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[No. 13602. April 6, 1918.]

LEUNG BEN, plaintiff, vs. P. J. O'BRIEN ; JAMES A.

OSTRAND and GEO. R. HARVEY, judges of First Instance
of the city of Manila, defendants.

1. CERTIORARI; ISSUANCE OF ATTACHMENT

WITHOUT STATUTORY AUTHORITY.—Where a Court
of First Instance issues an attachment for which there is
no statutory authority, it is acting irregularly and in
.excess of its jurisdiction in the sense necessary to justify
the Supreme Court in entertaining an application for a
writ of certiorari and quashing the attachment.

2. ID.; ID.; INADEQUATE REMEDY.—In such case the

remedy on the attachment bond or by appeal would not be
sufficiently speedy to meet the exigencies of the case.
Attachment is an exceedingly violent measure and its
unauthorized issuance may result in the infliction of
damage which could never be repaired by any pecuniary
award at the final hearing.

3. ID.; ID.; DISTINCTION BETWEEN JURISDICTION

OVER PRINCIPAL CAUSE AND OVER ANCILLARY
REMEDY.—There is a clear distinction to be noted
between the jurisdiction of a Court of First Instance with
respect to the principal cause of action and its jurisdiction
to grant an auxiliary remedy, like attachment. A court,
although it may have unquestioned jurisdiction over the
principal cause of action, may nevertheless act irregularly
or in excess of its jurisdiction in granting the auxiliary
remedy. In such case the party aggrieved may prosecute a
proceeding by writ of certiorari in the Supreme Court.
(Herrera vs. Barretto and Joaquin, 25 Phil. Rep., 245,
distinguished.)

4. CONTRACT; IMPLIED CONTRACT.—The obligation

imposed by Act No. 1757 upon the winner in a prohibited
game to return to the loser the money or other thing of
value won at play is an "implied contract," as this term is
used in subsection (1) of section 412 of the Code of Civil
Procedure.

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5. ATTACHMENT; CAUSE OF ACTION ARISING UPON

CONTRACT, EXPRESS OR IMPLIED.—In an action
brought pursuant to the provisions

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Leung Ben vs. O'flrien.

of Act No. 1757 to recover a sum of money lost at play, an

attachment was obtained in the Court of First Instance
under section 424 in connection with subsection 1 of
section 412 of the Code of Civil Procedure. These
provisions authorize the issuance of an attachment in an
action for the recovery of money on a cause of action
arising upon contract, express or implied, when the
defendant is about to depart from the Philippine Islands.
Held: That the cause of action arose upon an implied
contract and that the action of the court in issuing the
attachment would not be annulled by the Supreme Court
in a proceeding by writ of certiorari.

ORIGINAL ACTION in the Supreme Court. Certiorari.

The facts are stated in the opinion of the .Court.
Thos. D. Aitken and W. A. Aymstrong, for plaintiff.
Kincaid & Perkins, for defendants.

STREET, J.:

This is an application for a writ of certiorari, the purpose of

which is to quash an attachment issued from the Court of
First Instance of the City of Manila under circumstances
hereinbelow stated.
Upon December 12, 1917, an action was instituted in the
Court of First Instance of the city of Manila by P. J.
O'Brien to recover of Leung Ben the sum of P15,000,
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. In his verified complaint the plaintiff
asked for an attachment, under sections 424 and 412 (1) of
the Code of Civil Procedure, against the property of the
defendant, on the ground that the latter was about to
depart from the Philippine Islands with intent to defraud
his creditors. This attachment was issued; and acting
under the authority thereof, the sheriff attached the sum of

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P15,000 which had been deposited by the defendant with

the International Banking Corporation.
The defendant thereupon appeared by his attorney and
moved the court to quash the attachment. Said motion
having been dismissed in the Court of First Instance, the
petitioner, Leung Ben, the defendant in that action, pre-

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Leung Ben vs. O'Brien.

