Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
AURBACH VS. SANITARY WARES 1. ATTACHMENT; DEBTS AND DEBTORS; PROPERTY SUBJECT TO
ATTACHMENT UNDER SECTION 431, CODE OF CIVIL PROCEDURE.
G., a pilot and member of the Pilots Association of the port of Manila,
FACTS: This was the case where there were essentially while in charge of a certain steamship as such pilot, by negligence
two groups of shareholders in the company: one caused an injury to the "Spanish Bridge," property belonging to the
composed of Filipinos, and the other group of foreign city of Manila. The city brought an action against G. and secured a
judgment for the amount of damages. An execution was issued against
investors. There was an increase in the latters shares in G. and returned unsatisfied. G., when he became a member of the
the company so they wanted a proportionate increase in Pilots Association, as all of the members did, paid into the funds of
their nominees to the companys Board of Directors. said association the sum of P800. This fund, according to the rules and
regulations of the association, was held by the association for the
HOLDING: Although a corporation cannot enter into a purpose of answering for damages caused by its members to ships.
The city of Manila attempted, under the provisions of section 431 of
partnership, it can nevertheless engage in a joint the Code of Procedure in Civil Actions, to attach the funds of the
venture with others. In this case, taking into association for the payment of its claim against G. : Held, That the
funds of the association did not constitute a debt, credit, or personal
consideration their intent and history, the parties
property, belonging to G., subject to be attached under said section
formed a joint venture and not a corporation. This 431. The question whether the city of Manila could maintain a special
becomes relevant because it implies that the argument action against the association for the purpose of recovering damages
for the injury complained of is not decided.
of ASI (the foreign investors), having been based on the
Corporation Code, will not apply. 2. PROPERTY ID.; ID.; ID.; THE WORDS "CREDIT," "DEBT,"
"PERSONAL." "Debt" as used in section 431, Code of Civil
Procedure, means some definite amount of money, ascertained or
capable of being ascertained, which may be paid over to the sheriff or
to the court under an order, while "credits" and "personal property"
are something belonging to the defendant, but in possession and
under the control of the person attached. The debt, credit, or personal Seventh. On the 26th day of May, 1906, an execution was issued upon
property which is attempted to be subjected to the payment of the the said judgment against the said defendant, Francisco Gambe, and
obligation of the defendant and which is alleged to be in the was returned upon the 23d day of June, 1906, unsatisfied.
possession of the person attached, must exist in some definite and
ascertainable form at the time of the attachment. Eighth. Later, upon 11th day of July, 1906, another execution was
issued out of the Court of First Instance against the defendant,
Francisco Gambe, which was returned upon the 17th day of August,
DECISION 1906, unsatisfied.
Ninth. On the same day, or the 11th day of July, 1906, in accordance
with the provisions of section 431 of the Code of Procedure in Civil
JOHNSON, J. : Actions, the plaintiff attempted to attach whatever money or effects
which the defendant had in the said Pilots Association of Manila. These
attachments were directed to the Hongkong and Shanghai Banking
From the record the following facts appear: chanrob1es v irt ual 1aw l ibra ry Corporation, the Hon. W Morgan Shuster, Collector of Customs, as well
as Francisco Aguado, who was the chief of the said Pilots Association.
First. That upon the 31st day of August, 1903, the plaintiff commenced
an action in the Court of First Instance of the city of Manila against the Tenth. On the 22nd day of August, 1906, the attorney for the plaintiff
defendants, Francisco Gambe, Manuel Perez, Antonio Herranz, and presented in the lower court the following affidavit: jgc:c hanro bles. com.ph
Second. After a consideration of the facts adduced during the trial, the "That a judgment was duly entered and docketed in the said action in
Honorable Judge Rhode, then one of the judges of the Court of First the said court on the 20th day of April, 1906, for the sum of thirteen
Instance of the city of Manila, rendered a judgment against the said hundred dollars ($1,300), United States currency, and costs, against
Francisco Gambe, for the sum of $1,300 United States currency, and the above-named defendant, in favor of the plaintiff.
for the costs.
"That an execution upon said judgment was duly issued against the
Third. Francisco Gambe was a pilot and a member of the Pilots property of said judgment debtor.
Association of Manila and was at the time of the alleged accident and
injury in charge of the said steamship Alfred. Judge Rohde dismissed "That the said judgment debtor now resides in the said city of Manila.
the cause as to the other defendants.
