? The supreme court of Spain in its
decision of December 5, 1903, held:.

That in accordance with the ruling of the supreme court of Spain in
its decisions dated May 11, 1897, November 25, 1899, and July 5,
1901, the option which article 149 grants the person, obliged to
furnish subsistence, between paying the pension fixed or receiving
and keeping in his own house the party who is entitled to the same,
is not so absolute as to prevent cases being considered wherein,
either because this right would be opposed to the exercise of a
preferential right or because of the existence of some justifiable
cause morally opposed to the removal of the party enjoying the
maintenance, the right of selection must be understood as being
thereby restricted.

Whereas the only question discussed in the case which gave rise to
this appeal was whether there was any reason to prevent the
exercise of the option granted by article 149 of the Civil Code to
the person obliged to furnish subsistence, to receive and maintain
in his own house the one who is entitled to receive it; and
inasmuch as nothing has been alleged or discussed with regard to
the parental authority of Pedro Alcantara Calvo, which he ha not
exercised, and it having been set forth that the natural father simply
claims his child for the purpose of thus better attending to her
maintenance, no action having been taken by him toward providing
the support until, owing to such negligence, the mother was
obliged to demand it; it is seen that these circumstances, together
with the fact of the marriage of Pedro Alcantara, and that it would
be difficult for the mother to maintain relations with her daughter,
all constitute an impediment of such a nature as to prevent the
exercise of the option in the present case, without prejudice to such
decision as may be deemed proper with regard to the other
questions previously cited in respect to which no opinion should be
expressed at this time.

The above was quoted with approval in United States and De Jesus
vs. Alvir (9 Phil. Rep., 576), wherein the court held that the rule
laid down in article 149 of the Civil Code "is not absolute." but it
is insisted that there existed a preexisting or preferential right in
each of these cases which was opposed to the removal of the one
entitled to support. It is true that in the first the person claiming the
option was the natural father of the child and had married a woman
other than the child's mother, and in the second the right to support
had already been established by a final judgment in a criminal
case. Notwithstanding these facts the two cases clearly established
the proposition that the option given by article 149 of the Civil
Code may not be exercised in any and all cases.

Counsel for the defendant cite, in support of their contention, the
decision of the supreme court of Spain, dated November 3, 1905.
In this case Don Berno Comas, as a result of certain business
reverses and in order no to prejudice his wife, conferred upon her
powers to administer and dispose of her property. When she left
him he gave her all the muniments of title, mortgage credits, notes,
P10,000 in accounts receivable, and the key to the safe in which he
kept a large amount of jewels, thus depriving himself of all his
possessions and being reduced in consequence to want.
Subsequently he instituted this civil action against his wife, who
was then living in opulence, for support and the revocation of the
powers heretofore granted in reference to the administration and
disposal of her property. In her answer the wife claimed that the
plaintiff (her husband) was not legally in a situation to claim
support and that the powers voluntarily conferred and accepted by
her were bilateral and could not be canceled by the plaintiff. From
a judgment in favor of the plaintiff the defendant wife appealed to
the Audencia Territorial wherein, after due trial, judgment was
rendered in her favor dismissing the action upon the merits. The
plaintiff appealed to the supreme court and that high tribunal, in
affirming the judgment of the Audencia Territorial, said:

Considering that article 143, No. 1, of the Civil Code, providing
that the spouses are mutually obliged to provide each other with
support, cannot but be subordinate to the other provisions of said
Code which regulates the family organization and the duties of
spouses not legally separated, among which duties are those of
their living together and mutually helping each other, as provided
in article 56 of the aforementioned code; and taking this for
granted, the obligation of the spouse who has property to furnish
support to the one who has no property and is in need of it for
subsistence, is to be understood as limited to the case where, in
accordance with law, their separation has been decreed, either
temporarily or finally and this case, with respect to the husband,
cannot occur until a judgment of divorce is rendered, since, until
then, if he is culpable, he is not deprived of the management of his
wife's property and of the product of the other property belonging
to the conjugal partnership; and

Considering that, should the doctrine maintained in the appeal
prevail, it would allow married persons to disregard the marriage
bond and separate from each other of their own free will, thus
establishing, contrary to the legal provision contained in said
article 56 of the Civil Code, a legal status entirely incompatible
with the nature and effects of marriage in disregard of the duties
inherent therein and disturbing the unity of the family, in
opposition to what the law, in conformity with good morals, has
established; and.

