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[ GR No. 1056, Dec 08, 1903 ]



3 Phil. 34

[ G. R. No. 1056, December 08, 1903 ]




This is an action for divorce.  The complaint, which was filed on October 29, 1901, alleged as the grounds therefor. abandonment  and  adultery.  The answer  charged  the plaintiff with adultery, denied the adultery imputed to the defendant,  and asked for a divorce.  Judgment was rendered on July 5,1902, in favor of the plaintiff, granting her a  divorce  and  81,042.76 pesos as her  share  of the conjugal property.  The defendant excepted to the judgment and moved for a new trial on  the  ground that the facts  found were  not  justified by  the evidence.   This motion was denied, and  the defendant excepted.  The record before us contains all the evidence received at the trial.

(1)  The first question which we  find it  necessary  to decide  is whether or not the Courts of First Instance now have jurisdiction  of divorce cases, and if they have, on what law it is based.

The  court below  assumed that  the provisions of the Civil Code relating to  divorce, contained in title 4 of book 1, are still in force.  In this we think there was error.

By the royal  decree of July 31, 1889, the Civil Code as it existed in the  Peninsula was extended to the Philippines. The "cumplase" of the governor-general was affixed to this decree on September 12,1889.  The Code was published in the Gaceta de Manila on November 17,1889, and took effect as a law on December 8, 1889.  On December 31, 1889, the following order  was published in the Gaceta de  Manila:


"Manila, December 29,1889.

"By  direction of Her  Majesty's  Government,  until further order, titles  4  and 12 of the Civil Code, extended to these Islands by royal decree of July 31 last, published in the Gazette of this city of the  17th of November last, are suspended in this Archipelago.

"The proper authorities will issue the necessary orders to the end that in lieu of the two titles so suspended the former law may continue in force.

"This order will be communicated and published.


This order purports to have been issued by the governor-general by order of  the Government at  Madrid, and although  it is stated  in the Compilacion Legislativa  de Ultramar  (vol.  14, p.  2740) that  no decree  of this kind Avas ever  published in the Gaceta de Madrid and that a copy thereof could not be obtained in  any governmental office, yet  we can not assume that none was ever issued.

Sanchez Roman says: "By reason of the  lack  of that preparation which was proper in  a matter of such great importance, it seems, according to reports which merit a certain amount of credit  (for no order has  ever been published which  reveals it), that  the Government of the Philippines, after taking the opinion of the  audiencia of Manila, consulted the  colonial office  concerning the suspension of titles 4 and 12 of book 1.   This  opinion was asked  in  respect to title 4 on account of  certain class influences which were strongly  opposed to the application of the formula  of marriage which gave  some slight intervention to  the authorities of the State  through  the municipal  judge or  his substitute in the celebration  of the canonical  marriage.  As to title 12, the  opinion was asked by reason of the fact that there was no such officer as municipal  judge  who  could take  charge  of the civil registry."   (2 Derecho  Civil, p. 64.)

Moreover, the  power of the  governor-general, without such order to suspend the operation of the Code, was well settled. A royal order so stating was  issued at Madrid on  September 19, 1876, and  with the cumplase  of the governor-general  published  in  the  Gaceta de Manila on November 15, 1876.

It was  suggested at  the  argument that this order  of suspension was  inoperative  because it did  not mention the book of the Code in which the suspended titles 4 and 12 were to be found.  The Civil Code contains four books. All of them except the third contain a title numbered 4, and  the first  and  fourth  contain  a title numbered  12. Title 4 of book 2 deals with rights of property in water and  mines and with  intellectual  property.  Title 4  of book 4 relates to the contract of purchase and sale, and title 12 to insurance and  other contracts of that class. There is no such intimate relation between these two titles of this book as between titles 4 and 12 of book 1, the one relating as it does to marriage and divorce and the other to the civil registry.  The  history  of the Law of Civil Marriage of 1870 is well known.  As a consequence of the religious liberty proclaimed in the constitution of 1869 the whole of the law was in force in the Peninsula. But that  basis was wanting in these Islands, and prior  to the promulgation of the Civil  Code in  1889 no part  of the law was in force here, except articles 44 to 78, which were promulgated in 1883.  Of  these articles those numbered 44 to 55 are found in title 4, but  they  relate merely to the rights and obligations of husband and wife and do not touch the forms of marriage nor the subject of divorce. If these  provisions of the Civil Code on these subjects could be suspended by the  certain class influences mentioned  by Sanchez Roman, the only marriages in  the Islands would be canonical  and the only courts  competent to declare a divorce would be ecclesiastical.  There can be no doubt but that  the order of  suspension refers to titles 4 and 12  of book 1, and it  has always been  so understood.  It follows that articles 42 to 107 of the Civil Code were not in force here as law on August 13, 1898, and therefore are not now.