sented to this court, upon January 8, 1918, his petition for

the writ of certiorari directed against P. J. O'Brien and the
judges of the Court of First Instance of the city of Manila
whose names are. mentioned in the caption hereof. The
prayer is that the Honorable James A. Ostrand, as the
judge having cognizance of the action in said court (P. J.
O'Brien vs. Leung Ben) be required to certify the record to
this court for review and that the order of attachment
which had been issued should be revoked and discharged,
with costs. Upon the filing of said petition in this court the
usual order was entered requiring the defendants to show
cause why the writ should not issue. The response of the
defendants, in the nature of a demurrer, was filed upon
January 21, 1918; and the matter is now heard upon the
pleadings thus presented.
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 therefore 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 his relief.
The case presents the two following questions of law,
either of which, if decided unfavorably to the petitioner,
will be fatal to his application:

(1) Supposing that the Court of First lnstance has

granted an attachment for which there is no
statutory authority, can this court entertain the
present petition and grant the desired relief ?
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(2) Is the statutory obligation to restore money won at

gaming an obligation arising from "contract,
express or implied?"

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We are of the opinion that the answer to the first question

should be in the affirmative. Under section 514 of the Code
of Civil Procedure the Supreme Court has original
jurisdiction by the writ of certiorari over the proceedings of
Courts of First Instance, "wherever said courts have
exceeded their jurisdiction and there is no plain, speedy,
and adequate remedy." In the same section, it is further
declared that the proceedings in the Supreme Court in such
cases shall be as prescribed for Courts of First Instance in
sections 217-221, inclusive, of said Code. This has the effect
of incorporating into the practice of the Supreme Court, so
far as applicable, the provisions contained in those sections
to the same extent as if they had been reproduced verbatim
immediately after section 514. Turning to section 217, we
find that, in defining the conditions under which certiorari
can be maintained in a Court of First Instance,
substantially the same language is used as is found in
section 514 relative to the conditions under which the same
remedy can be maintained in the Supreme Court, namely,
when the inferior tribunal has exceeded its jurisdiction and
there is no appeal, nor any plain, speedy, and adequate
remedy. In using these expressions the author of the Code
of Civil Procedure merely adopted the language which, in
American jurisdictions at least, had long ago reached the
stage of a stereotyped formula.
In section 220 of the same Code, we have a provision
relative to the final proceedings in certiorari, and herein it
is stated that the court shall determine whether the inf
erior tribunal has regularly pursued its authority and that
if it finds that such inferior tribunal has not regularly
pursued its authority, it shall give judgment, either
affirming, annulling, or modifying the proceedings below,
as the law requires. The expression, "has not regularly
pursued its authority," as here. used, is suggestive, and we
think it should be construed in connection with the other
expressions "have exceeded their jurisdiction," as used in
section 514, and "has exceeded the jurisdiction," as used in

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section 217. Taking the three together, it results in our

opinion
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that any irregular exercise of judicial power by a Court of

First Instance, in excess of its lawful jurisdiction, is
remediable by the writ of certiorari, provided there is no
other plain, speedy, ,and adequate remedy; and in order to
make out a case for the granting of the writ it is not
necessary that the court should have acted in the matter
without any jurisdiction whatever. Indeed the repeated use
of the expression "excess of jurisdiction" shows that the
lawmaker contemplated the situation where a court,
having jurisdiction, should irregularly transcend its
authority as well as the situation where the court is totally
devoid of lawful power.
It may be observed in this connection that the word
"jurisdiction," as used in attachment cases, has reference
not only to the authority of the court to entertain the
principal action but also to its authority to issue the
attachment, as dependent upon the existence of the
statutory ground. (6 C. J., 89.) This distinction between
jurisdiction over the main cause and jurisdiction to issue
the attachment as an ancillary remedy incident to the
principal litigation is of importance; as a court's
jurisdiction over the main action may be complete, and yet
it may lack authority to grant an attachment as ancillary
to such action. This distinction between jurisdiction over
the principal proceeding and jurisdiction over the ancillary
has been recognized by this court in connection with
actions involving the appointment of a receiver. Thus, in
Rocha & Co. vs. Crossfield and Figueras (6 Phil. Rep., 355),
a receiver had been appointed without legal justification. It
was held that the order making the appointment was
beyond the jurisdiction of the court; and though the court
admittedly had jurisdiction of the main cause, the order
was vacated by this court upon application for a writ of
certiorari. (See Blanco vs. Ambler, 3 Phil. Rep., 358, Blanco
vs. Ambler and McMicking 3 Phil. Rep., 735; Yangco vs.
Rohde, 1 Phil. Rep., 404.)
By parity of reasoning it must follow that when a court
issues a writ of attachment for which there is no statutory
authority, it is acting irregularly and in excess of its