Considering that, as the spouses D. Ramon Benso and Doa Adela
Galindo are not legally separated, it is their duty to live together
and afford each other help and support; and for this reason, it
cannot be held that the former has need of support from his wife so
that he may live apart from her without the conjugal abode where it
is his place to be, nor of her conferring power upon him to dispose
even of the fruits of her property in order therewith to pay the
matrimonial expenses and, consequently, those of his own support
without need of going to his wife; wherefore the judgment
appealed from, denying the petition of D. Ramon Benso for
support, has not violated the articles of the Civil Code and the
doctrine invoked in the assignments of error 1 and 5 of the appeal.

From a careful reading of the case just cited and quoted from it
appears quite clearly that the spouses separated voluntarily in
accordance with an agreement previously made. At least there are
strong indications to this effect, for the court says, "should the
doctrine maintained in the appeal prevail, it would allow married
persons to disregard the marriage bond and separate from each
other of their own free will." If this be the true basis upon which
the supreme court of Spain rested its decision, then the doctrine
therein enunciated would not be controlling in cases where one of
the spouses was compelled to leave the conjugal abode by the
other or where the husband voluntarily abandons such abode and
the wife seeks to force him to furnish support. That this is true
appears from the decision of the same high tribunal, dated October
16, 1903. In this case the wife brought an action for support against
her husband who had willfully and voluntarily abandoned the
conjugal abode without any cause whatever. The supreme court,
reversing the judgment absolving the defendant upon the ground
that no action for divorce, etc., had been instituted, said:

In the case at bar, it has been proven that it was Don Teodoro
Exposito who left the conjugal abode, although he claims, without
however proving his contention, that the person responsible for this
situation was his wife, as she turned him out of the house. From
this state of affairs it results that it is the wife who is party
abandoned, the husband not having prosecuted any action to keep
her in his company and he therefore finds himself, as long as he
consents to the situation, under the ineluctable obligation to
support his wife in fulfillment of the natural duty sanctioned in
article 56 of the Code in relation with paragraph 1 of article 143. In
not so holding, the trial court, on the mistaken ground that for the
fulfillment of this duty the situation or relation of the spouses
should be regulated in the manner it indicates, has made the errors
of law assigned in the first three grounds alleged, because the
nature of the duty of affording mutual support is compatible and
enforcible in all situations, so long as the needy spouse does not
create any illicit situation of the court above described.lawphil.net

If we are in error as to the doctrine enunciated by the supreme
court of Spain in its decision of November 3, 1905, and if the court
did hold, as contended by counsel for the defendant in the case
under consideration, that neither spouse can be compelled to
support the other outside of the conjugal abode, unless it be by
virtue of a final judgment granting the injured one a divorce or
separation from the other, still such doctrine or holding would not
necessarily control in this jurisdiction for the reason that the
substantive law is not in every particular the same here as it is in
Spain. As we have already stated, articles 42 to 107 of the Civil
Code in force in the Peninsula are not in force in the Philippine
Islands. The law governing the duties and obligations of husband
and wife in this country are articles 44 to 78 of the Law of Civil
Marriage of 1870 .In Spain the complaining spouse has, under
article 105 of the Civil Code, various causes for divorce, such as
adultery on the part of the wife in every case and on the part of the
husband when public scandal or disgrace of the wife results
therefrom; personal violence actually inflicted or grave insults:
violence exercised by the husband toward the wife in order to force
her to change her religion; the proposal of the husband to prostitute
his wife; the attempts of the husband or wife to corrupt their sons
or to prostitute their daughters; the connivance in their corruption
or prostitution; and the condemnation of a spouse to perpetual
chains or hard labor, while in this jurisdiction the only ground for a
divorce is adultery. (Benedicto vs. De la Rama, 3 Phil .Rep., 34,
45.) This positive and absolute doctrine was announced by this
court in the case just cited after an exhaustive examination of the
entire subject. Although the case was appealed to the Supreme
Court of the United States and the judgment rendered by this court
was there reversed, the reversal did not affect in any way or
weaken the doctrine in reference to adultery being the only ground
for a divorce. And since the decision was promulgated by this
court in that case in December, 1903, no change or modification of
the rule has been announced. It is, therefore, the well settled and
accepted doctrine in this jurisdiction.