While  General Orders, No.  68,   promulgated by  the Military Government on December 18,1899, treats of marriage  and nullity  of marriage, it  says nothing  about divorce.  To find the law applicable to this subject  resort must be had to the legislation relating thereto in force in the Islands prior to 1889.   It seems necessary to ascertain in the first place what laws on the subject were in force in the Peninsula and afterwards if any 'of them had been extended to the Philippines.

The canon law, which the ecclesiastical courts administered both in Spain and here, had not as such any binding force outside of the church.  However, any part of the canon law which by proper action of the civil authorities had become a civil  law stood upon the same footing as any other law of Spain.  This happened in the case of the decree of the council of Trent.  That those decrees have in Spain the force of a  civil laAv is well  settled.  "Tho decrees of the council of Trent have in Spain force of law" (1 Practica General Forense, Zuniga, 260).  In the preface to the Law of Civil Marriage of 1870, its author, Montero Rios,  says: "Philip II accepting as  law of the State by royal  cedula dated in Madrid the 12th of July, 1554, the decrees of the council of Trent," etc.  This royal cedula of Philip II was brought forward into the Novisima Recopilacion and is now Law 13, title 1, book 1, thereof.  The same thing  is declared in article 75 of the present Civil  Code, which is as follows: "The requisites, form, and  solemnities for the  celebration  of canonical marriages shall be governed by the provisions of the Catholic Church and of the holy council of Trent, accepted as laws of the Kingdom."  It may  be  doubted, notwithstanding, if these decrees,  even  if considered  as extended to the Philippines and in force here, furnish any aid in the solution  of  the question.   The canonists hold that they do declare adultery to be a ground for divorce  (2 Procedimientos  Eclesiasticos,  Cadena,  p. 211).   This is, however, more by deduction than otherwise.  The  causes for divorce  are nowhere distinctly  stated  therein.  The seventh canon of the twenty-fourth session (November 11,1563), relied upon by the ecclesiastical writers, does not say that adultery is a ground for a separation; it  simply  says that it is not a ground for a divorce from the bond  of matrimony.   The eighth canon of the same  session, while it declares that the church may direct the  separation of the spouses  for many causes, does not state what those causes are.  The laws of the  church  which do state what these causes are have not the force of civil laws.

The Decretal  Law  of December 6, 1868,  abolishing in the Peninsula the special jurisdictions, was extended to the Philippines  by a royal order of February  19, 1869, which was published in the Gaceta de Manila on June 2, 1869.  That Decretal Law contained the following provision:

"The ecclesiastical courts shall continue to take cognizance  of matrimonial and  eleemosynary causes  and of ecclesiastical offenses in accordance with the provisions of the canon  laws.  They shall also have jurisdiction over causes of divorce and annulment of marriage as provided by the holy council of Trent; but incidents with  respect to the deposit of a married woman,  alimony, suit  money, and  other temporal affairs shall pertain to the ordinary courts."

This did not have the effect of making the canons mentioned therein civil  laws.   It  simply declared that  the church might try the cases referred to according to its own laws in its own courts and that the State would enforce the decrees of the latter.

It is not necessary, however, to decide this question as to the decrees of the council of Trent, for the partidas do contain provisions relating to the subject of divorce. Law 1, title 10, of the fourth partida, defines divorce as follows:

"Divortium, in Latin, means, in common speech,  separation (departimiento), and is the means by Avhich the wife is separated from the husband, and the husband from the wife, on account of some impediment existing between them, when it is properly proved in court.  And whoever separates the parties in any other way, doing it by force, or contrary to law, will go against that which is said by Jesus Christ, in  the Gospel: 'those whom God hath joined together, let no man put asunder.'   But when the spouses are separated by law, it is not then considered that man separates them, but the written law, and the impediment existing between them.  And divortio takes its name from the separation of the wills of man and woman, which  are in a contrary state when separated, to what they were when the parties were united."

Law 2 of the same title is as follows: 