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jurisdiction, in the sense necessary to justify the Supreme

Court in granting relief by the writ of certiorari. In
applying this proposition it is of course necessary to take
account of the difference between a ground of attachment
based on the nature of the action and a ground of
attachment based on the acts or the condition of the
defendant. Every complaint must show a cause of action of
some sort; and when the statute declares that the
attachment may issue in an action arising upon contract,
express or implied, it announces a criterion which may be
determined from an inspection of the language of the
complaint. The determination of this question is purely a
matter of law. On the other hand, when the statute
declares that an attachment may be issued when the
defendant is about to depart from the Islands, a criterion is
announced which is wholly foreign to the cause of action;
and the determination of it may involve a disputed
question of fact which must be decided by the court. In
making this determination, the court obviously acts within
its powers; and it would be idle to suppose that the writ of
certiorari would be available to reverse the action of a
Court of First Instance in determining the sufficiency of the
proof on such a disputed point, and in granting or refusing
the attachment accordingly.
We should not be understood, in anything that has been
said, as intending to infringe the doctrine enunciated by
this court in Herrera vs. Barretto and Joaquin (25 Phil.
Rep., 245), when properly applied. It was there held that
we would not, upon an application for a writ of certiorari,
dissolve an interlocutory mandatory injunction that had
been issued in a. Court of First Instance as an incident in
an action of mandamus. The issuance of an interlocutory
injunction depends upon conditions essentially different
from those involved in the issuance of an attachment. The
injunction is designed primarily for the prevention of
irreparable injury and the use of the remedy is in a great
measure dependent upon the exercise of discretion.
Generally speaking, it may be said that the exercise of the

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Leung Ben vs. O'Bfien.

injunctive power is inherent in judicial authority; and

ordinarily it would be impossible to distinguish between
the jurisdiction of the court in the main litigation and its'
jurisdiction to grant an interlocutory injunction, for the
latter is involved in the former. That the writ of certiorari
can not be used to reverse an order denying a motion for a
preliminary injunction is of course not open to cavil. (Somes
vs. Crossfield and Molina, 8 Phil. Rep., 284.)
But it will be said that the writ of certiorari is not
available in this case, because the petitioner is protected by
the attachment bond, and that he has a plain, speedy, and
adequate remedy by appeal. This suggestion seems to be
sufficiently answered in the case of Rocha & Co. vs.
Crossfield and Figueras (6 Phil. Rep., 355), already referred
to, and the earlier case there cited. The remedy by appeal is
not sufficiently speedy to meet the exigencies of the case.
An attachment is extremely violent, and its abuse may
often result in the infliction of damage which could" never
be repaired by any pecuniary award at the final hearing.
To postpone the granting of the writ in such a case until
the final hearing and to compel the petitioner to bring the
case here upon appeal merely in order to correct the action
of the trial court in the matter of allowing the attachment
would seem both unjust and unnecessary.
Passing to the problem propounded in the second
question it may be observed that, • upon general
principles, recognized both in the civil and common law,
money lost in gaming and voluntarily paid by the loser to
the winner can not, in the absence of statute, be recovered
in a civil action. But Act No. 1757 of the Philippine
Commission, which defines and penalizes several forms of
gambling, contains numerous provisions recognizing the
right to recover money lost in gambling or in the playing of
certain games (secs. 6, 7, 8, 9, 11). The original complaint
in the action in the Court of First Instance is not clear as to
the particular section of Act No. 1757 under which the
action is brought, but it is alleged that the money was lost
at gambling, banking, and percentage game in which the
defendant was
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banker. It must therefore be assumed that the action is