But it is argued that to grant support in an independent suit is
equivalent to granting divorce or separation, as it necessitates a
determination of the question whether the wife has a good and
sufficient cause for living separate from her husband; and,
consequently, if a court lacks power to decree a divorce, as in the
instant case, power to grant a separate maintenance must also be
lacking. The weakness of this argument lies in the assumption that
the power to grant support in a separate action is dependent upon a
power to grant a divorce. That the one is not dependent upon the
other is apparent from the very nature of the marital obligations of
the spouses. The mere act of marriage creates an obligation on the
part of the husband to support his wife. This obligation is founded
not so much on the express or implied terms of the contract of
marriage as on the natural and legal duty of the husband; an
obligation, the enforcement of which is of such vital concern to the
state itself that the laws will not permit him to terminate it by his
own wrongful acts in driving his wife to seek protection in the
parental home. A judgment for separate maintenance is not due
and payable either as damages or as a penalty; nor is it a debt in the
strict legal sense of the term, but rather a judgment calling for the
performance of a duty made specific by the mandate of the
sovereign. This is done from necessity and with a view to preserve
the public peace and the purity of the wife; as where the husband
makes so base demands upon his wife and indulges in the habit of
assaulting her. The pro tanto separation resulting from a decree for
separate support is not an impeachment of that public policy by
which marriage is regarded as so sacred and inviolable in its
nature; it is merely a stronger policy overruling a weaker one; and
except in so far only as such separation is tolerated as a means of
preserving the public peace and morals may be considered, it does
not in any respect whatever impair the marriage contract or for any
purpose place the wife in the situation of a feme sole.

The foregoing are the grounds upon which our short opinion and
order for judgment, heretofore filed in this case, rest.

Torres, Johnson and Carson, JJ., concur.
G.R. No. L-4904 February 5, 1909

ROSALIA MARTINEZ, plaintiff-appellant,
vs.
ANGEL TAN, defendant-appellee.

Domingo Franco, for appellant.
Doroteo Karagdag, for appellee.

WILLARD, J.:

The only question in this case is whether or not the plaintiff and
the defendant were married on the 25th day of September, 1907,
before the justice of the peace, Jose Ballori, in the town of
Palompon in the Province of Leyte.

There was received in evidence at the trial what is called an
expediente de matrimonio civil. It is written in Spanish and
consists, first, of a petition directed to the justice of the peace,
dated on the 25th of September, 1907, signed by the plaintiff and
the defendant, in which they state that they have mutually agreed
to enter into a contract of marriage before the justice of the peace,
and ask that the justice solemnize the marriage. Following this is a
document dated on the same day, signed by the justice of the
peace, by the plaintiff, by the defendant, and by Zacarias Esmero
and Pacita Ballori. It states the presentation of the petition above
mentioned; that the persons who signed it where actually present in
the office of the justice on the same day named; that they ratified
under oath the contents of the petition, and that they insisted in
what they had there asked for. It also stated that being required to
produce witnesses of the marriage, the presented Zacarias Esmero
as a witness for the husband and Pacita Ballori as a witness for the
wife. Following this is a certificate of marriage signed by the
justice of the peace and the witnesses Zacarias Esmero and Pacita
Ballori, dated the 25th day of September, 1907, in which it is
stated that the plaintiff and the defendant were legally married by
the justice of the peace in the presence of the witnesses on that day.

The court below decided the case in favor of the defendant,
holding that the parties were legally married on the day named.
The evidence in support of that decision is: First. The document
itself, which the plaintiff admits that she signed. Second. The
evidence of the defendant, who testifies that he and said plaintiff
appeared before the justice of the peace at the time named, together
with the witness Zacarias Esmero and Pacita Ballori, and that they
all signed the document above mentioned. Third. The evidence of
Zacarias Esmero, one of the above-named witnesses, who testifies
that the plaintiff, the defendant, and Pacita Ballori appeared before
the justice at the time named and did sign the document referred to.
Fourth. The evidence of Pacita Ballori, who testified to the same
effect. Fifth. The evidence of Jose Santiago, the bailiff of the court
of the justice of the peace, who testified that the plaintiff, the
defendant, the two witnesses above-named, and the justice of the
peace were all present in the office of the justice of the peace at the
time mentioned.