"Properly speaking there are two forms of separation to which the name of divorce may be given and two reasons therefor; there are many reasons which bring about  the separation of those who appear to be married but are  not so by reason of some impediment between them.   Of these two reasons, one is  religion  and the other the  sin  of fornication.  Religion authorizes divorce on this ground: That if any persons there  be lawfully married,  there  not existing between them any  of the impediments upon which the marriage might be dissolved, if either  of them after they have been carnally joined should desire to  take holy orders and the other should grant permission, the one desiring to remain in the world promising to live a life of chastity and being so aged that none can suspect that such spouse will be guilty of the crime of fornication and  the other enter into  the  order in  this manner, a separation results which may properly be  called divorce, but it must be made by order of the bishop or some other of the prelates of holy church who have authority therefor.   Furthermore, if the wife offends her husband  by the crime  of fornication or adultery, this is another  reason which we say may properly be a  ground for divorce.  The accusation  is to be brought  before the judge of the holy  church and proof made of the fornication or adultery, as set forth  in  the preceding title.  The same  would result should one of  the spouses commit spiritual fornication by becoming a heretic or a Moor or a Jew, if he or she should refuse to eschew this evil.   And the reason why this separation which is authorized by reason of these two things, either religion or fornication, is properly called divorce, in distinction from separation which  results from other impediments, is that, although it separates those  who were married as stated in this law and the preceding  one, the marriage nevertheless subsisjs, and thus it is  that neither one of them can contract a second marriage at any  time excepting in the case of a separation granted by reason  of adultery,  in which case the surviving spouse1 may remarry  after the death of the other."

It will be seen from these laws that the onlv ground for divorce now of importance here is adultery.

Law 2, title 9, of the fourth partida, provides in part as follows: 

"Husband and wife may accuse each other, in another way than those mentioned in the preceding law; and that is for adultery.  And if the accusation be made with a view to separating the parties from living together,  or from having any commerce with each other, no other person but the spouses themselves can make an accusation for such a cause, and it ought to be made before the bishop  or the ecclesiastical judge  (official) either by the parties themselves or their attorneys.   *  *  *  And in all the various ways in which the husband can accuse the wife, mentioned in these two laws, the wife may in like manner, according to holy church, accuse him, if she choose; and she ought to be heard, as he is himself."  While Law 2 of title 10 seems to speak only of the adultery of the wife, this clearly gives the wife the right to accuse the husband of adultery for the purpose  of  securing a separation.  So does Law 13, title 9, partida 4.

The divorce did not annul the marriage.  Law 3,  title 2, partida 4, says, among other things, the following: 

"Yet, with all this, they may separate,  if one of them, commit the sin of adultery, or join any  religious order, with the consent of the other, after they have  known each other carnally.  And notwithstanding they separate for one of these causes,  no  longer to  live together, yet the marriage is not dissolved on that account."  Law 4, title 10, partida 4, is to the same effect.  Law 7, title 2, partida 4, is in part as follows: 

"So great  is the tie and force of marriage that when legally contracted it can not be dissolved, nothwithstanding one of the parties should  turn heretic or Jew or Moor or should commit adultery.  Nevertheless, for any of these causes they may be separated by a judgment of the church, so as to live no longer together, nor to have any  carnal connection with one another, according to what is said in the title on the clergy, in the law which begins with the words 'otorgandose algunos.'"

The partidas contain other provisions in regard to the form of the libel  (Law 12, title 9, partida 4), and Law 7, title 10, partida 4, confers jurisdiction upon the church  in cases of  divorce.

That either spouse has been guilty of adultery is a defense to his or her suit (Law 8, title 2, partida 4), so is the fact that he has pardoned her (Law 6, title 9, partida 4). And if, after a divorce has been  granted to the husband, he  commit adultery, there is a waiver of  the  judgment (Law 6, title 10, partida 4).

Were these provisions of the partidas in force  in the Islands prior to 1889? The general rule was that laws  of the Peninsula did not rule in the colonies unless they were expressly extended to them.  As to certain laws, this result was, however,  accomplished in another way.   An examination of the Laws of the Indies will show that they are almost without exception of  an administrative character. They deal  with the relations of the citizen to the church and to the Government and  some of them to matters  of procedure.   The laws which treat of the rights of citizens between themselves  are few   This fact leads to the promulgation of the law which appears as Law 2, title 1, book 2,  of the Recopilacion de las Leyes de Indias.  The last part of Law 1 of that title and said Law 2 are as follows: 

"And as  to all matters not provided for by the laws  of this compilation, the laws of the compilations and the partidas of these Kingdoms of Castile shall be followed in the decision of causes in accordance with the following law." (Law 1.) 

"We order and command that  in  all causes, suits, and litigations  in  which the  laws of  this compilation do not provide for the manner of their decision, and no such provision is found in special enactments passed for  the  Indies and still unrepealed, or those which may hereafter be so enacted, that then the laws of this our Kingdom of Castile shall be followed,  in conformity with the law of Toro, both with respect to the procedure to be followed in such cases, suits, and litigations, and with respect to the decision of the same on the merits."   (Law 2.)

This law of  Toro; designating the order in  which the different bodies of law should be applied, is now found in book 3, title 2,  Law 4 of the Novisima Recopilacion.