based upon the right of recovery given in section 7 of said
Act, which declares that an action may be brought against
the banker by any person losing money at a banking or
percentage game.
Is this a cause of action arising upon contract, "express
or implied," as this term is used in section 412 of the Code
of Civil Procedure? To begin the discussion, the English
version of the Code of Civil Procedure is controlling (sec,
15, Admin. Code, ed. of 1917). Furthermore, it is
universally admitted to be proper in the interpretation of
any statute, to consider its historical antecedents and its
jurisprudential sources. The Code of Civil Procedure, as is
well known, is an American contribution to Philippine
legislation. It therefore speaks the language of the
common-law and for the most part reflects its ideas. When
the draftsman of this Code used the expression "contract,
express or implied," he used a phrase that has been long
current among writers on American and English law; and
it is therefore appropriate to resort to that system of law to
discover the meaning which the legislator intended to
convey by those terms. We remark in passing that the
expression "contrato tácito," used in the official translation
of the Code of Civil Procedure as the Spanish equivalent of
"implied contract," does not appear to render the full sense
of the English expression.
The English contract law, so far as relates to simple
contracts (i. e. contracts not evidenced by a sealed
instrument or a judicial record), is planted upon two
foundations, which are supplied by two very different
conceptions of legal liability. These two conceptions are
revealed in the ideas respectively underlying (1) the
common-law debt and (2) the assumptual promise. In the
early and formative stages of the common-law the only
simple contract of which the courts took account was the
real contract or contract re, in which the contractual duty
imposed by law arises upon the delivery of a chattel, as in
the mutuum, commodatum, depositum, and the like; and
the purely consensual agree-

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ments of the Roman Law found no congenial place in the

early common law system.

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In course of time the idea underlying the contract re was

extended so as to include all cases where there was
something of value passing from one person to another
under such circumstance as to constitute a justa, causa
debendi. The obligation thereby created was a debt. The
constitutive element in this obligation is found in the fact
that the debtor has received something from the creditor,
which he is bound by the obligation of law to return or pay
for. From an early day this element was denominated the
quid pro quo, an ungainly phrase coined by Mediaeval
Latinity. The quid pro quo was primarily a material or
physical object, and it constituted the recompense or
equivalent acquired by the debtor. Upon the passage of the
quid pro quo from one party to the other, the law imposed
that real contractual duty peculiar to the debt. No one
conversant with the early history of the English law would
ever conceive of the debt as an obligation created by
promise. It is the legal duty to pay or deliver a sum certain
of money or an ascertainable quantity of ponderable or
measurable chattels.
The ordinary debt, as already stated, originates in a
contract in which a quid pro quo passes to the debtor at the
time of the creation of the debt, but the term is equally
applicable to duties imposed by custom, or statute, or by
judgment of a court.
The existence of a debt supposes one person to have
possession of a thing (res) which he owes and hence ought
to turn over the owner. This obligation is the oldest
conception of contract with which the common law is
familiar; and notwithstanding the centuries that have
rolled over Westminster Hall that conception remains as
one of the fundamental bases of the common-law contract.
Near the end of the fifteenth century there was evolved
in England a new conception of contractual liability, which
embodied the idea of obligation resulting from promise and
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which found expression in the common law assumpsit, or

parol promise supported by a consideration. The
application of this novel conception had the effect of greatly
extending the field of contractual liability and by this
means rights of action came to be recognized which had
been unknown before. The action of assumpsit which was
the instrument for giving effect to this obligation was found
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to be a useful remedy; and presently this action came to be

used for the enforcement of common-law debts. The result
was to give to our contract law the superficial appearance
of being based more or less exclusively upon the notion of
the obligation of promise.
An idea is widely entertained to the effect that all simple
contracts recognized in the common-law system are
referable to a single category. They all have their roots, so
many of us imagine, in one general notion of obligation;
and of course the obligation of promise is supposed to
supply this general notion, being considered a sort of
menstruum in which all other forms of contractual
obligation have been dissolved. This is a mistake. The idea
of contractual duty embodied in the debt, which was the
first conception of contract liability revealed in the common
law, has remained, although it was destined to be in a
measure obscured by the more modern conception of
obligation resulting from promise.
What has been said is intended to exhibit the, fact that
the duty to pay or deliver a sum certain of money or an
ascertainable quantity of ponderable or measurable
chattels—which is indicated by the term debt—has ever
been recognized, in the common-law system, as a true
contract, regardless of the source of the duty or the manner
in which it is created—whether derived from custom,
statute or some consensual transaction depending upon the
voluntary acts of the parties. The form of contract known
as the "debt" is of most ancient lineage; and when reference
is had to historical antecedents, the right of the debt to be
classed as a contract cannot be questioned. Indeed when
the new form of engagement consisting of the parol promise
sup-
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ported by a consideration first appeared, it was looked