The only direct evidence in favor of the plaintiff is her own
testimony that she never appeared before the justice of the peace
and never was married to the defendant. She admits that she signed
the document in question, but says that she signed it in her own
home, without reading it, and at the request of the defendant, who
told her that it was a paper authorizing him to ask the consent of
her parents to the marriage.

There is some indirect evidence which the plaintiff claims supports
her case, but which we think, when properly considered, is not
entitled to much weight. The plaintiff at the time was visiting, in
the town of Palompon, her married brother and was there for about
two weeks. The wife of her brother, Rosario Bayot, testified that
the plaintiff never left the house except in her company. But she
admitted on cross-examination that she herself went to school
every morning and that on one occasion the plaintiff had gone to
church unaccompanied. The testimony of this witness loses its
force when the testimony of Pacita Ballori is considered. She says
that at the request of the defendant on the day named, about 5
o'clock in the afternoon, she went to the store of a Chinese named
Veles; that there she met the plaintiff and her mother; that she
asked the mother of the plaintiff to allow the plaintiff to
accompany her, the witness, to her own house for the purpose of
examining some dress patterns; that the mother gave her consent
and the two rights left the store, but instead of going to the house
of the witness they went directly to the office of the justice of the
peace where the ceremony took place; that after the ceremony had
taken place, one came advising them that the mother was
approaching, and that they thereupon hurriedly left the office of the
justice and went to the house of Pacita Ballori, where the mother
later found them.

The other testimony of the plaintiff relating to certain statements
made by the justice of the peace, who died after the ceremony was
performed and before the trial, and certain statements made by
Pacita Ballori, is not sufficient to overcome the positive testimony
of the witnesses for the defendant.

The other testimony of Pacita Ballori is severely criticized by
counsel for the appellant in his brief. It appears that during her first
examination she was seized with an hysterical attack and
practically collapsed at the trial. Her examination was adjourned to
a future day and was completed in her house where she was sick in
bed. It is claimed by counsel that her collapse was due to the fact
that she recognized that she testified falsely in stating the office of
the justice of the peace was at the time in the municipal building,
when, in fact, it was in a private house. We do not think that the
record justifies the claim of the appellant. The statement as to the
location of the office of the justice of the peace was afterwards
corrected by the witness and we are satisfied that she told the facts
substantially as they occurred.

There is, moreover, in the case written evidence which satisfies us
that the plaintiff was not telling the truth when she said she did not
appear before the justice of the peace. This evidence consists of
eight letters, which the defendant claims were all written by the
plaintiff. The plaintiff admits that she wrote letters numbered 2 and
9. The authenticity of the others was proven. No. 9 is as follows:

ANGEL: Up to this time I did not see my father; but I know that he
is very angry and if he be informed that we have been married
civilly, I am sure that he will turn me out of the house.

Do what you may deem convenient, as I don't know what to do.

Should I be able to go to-morrow to Merida, I shall do so, because
I can not remain here.

Yours, ROSAL.

Letter No. 6, which bears no date, but which undoubtedly was
written on the morning of the 25th of September, is as follows:

Sr. D. ANGEL, TAN.

ANGEL: It is impossible for me to go to the house of Veles this
morning because my sister in law will not let me go there; if it suits
you, I believe that this afternoon, about 5 or 6 o'clock, is the best
hour.

Arrange everything, as I shall go there only for the purpose of
signing, and have Pacita wait for me at the Chinese store, because I
don't like to go without Pacita.

The house must be one belonging to prudent people, and no one
should know anything about it.

Yours, ROSAL.

It will be noticed that this corroborates completely the testimony of
Pacita Ballori as to her meeting the plaintiff in the afternoon at the
store of the Chinese, Veles. Letter No. 7 is also undated, but was
evidently written after the marriage before the justice of the peace.
It is as follows:

Sr. D. ANGEL, TAN.

ANGEL: If you want to speak to my mother, who is also yours,
come here by and by, at about 9 or 10, when you see that the tide is
high because my brother will have to go to the boat for the purpose
of loading lumber.