In the royal cedula of Carlos, dated May 18, 1680, declaring the force of this compilation, the commands of this Law 2 are practically repeated.  By the operation of this law, first enacted in 1530, those laws of the partidas hereinbefore referred to relating to divorce,  upon the discovery and settlement of the Philippines became at once effective therein.  They have  remained in force since as civil laws of the  state as  distinguished from  the laws of the church. It may be added  also that upon  them  the  ecclesiastical courts apparently in part relied in determining cases for divorce pending before them.  They are cited as authorities by the writers  upon ecclesiastical law.   (3 Procedimientos Eclesiasticos, Salazar and La Fuente, p. 9; Practica Forense, Rodriguez, pp.  410, 413; 2 Practica General Forense, Zuiiiga,  p.  90; 2  Procedimientos Eclesiasticos, Cadena, p. 210.)

Being  in force on August 13, 1898,  they  continued in force with other laws of a similar  nature.   (Am. Ins.  Co. vs.  Canter, 1 Pet., 511; proclamation of General Merritt, August 14, 1898).  There is nothing in the case of Hallett vs.  Collins (10 How., 175)  which is inconsistent with this result.  In fact that case assumes that the law of  the partidas regarding matrimony was in  force in Louisiana, this conclusion being reached, however, without taking into consideration the above-mentioned Law  of the Indies and without making  the proper exceptions.   (Law 2, title 1, book 2.)

The partidas recognized adultery as a ground for divorce. Therefore, according to the civil as well as the canonical law in force here  on August 13, 1898, the commission of that offense gave the injured party the right to a divorce. That provision of the substantive civil law was not repealed by the change  of sovereignty.  The complete separation under the American Government of church and state, while it changed  the tribunal in which this right should be enforced, could not affect the right itself.   The fact that the ecclesiastical  courts no longer exercise such power is not important.  The jurisdiction  formerly  possessed by them is now vested in Courts of First Instance, by virtue of Act No. 136.  Section 56, first and fifth paragraphs of that  act, provides that "Courts of First Instance shall have original jurisdiction, first, in all civil actions in which the subject of litigation is not capable of pecuniary estimation; fifth,   *  *  *  and  in all such  special  cases and proceedings  as are not otherwise provided for."
The  result is  (1)  that Courts of First  Instance have jurisdiction  to entertain a  suit for  divorce; (2) that the only  ground therefor is adultery;  (3)  that an action  on that ground  can be maintained by the husband against the wife, or by the wife against the husband; and (4)  that the decree does not dissolve the marriage bond.   The Court of First Instance of Iloilo, therefore, committed no error in assuming jurisdiction of this case.

(2) A  motion for a new  trial having been made in the court below  on the ground that the findings of fact contained  in the decision were not justified by the evidence, it becomes necessary to examine that evidence.

The adultery of the defendant was fully proved.

The finding that the plaintiff had not committed adultery is, however,  plainly and manifestly  against the weight of the evidence.  We arrive at this result from a consideration chiefly of the admitted facts in  the case, the most important of which is the letter written by the plaintiff to the defendant on March 6, 1899, and found at pages 168 and 195.  This is in  itself practically conclusive against her. A portion of that letter is as follows: 

"E., I still  feel ashamed for the past, although it  is seven years since we separated.  For this, then, Esteban, pardon me for pity's sake.  Wipe out the past.  Remember me for the love of God.  Contemplate our unhappy fate.  To you I look to  assuage my sorrow.  E., I have heard that you have  had  some misfortunes lately.   I send my sympathy, although I am unworthy of  your presence."

The significant words "I am unworthy of your presence" probably escaped the attention of the judge below,  because he has  not quoted them.  The contention of the appellee is that the wrong for which the plaintiff sought pardon was that of having asked for an allowance.   This contention can not for a moment be sustained.   A woman does  not ask her husband to blot out the past,  to have compassion on her, and, most important of all, does not say that  she is unworthy of his presence simply because she has asked him for an allowance, something to which, according to her own belief, she had at the time a  perfect legal right. The letter is a confession of guilt.

It is admitted that the plaintiff and  defendant had lived happily together  from the time of their marriage in July, 1891, to August,  1892.   It is also admitted that then  the defendant suddenly, without any previous warning, took. his wife to the 4ouse  of her  parents,  left her there,  and never  lived with her afterwards.  There  must have been some  reason  for this  sudden change.  The court below says that  it was because the defendant had tired of  his wife.  There  is nothing in the evidence  to support  this theory.  In her complaint the plaintiff  charges the defendant with  having  committed adultery with Gregoria Bermejo in 1892.  She produced no evidence to support this allegation as to the time. No one of the six witnesses  for the plaintiff upon this charge fix any  date prior to 1894. The other two charges relate to 1899 and 1901.   There is no evidence in the case from which a judge would be justified in finding that from the separation in 1892 to some time in 1894 the defendant had  been unfaithful  to  his marriage vow.  And the judge below made no such finding.