upon as an upstart and its right to be considered a true
contract was questioned. It was long customary to refer to
it exclusively as an assumpsit, agreement, undertaking, or
parol promise, in fact anything but a contract. Only in time
did the new form of engagement attain the dignity of being
classed among true contracts.
The term "implied contract" takes us into the shadowy
domain of those obligations the theoretical classification of
which has engaged the attention of scholars from the time
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of Gaius until our own day and has been a source of as

much difficulty to the civilian as to the common-law jurist.
Here we are concerned with those acts which make one
person debtor to another without there having intervened
between them any true agreement tending to produce a
legal bond (vinculum juris). Of late years some American
and English legal writers have adopted the term
quasicontract as descriptive of these obligations or some of
them; but the expression more commonly used is "implied
contract."
Upon examination of these obligations, from the view
point of the common-law jurisprudence, it will be found
that they fall readily into two divisions, according as they
bear an analogy to the common-law debt or to the
commonlaw assumpsit: To exhibit the scope of these
different classes of obligations is here impracticable. It is
only necessary in this connection to observe that the most
conspicuous division is that which comprises duties in the
nature of debt. The characteristic feature of these
obligations is that upon certain states of fact the law
imposes an obligation to pay a sum certain of money; and it
is characteristic of this obligation that the money in respect
to which the duty is raised is conceived as being the
equivalent of something taken or detained under
circumstances giving rise to the duty to return or
compensate therefor. The proposition that no one shall be
allowed to enrich himself unduly at the expense of another
embodies the general principle here lying at the basis of
obligation. The right
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to recover money improperly paid (repetición de lo

indebido) is also recognized as belonging to this class of
duties.
It will be observed that according to the Civil Code
(article 1089) obligations are supposed to be derived either
from (1) the law, (2) contracts and quasi-contracts, (3) illicit
acts and omissions, or (4) acts in which some sort of blame
or negligence is present. This enumeration of the sources of
obligations supposes that the quasi-contractual obligation
and the obligation imposed by law are of different types.
The learned Italian jurist, Jorge Giorgi, criticises this
assumption and says that the classification embodied in
the code is theoretically erroneous. His conclusion is that
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one or the other of these categories should have been

suppressed and merged in the other. (Giorgi, Teoria de las
Obligaciones, Spanish ed., vol. 5 arts. 5, 7, 9.) The validity
of this criticism is, we think, self-evident; and it is of
interest to note that the common law makes no distinction
between the two sources of liability. The obligations which
in the Code are indicated as quasi-contracts, as well as
those arising ex lege, are in the common law system merged
into the category of obligations imposed by law, and all are
denominated implied contracts.
Many refinements, more or less illusory, have been
attempted by various writers in distinguishing different
sorts of implied contracts, as, for example, the contract
implied as of fact and the contract implied as of law (or
constructive contract). No explanation of these distinctions
will be here attempted. Suffice it to say that the term
"contract, express or implied" is used by common-law
jurists to include all purely personal obligations other than
those which have their source in delict, or tort. As to these
it may be said that, generally speaking, the law does not
impose a contractual duty upon a wrongdoer to compensate
for injury done. It is true that in certain situations where a
wrongdoer unjustly acquires something at the expense of
another, the law imposes on him a duty to surrender his
unjust acquisitions, and the injured party may here elect to
sue upon this contractual duty instead of suing upon
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the tort; but even here the distinction between the two
liabilities, in contract and in tort, is never lost to sight; and
it is always recognized that the liability arising out of the
tort is delictual and not of a contractual or quasi-
contractual nature.
In the case now under consideration the duty of the
defendant to refund the money which he won from the
plaintiff at gaming is a duty imposed by statute. It
therefore arises ex lege. Furthermore, it is a duty to return
a certain sum which had passed from the plaintiff to the
defendant. By all the criteria which the common law
supplies, this is a duty in the nature of debt and is properly
classified as an implied contract. It is well-settled by the
English authorities that money lost in gambling or by
lottery, if recoverable at all, can be recovered by the loser in
an action of indebitatus assumpsit for money had and
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received. (Clarke vs. Johnson, Lofft, 759; Mason vs. Waite,