Don't tell her that we have been civilly married, but tell her at first
that you are willing to celebrate the marriage at this time, because I
don't like her to know to-day that we have been at the court-house,
inasmuch as she told me this morning that she heard that we would
go to the court, and that we must not cause her to be ashamed, and
that if I insist on being married I must do it right.

Tell her also that you have asked me to carry you.

I send you herewith the letter of your brother, in order that you
may do what he wishes.

Yours, ROSAL.

Letter No. 8 was also evidently written after the marriage and is in
part as follows:

Sr. D. ANGEL TAN.

ANGEL: I believe it is better for you to go to Ormoc on Sunday of
the steamer Rosa, for the purpose of asking my father's permission
for our marriage, and in case he fails to give it, then we shall do
what we deem proper, and, if he does not wish us to marry without
his permission, you must request his consent.

Tell me who said that my sister in law knows that we are civilly
married; my brother ill treatment is a matter of no importance, as
every thing may be carried out, with patience.

It was proven at the trial that the defendant did go to Ormoc on the
steamer Rosa as indicated in this letter, and that the plaintiff was
on the same boat. The plaintiff testified, however, that she had no
communication with the defendant during the voyage. The plaintiff
and the defendant never lived together as husband and wife, and
upon her arrival in Ormoc, after consulting with her family, she
went to Cebu and commenced this action, which was brought for
the purpose of procuring the cancellation of the certificate of
marriage and for damages. The evidence strongly preponderates in
favor of the decision of the court below to the effect that the
plaintiff appeared before the justice of the peace at the time named.

It is claimed by the plaintiff that what took place before the justice
of the peace, even admitting all that the witnesses for the defendant
testified to, did not constitute a legal marriage. General orders, No.
68, section 6, is as follows:

No particular form from the ceremony of marriage is required, but
the parties must declare in the presence of the person solemnizing
the marriage, that they take each other as husband and wife.

Zacarias Esmero, one of the witnesses, testified that upon the
occasion in question the justice of the peace said nothing until after
the document was signed and then addressing himself to the
plaintiff and the defendant said, "You are married." The petition
signed the plaintiff and defendant contained a positive statement
that they had mutually agreed to be married and they asked the
justice of the peace to solemnize the marriage. The document
signed by the plaintiff, the defendant, and the justice of the peace,
stated that they ratified under oath, before the justice, the contents
of the petition and that witnesses of the marriage were produced. A
mortgage took place as shown by the certificate of the justice of
the peace, signed by both contracting parties, which certificates
gives rise to the presumption that the officer authorized the
marriage in due form, the parties before the justice of the peace
declaring that they took each other as husband and wife, unless the
contrary is proved, such presumption being corroborated in this
case by the admission of the woman to the effect that she had
contracted the marriage certified to in the document signed by her,
which admission can only mean the parties mutually agreed to
unite in marriage when they appeared and signed the said
document which so states before the justice of the peace who
authorized the same. It was proven that both the plaintiff and the
defendant were able to read and write the Spanish language, and
that they knew the contents of the document which they signed;
and under the circumstances in this particular case were satisfied,
and so hold, that what took place before the justice of the peace on
this occasion amounted to a legal marriage.

The defendant's original answer was a general denial of the
allegations contained in the complaint. Among these allegations
was a statement that the parties had obtain previously the consent
of the plaintiff's parents. The defendant was afterwards allowed to
amend his answer so that it was a denial of the allegations of the
complaint except that relating to the condition in regard to the
consent of the parents. The plaintiff objected to the allowance of
this amendment. After the trial had commenced the defendant was
again allowed to amend his answer so that it should be an
admission of paragraphs 2 and 3 of the complaint, except that part
which related to the consent of the parents. It will be seen that this
second amendment destroyed completely the first amendment and
the defendants lawyer stated that what he intended to allege in his
first amendment, but by reason of the haste with which the first
amendment was drawn he had unintentionally made it exactly the
opposite of what he had intended to state. After argument the court
allowed the second amendment. We are satisfied that in this
allowance there was no abuse of discretion and we do not see how
the plaintiff was in any way prejudiced. She proceeded with the
trial of the case without asking for a continuance.

The judgment of the court below acquitting the defendant of the
complaint is affirmed, with the costs of this instance against the
appellant.