Two witnesses, Epifanio  Lacson and Doroteo  Garcia, who testified as to the charge in connection with Gregoria, speak of a woman brought by the  defendant to Negros in 1892.  But an examination of their evidence will show that it is entirely insufficient to  prove any  illicit relations between this woman and the  defendant.  In view  of the evidence which the plaintiff  did present in this case,  we think it safe to say that if the conduct of the defendant during the years 1892 and 1893 had furnished any ground for suspicion the plaintiff would have been able to produce evidence thereof at the trial.   She did not do so.  The lack of this evidence destroys the theory of the court below and of the  appellee that the defendant expelled the plaintiff from his house because he was tired of her and desired the company of other women.   That theory is entirely inadequate to explain the sudden termination of their marital relations.

The event is, however, to our minds, correctly explained by the testimony  of the defendant.  The separation and the letter written by  the  plaintiff from which we have quoted can only be explained on the supposition that this testimony of the defendant is true.   He stated that on his return from an inspection of one of his estates his wife's maid gave him a letter in the handwriting of his wife and directed to her lover, a Spanish corporal of the civil guard, named Zabal.   She admitted the genuineness of the letter, fell upon her  knees, and implored him to pardon her. That same day he took her to  the home of her parents, told what had occurred, and left her there.

That the testimony in regard to this letter is not a fabrication of recent date is shown by the evidence of the plaintiff's mother, one of her chief witnesses.   The mother testified that about a year after her daughter was returned to her she heard  that the defendant believed that illicit relations existed between Zabal and the plaintiff on account of a certain letter.  She heard Zabal's name mentioned by a sergeant of  police in 1893 or 1894.  This may have been the sergeant of the civil guard who, according to the testimony of Domingo Jardelesa, was the cause why the latter did not deliver to the plaintiff  a letter intrusted to him for her by Zabal after her separation from her husband.

The evidence of the servants and others who testified to facts conclusively showing the adultery is severely criticised by the court below and the counsel for the plaintiff. That criticism  relates  in a large degree to the matter of time and dates.   If this direct evidence were the only evidence in  the case we should not, perhaps, disturb  the finding of the court.  But when it is in its essential points corroborated by the admitted facts which we have heretofore recited, there is left, in our opinion, no doubt whatever of the guilt of the plaintiff.

It is said that if the plaintiff is guilty the defendant has condoned the offense.   It is not necessary to determine upon this point where the truth lies for two reasons: (1) the court below made no finding of fact on the subject; (2) even if it had found that there was condonation this would not have entitled the plaintiff to a divorce.

By Law 6, title 9, partida 4, the wTife can defeat the husband's suit for divorce by proving that he has pardoned her. But we have found no laws in the partidas which say that the effect of  that pardon would be so far-reaching as  to entitle her to a divorce against him in a case like the present one.  On the contrary it is  expressly provided in Law 8, title 2, partida  4, as  follows: 

"For the sin of each one of them is of itself a bar to an accusation against the other."

Our conclusion is that neither one of the parties is entitled to  a divorce.

The result makes it unnecessary to consider that part  of the judgment  which  relates to  the  settlement of  the conjugal partnership.

Section 497 [1] authorizes us  in cases of this kind "to make such findings upon the facts and render such final judgment as justice and equity require."

The judgment below is reversed, and we find from the evidence the following facts:

(1) The allegations of the complaint as to the marriage of the parties and as to the acts of adultery committed by the defendant are true as therein stated  except as to the date of the adultery committed with Gregoria Bermejo.

(2) The plaintiff, in the summer of 1892, at Talisay, in the Province  of Occidental Negros, committed adultery with one  Zabal, a corporal of the civil guard.

As conclusions of law from the foregoing facts we hold that neither party is entitled to judgment of divorce against the other; that judgment be entered that the plaintiff take nothing by her action  or the defendant  by his cross demand, and that neither party  recover of  the  other any costs either in this court or the Court of First Instance.

Judgment will be entered accordingly  forty  days  from the filing of this decision, and  the case remanded to the court below for execution.   So ordered.

Arellano, C. J., Torres, and Mapa, JJ., concur.
  McDonough, J,, dissents.
  Johnson, J., did not sit in this case.

[1 ] Code of Civil Procedure.



It is immaterial whether a divorce a mensa et thoro is governed by  the provisions contained in Title IV  of  book 1 of the Civil Code, by the  canonical law, or by the  laws of the Partidas.   Under each the causes for divorce are substantially the same, one of which is  for adultery.

The conclusion reached by the majority of the court is that both  plaintiff  and defendant have been  guilty  of adultery, and that therefore neither is entitled to relief.

In entering upon a review of the evidence and a discussion of this  question it is proper to refer to our statute upon the subject of a review by this court, of evidence, and to determine in what cases it  is allowed and  the rules which govern where such review is permitted.