"That the sheriff of the city of Manila has returned said execution
Fourth. From this judgment of the lower court the defendant Gambe wholly unsatisfied, and that the said judgment still remains wholly
appealed to the Supreme Court. unpaid.
Fifth. After a consideration of the facts, the Supreme Court on the 31st "That affiant is informed and believes that an organization or
day of March, 1906, affirmed with costs the judgment of the lower association known as the Manila Pilots Association, of which Francisco
court. (See City of Manila v. Gambe, 6 Phil. Rep., 49.) Aguado is the chief pilot, Manuel Goitia is the treasurer and custodian
of its funds, and of which W. Morgan Shuster, Francisco Gambe, and
Sixth. The judgment thus affirmed was returned to the lower court for other pilots of the port of Manila are members, has property in its
an execution of the same. possession dedicated to an for the purpose of payment of damages
caused through negligence of the pilots of said association, or any of "Notary Public.
them, to third persons.
"Commission expires December 31, 1906."
"That the said association has in its possession and under its control,
property of the said judgment debtor, exceeding eight hundred pesos Upon this affidavit, the Hon. A.S. Crossfield, one of the judges of the
(P800), Philippine currency, and is indebted to the said judgment Court of First Instance of the city of Manila, made the following
debtor in an amount exceeding eight hundred pesos (P800), Philippine order:jgc:c han robles. com.ph
currency.
"On reading the foregoing affidavit, it satisfactorily appearing to me
"That the said indebtedness to said judgment debtor arose through therefrom that the Manila Pilots Association has property of Francisco
this, that the said judgment debtor has deposited with the said Gambe, the defendant in the above-entitled action, which property
association the said amount exceeding eight hundred pesos (P800), ought to be applied toward the satisfaction Aguado is the chief pilot,
Philippine currency, and that the said association now holds the said Manuel Goitia the treasurer, and Francisco Gambe and W. Morgan
amount subject to the order of said judgment debtor, and that the said Shuster are members of said association, and that it is proper cause
amount should be applied, affiant believes, to the payment or for this order, I, the undersigned, judge of the Court of First Instance
satisfaction of the judgment debtor. of the city of Manila, Philippine Islands, do hereby order the said
Francisco Aguado, Francisco Gambe, Manuel Goitia, and W. Morgan
"That on the 23d day of June and 11th of July, 1906, the said Pilots Shuster personally to appear before me in the said city of Manila, on
Association, through the chief pilot, the treasurer of said association. the 10th day of September, at 10 oclock in the morning of that day, to
W. Morgan Shuster, and Francisco Gambe, was duly notified and each answer concerning the said property." cralaw vi rtua 1aw lib rary
"Subscribed and sworn to before me this 22d day of August, 1906, "From the declaration made it appears: jgc:chan roble s.com.p h
exhibiting in the act cedula No. 1755565, dated Manila, June 6, 1906.
"That each member of the Pilots Association before becoming such,
(Signed) "MODESTO REYES, must deposit with the association the sum of P800, to be retained by
the association for the purpose of satisfying damages which may be
incurred by others by reason of negligence or fault on the part of the non-existent corporation. Chua admitted liability and asked
association in the transaction of its business.
for some time to pay. Yao waived his rights. Lim Tong Lim
"It further appears from the declarations that persons thus depositing however argued that hes not liable because he was not
the money could not withdraw it; that it is property of the association aware that Chua and Yao represented themselves as a
and may not be withdrawn, even in case of the death of a member, corporation; that the two acted without his knowledge and
and that said Francisco Gambe is a member.
consent.
"I therefore find that the above-named respondents, either as officers
of the association or members thereof, have not in their control, nor
ISSUE: Whether or not Lim Tong Lim is liable.
do they possess any property, money or effects which would be the HELD: Yes. From the factual findings of both lower courts, it
subject of a levy under execution against said Gambe, and the order to
appear is discharged."cralaw virtua1aw l ibra ry
is clear that Chua, Yao and Lim had decided to engage in a
fishing business, which they started by buying boats worth
From this decision of the lower court the plaintiff appealed and made P3.35 million, financed by a loan secured from Jesus Lim.
the allowing assignments of error in this court: jgc: chan robles .com.p h