BEN VS. O’BRIEN Case Digest


LEUNG BEN VS. P. J. O’BRIEN, JAMES A. OSTRAND and GEO. R. HARVEY, Judges of First Instance of the City of Manila

April 6, 1918


FACTS: On December 12, 1917, an action was instituted in the Court of First Instance of Manila by P.J. O’Brien to recover of Leung Ben the sum of P15,000, all alleged to have been lost by the plaintiff to the defendant in a series of gambling, banking, and percentage games conducted during the two or three months prior to the institution of the suit. The plaintiff asked for an attachment against the property of the defendant, on the ground that the latter was about to depart from the Philippines with intent to defraud his creditors. This attachment was issued. The provision of law under which this attachment was issued requires that there should be a cause of action arising upon contract, express or implied. The contention of the petitioner is that the statutory action to recover money lost at gaming is not such an action as is contemplated in this provision, and he insists that the original complaint shows on its face that the remedy of attachment is not available in aid thereof; that the Court of First Instance acted in excess of its jurisdiction in granting the writ of attachment; that the petitioner has no plain, speedy, and adequate remedy by appeal or otherwise; and that consequently the writ of certiorari supplies the appropriate remedy for this relief.

ISSUE: Whether or not the statutory obligation to restore money won at gaming is an obligation arising from contract, express or implied.

RULING: Yes. In permitting the recovery money lost at play, Act No. 1757 has introduced modifications in the application of Articles 1798, 1801, and 1305 of the Civil Code.

The first two of these articles relate to gambling contracts, while article 1305 treats of the nullity of contracts proceeding from a vicious or illicit consideration. Taking all these provisions together, it must be apparent that the obligation to return money lost at play has a decided affinity to contractual obligation; and the Court believes that it could, without violence to the doctrines of the civil law, be held that such obligations is an innominate quasi-contract.

It is however, unnecessary to place the decision on this ground. In the opinion of the Court, the cause of action stated in the complaint in the court below is based on a contract, express or implied, and is therefore of such nature that the court had authority to issue the writ of attachment. The application for the writ of certiorari must therefore be denied and the proceedings dismissed.



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