It is provided  in  section  497 of  the  Code of  Civil Procedure  that the Supreme Court shall not review the evidence taken in the court below nor retry the questions of fact except  "*  * *  3.  If the excepting party  filed a motion in  the Court of First Instance for a  new  trial upon the ground that the findings of fact were plainly and manifestly against the weight of evidence, and  the court overruled said motion and due exception was taken to his  overruling  the same, the Supreme Court may review the  evidence."

The motion for a new trial filed in the court below was based upon the ground that the "findings of fact were contrary to the proofs presented on the trial."

Is this a sufficient compliance  with the provisions above cited, it not being stated in the  motion "that the findings of fact were  plainly and manifestly against the  weight of evidence?"

If this provision of the code stood alone, the  failure to comply with this requirement might be regarded  as simply a defect in the motion, but  construed in connection  with the other provisions the question becomes a different one. Under the provisions of section 145 of the Code of Civil Procedure the Court of First Instance may, at any time during the term at which  an action has  been  tried,  set aside the judgment and grant a new trial on the ground that the evidence was insufficient to justify the decision, or that it is against law; but it is expressly provided in this connection by section 146 that the overruling or granting of a motion for a new trial shall not be a ground of exception,  "but shall be deemed to  have been  an act of discretion on  the part of the judge."

But even if the  conclusion should be reached that the motion is sufficient to authorize a review of the evidence, still this court must be restricted in reviewing the evidence and  in retrying the facts by the provisions contained in clause 3, section 499,  and the judgment of the lower court should not be reversed unless  the  findings of the court were plainly and manifestly against the weight of evidence.

It is very clear from these provisions it was the intention of the legislative department that the findings of fact made by a judge of the Court of First Instance should be entitled to all  the  weight that a verdict of a  jury has in those jurisdictions where jury trials prevail, and that the findings of fact, like  the verdict of the jury,  should not be disturbed where the evidence is merely conflicting.  The reason for this is  that the trial court, having tlie witnesses before it, is most competent to  judge of the weight to be attached to their testimony, and that it is not sufficient that the  appellate court, looking at their testimony as it is written down, would have come to a different conclusion.

Where there is  a  direct and substantial conflict, and the determination of a question  depends  on  the credibility and weight, to be given to the testimony  of witnesses, the rule is the court will not set aside the findings even where they might have found the other way.   That the question of credibility of witnesses is for the court below, and not for the appellate court, to determine is supported by decisions of many courts of the United States.

It is on account of the superior means that a trial judge has  by reason of the presence  of the witnesses, and the observance of their demeanor while testifying,  that  such a rule exists.

It appears from the decision  of the trial judge that he placed no little stress upon the  appearance and demeanor of the witnesses.   With  reference to the testimony of the woman Apolonia  Aurelio, upon the credibility of whose testimony the case as to the adultery of the plaintiff largely rests, he says:

"That the testimony  of  this  woman Apolonia  is too uncertain and too suspicious to justify any court in declaring the plaintiff  guilty  of  adultery,  especially  when the worthlessness and the dubious character of the  testimony of the other witnesses for the defendant on this subject increases the probability of the  existence of something in the nature  of  a  conspiracy to  destroy the case of the plaintiff and support that of the defendant in the present case. 

"There are other considerations in the evidence, as  well as in the atmosphere of the court room and the  demeanor of the parties during the trial, which inclined the court to believe at that time  that the true facts of this  case were icith the plaintiff"

Again, he says:

"This  court does not hesitate to say that the attitude of the plaintiff was such as to impress  the court  very favorably in her behalf.   Not a particle of vindictiveness toward the  man   who,  as she believes, has so  unjustly treated her,  was exhibited by her; her entire bearing was that of a modest, retiring,  self-respecting, and conscientious woman."

Again, speaking of the testimony of the woman Apolonia, he says: 

"The plaintiff and the plaintiff's mother both swore  that this  woman,  Apolonia, never commenced to work for the plaintiff until after  the  year 1893, after the couple  had separated, and that she was then sent by the husband to the wife as  a servant.   The wife also  says that trouble arose between her and this  woman, Apolonia, subsequent to 1893, by reason of the fact that Apolonia was about to marry a man whom the wife disliked.   This  statement is not denied by any of the defendant's witnesses.  It therefore shows that a motive exists on the part of this woman, Apolonia, to injure the wife.   There is also evidence in the ease tending to show that this  woman,  Apolonia,  received a large sum of  money shortly before the trial of this case, which money came from the defendant or some of his agents.  The court, however, does not regard this testimony as of great importance, because it is too vague, hut the other testimony is very important.  The attitude of thv. woman,. Apolonia, on  the witness  stand was apparently hostile to the  plaintiff."

An examination  of the  evidence  of the case  not only shows that the findings  of  fact  by the Court  of First Instance are not plainly and  manifestly against the weight of evidence, but the preponderance of evidence  seems in favor of  the  plaintiff, especially  upon the  question  of condonation.

I shall not  attempt  to  review  the mass  of testimony found in the record.  In view of the many conflicts occurring in the statements of the witnesses, the many inconsistencies in  the testimony of material witnesses, the  suspicion cast upon some of  the witnesses  it is clear  that this is a case in which the trial judge possessed advantages far superior to those of this court in passing upon the credibility of the witnesses who testified in the case,  and gave due weight to such  as were entitled to belief, and tUe rule applies with peculiar force  that an appellate court will not disturb the finding of a trial court when these findings depend upon the credibility of witnesses.

It is stated  in the majority opinion that the conclusion that the plaintiff was guilty of adultery was arrived  at from a consideration chiefly  of  the admitted  facts in  the case, the most  important of  which is a  letter written  by the plaintiff to defendant on March 6, 1899;  that this letter is considered as practically conclusive  against her. The  entire  letter,  extracts  of  which are  given in  the majority opinion, is as follows: 

"MY RESPECTED AND UNFORGETTABLE ESTEBAN  : Pardon that I disturb your  tranquillity, E., that  in the midst of a profound sentiment that afflicts me I find consolation for my profound grief in addressing the man who loved me in the time of my good fortune, and who led me to the altar before the eyes of the Being whom we most  love, God.   Remember me; let fall down a drop of compassion from your soul; look at me back again with your cheerful eyes at the woman who is watching for you.  I know well that you are very disgusted with me, and for just reason   for having claimed my pension.  Be calm;  quiet yourself; reflect for a moment my situation, which I  will explain to you. 

"When you went to Europe mother went to see you to explain our situation to you, and you answered that it had nothing to do with you.  She insulted you, Esteban; you had reason to be offended. 

"Now, regarding my having demanded my pension, you are also in the right, but pardon my impudence in stating what I have to say: 

"I swear to you, E., and call  God to witness, that when you went to Spain my pain  was unbearable, thinking of my misfortune.   I had become completely  desperate, and Orozco wrote and advised me to demand my pension in view of the fact that you were going to reside permanently in Spain; then I finally did commence proceedings in view of my desperate situation, and  nothing further came of the matter during your absence.

"If the Lacsons, who wish me ill, have  told you more they have.made a mistake, for the truth about my comportment is that it can not be complained of.  You can secure information regarding my  conduct during our separation here in Valladolid. 

"I keep yet on my face the shame of what has happened, notwithstanding that it has been already many years since we parted.  Therefore, my husband, forgive me; erase what has happened; remember me for God's love; behold our dark fate; in you I trust my future.

"E., I have heard that you have had some misfortunes. I. send my  sympathy, although  I  am unworthy of your presence.  I also learned from Modesto that you do not wish to have my pension sent.  Do as you  wish.  Good bye, E.; take good care of yourself, and command,

"Your faithful servant, Q, B. S. P.,


"March 6, 1899.

"P.S. - On the lltli of  February papa died, and delivered his soul to God  after  a painful illness."

This letter, upon which so  much stress has been placed in the opinion of the  majority, as showing the guilt of the plaintiff, rather indicates that the writer was in a morbid state of mind, in great distress and dejection  of  spirit, and,  in her own language,  "completely  desperate."  It shows a willingness  to prostrate herself before her husband, to subject herself to his will, to confess any manner of misdoings which  will appease his wrath,  and regain his favor without regard  to  innocence or guilt.  This is evident when she says: "I know that you are  disgusted with me for having claimed my pension" when it is remembered that the wife is entitled to one-half of all property acquired as gains during the marriage, as community property; that at the time this  letter was written, the husband was not only in the enjoyment of a large estate in his separate right but was in the  exclusive  possession and enjoyment of all of the community property accumulated during eight years of  marriage, one-half of which belonged to her, yet we find her confessing  herself as guilty for claiming a small  pittance of what belonged to  her, and apologizing for having taken  at some  previous time steps to compel  him to do that which good conscience  should have dictated to him as just and right.

It is  hard  to conceive that  the letter was the  result of remorse of conscience for sins committed against the husband when it appears from the  record that the  husband, after their .separation, during the space of ten years, maintained illicit relations with no less than four mistresses. three  of whom bore  him offspring; and that there had been a betrayal of the confidence of the wife, a  near relative, when a girl less  than  14 years of age, which fact a sense of shame did not  restrain the defendant  from disclosing in his testimony on the trial of the case.

With reference to the question of condonation, it will be seen from the citation contained in the majority opinion that this doctrine is recognized by Law 6, title 9, partida 4.  It exists in the ecclesiastical law. and is recognized in the United States and England and in all countries where laws of divorce exist.

But it is stated in the majority opinion that there  is no law to be found in the partidas which says that the effect of pardon would be so far-reaching as to make it applicable to this case.

By condonation the offending party is  restored to the same position  he  or she occupied before the offense was committed, the only condition being that the offense  must not be repeated.  To say that  the effect of pardon would not be so far-reaching as to entitle the plaintiff to divorce, in a case like the present one, is equivalent to saying that because the plaintiff has been  once guilty she would forever lose her  right to a divorce for  offenses  of a like character  thereafter committed by  the husband.   This makes condonation conditioned, not only that the parties receiving it will not again commit the same offense, but it adds the further condition that the party granting it shall  forever have the right to commit the same offense himself with impunity.

This  question has often been before the courts.  The American authorities are uniform that a condoned offense, not being sufficient as a cause for divorce, is not a bar to divorce in favor of the plaintiff.  (9 Am.  and Eng  Enc. of Law, 821.)

In Masten vs. Masten (15 N. H.) it is said: "Where the statutes are silent upon this  question the courts hold that as a condoned offense can not be a cause for divorce, therefore it can not be set up as a  bar in recrimination."

In Jones vs. Jones (18 N.  J. Eq., 33) it is said: "It is better to hold that when the  erring party is received  back and forgiven the marriage contract is renewed and begins as res integer, and that it is  for the party and not for the courts to forgive new offenses."

In the case of Gumming vs. Cumming (135 Mass., 390) the court says:

"To hold otherwise would operate to some extent as an encouragement or license to the condoning party to commit offenses against  the  marriage relation;  and would  also tend to give a constant sense of inequality between the parties with respect to their legal rights.  All condonation is in a sense conditional - that is, there is an implied condition that the same offense shall not be repeated.  It is not, however,  attended with the  further  condition that the offender shall be  disqualified from thereafter alleging any ground of complaint for subsequent misconduct  against the condoning party.   No such inequality should be established  by an arbitrary rule  of law applicable to all cases. Condonation restores equality before the law.  If the injured party is willing to forgive the offense  the law may well give full effect to that forgiveness and not extend to such party the temptation, the encouragement, the license to run through the whole calendar of matrimonial offenses, without redress at the hands of the other party.  We have not overlooked the consideration that an original adultery by a libellant may have had the effect to weaken the sense of the  obligation  of the marriage contract on the  part of the libelee, and that for this reason a  divorce under such circumstances ought to be refused.  This consideration  is of weight, and would deserve especial attention if judicial discretion were to be exercised in determining a case, but it is not sufficient to overcome the controlling reasons in favor of the establishment  of a general rule to the contrary."

A finding of the lower court against condonation would have been  plainly and  manifestly against the weight of evidence.

It is shown by  the evidence that the next day after the supposed adultery of the wife the defendant took his wife to the house of her parents,   Andrea de la Rama, the mother of the plaintiff, testifies that when the defendant brought the plaintiff to her house she supposed it  was on a visit; that they remained at her house about a week; that during their stay  the  plaintiff and  defendant slept in the same room, and that there was only one bed in the room that they occupied.

The plaintiff testified that on  this occasion she and her husband remained together at the house of her parents from four to six days; that during this time they slept in the same bed and had matrimonial intercourse.

The defendant de la Kama testified that he remained at the house of the plaintiff's parents one day and two nights; that he occupied the same room and slept in a  different bed.  On being asked by the court as to the length of time he remained with his wife, he stated that he remained there one day and two nights, more or less, and  when asked if he  slept in  the  same room but  in  a  different bed he answered that he was  not sure that there were two beds in the room.

This  court has not only reversed  the judgment of the trial court but has entered a judgment against the plaintiff.

It is  true that the  court may, in the exercise of its appellate jurisdiction, affirm, reverse, or modify any final judgment and may  direct the proper judgment to be entered, but where there has been failure of the lower court to make a sufficient finding of fact, or where there are defects or omissions in the pleadings  which may be remedied by amendment, or where  there is a possibility of supplying defects in the proof, such practice should not be followed.

It is  stated in the  opinion that it is unnecessary  to pass upon  the question of condonation  for  two  reasons: (1)  The court below made no findings of fact on  the subject.  (2)  Even if  the court  had found that there was condonation, this would not have entitled the plaintiff to a divorce.

I have before attempted to answer the last objection. As  to the  first objection that  is,  that  the lower  court made no findings on the subject  if this  be true the case should be reversed in order that a finding be made.

To deprive the plaintiff of the judgment which she has obtained and make a final determination of the case here without giving her an opportunity of correcting this error, if such exists, is inequitable and unjust.