17 Mass., 560; Burnham vs. Fisher, 25 Vt., 5l4.) This
means that in the common law the duty to return money
won in this way is an implied contract, or quasi-contract.
It is no argument to say in reply to this that the
obligation here recognized is called an implied contract
merely because the remedy commonly used in suing upon
ordinary contracts can be here used, or that the law
adopted the fiction of a promise in order to bring the
obligation within the scope of the action of assumpsit. Such
statements fail to express the true import of the
phenomenon. Before the remedy was the idea; and the use
of the remedy could not have been approved if it had not
been for historical antecedents which made the recognition
of this remedy at once logical and proper. Furthermore, it
should not be forgotten that the question is not how this
duty came to be recognized in the common law as a
contractual duty but what sort of obligation did the author
of the Code of Civil Procedure intend to describe when he
used the term implied contract in section 412.
In what has been said we have assumed that the
obligation which is at the foundation of the original action
in the

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court below is not a quasi-contract, when judged by the

principles of the civil law. A few observations will show
that this assumption is not by any means free from doubt.
The obligation in question certainly does not fall under the
definition of either of the two quasi-contracts which are
made the subject of special treatment in the Civil Code, for
it does not arise from a licit act as contemplated in article
1887 and the money was not paid under error as
contemplated in article 1895. The obligation is clearly a
creation of the positive law—a circumstance which brings it
within the purview of article 1090, in relation with article
1089; and it is also derived from an illicit act, namely, the
playing of a prohibited game. It is thus seen that the
provisions of the Civil Code which might be consulted with
a view to the correct theoretical classification of this
obligation are unsatisfactory and confusing.
The two obligations treated in the chapter devoted to
quasi-contracts in the Civil Code are: (1) The obligation
incident to the officious management of the affairs of other
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persons (gestión de negocios ajenos) and (2) the recovery of

what has been improperly paid (cobro de lo indebido). That
the authors of the Civil Code selected these two obligations
for special treatment does not signify an intention to deny
the possibility of the existence of other quasi-contractual
obligations. As is well said by the commentator Manresa.

"The number of the quasi-contracts may be indefinite as may be

the number of lawful facts, the generations of the said obligations;
but the Code, just as we shall see further on, in the
impracticableness of enumerating or including them all in a
methodical and orderly classification, has concerned itself with
two only—namely, the management of the affairs of other persons
and the recovery of things improperly paid—without attempting
by this to exclude the others." (Manresa, 2d ed., vol. 12, p. 549.)

It would indeed have been surprising if the authors of the

Code, in the light of the jurisprudence of more than a
thousand years, should have arbitrarily assumed to limit
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Leung Ben vs. O'Brien.

the quasi-contracts to two obligations. The author from

whom we have just quoted further observes that the two
obligations in question were selected for special treatment
in the Code not only because they were the most
conspicuous of the quasi-contracts, but because they had
not been the subject of consideration in other parts of the
Code. (Opus citat., p. 550.)
It is well recognized among civilian jurists that the
quasi-contractual obligations cover a wide range. The
Italian jurist, Jorge Giorgi, to whom we have already
referred, considers under this head, among other
obligations, the following: payments made upon a future
consideration which is not realized, or upon an existing
consideration which fails; payments wrongfully made upon
a consideration which is contrary to law, or opposed to
public policy; and payments made upon a vicious
consideration or obtained by illicit means (Giorgi, Teoria de
las Obligaciones, vol. 5, art. 130.)
In permitting the recovery of 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

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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 obligations; and we believe 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.
From what has been said it follows that in our opinion
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. So ordered.

Arellano, C. J., Torres, Joknson, and Carson, JJ.,

concur.

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VOL. 38, APRIL 6, 1918 197

Leung Ben vs. O'Brien.

MALCOLM, J., concurring:

As I finished reading the learned and interesting decision

of the majority, the impression which remained was that
the court was enticed by the nice and unusual points
presented to make a hard case out of an easy one, and
unfortunately to do violence to the principles of certiorari.
The simple questions are: Did the Court of First Instance of
the city of Manila exceed its jurisdiction in granting an
attachment against the property of the defendant, now
plaintiff ? Has this defendant, now become the plaintiff,
any other plain, speedy, and adequate remedy? The
answers are found in the decision of this court, in Herrera
vs. Barretto and Joaquin ([1913], 25 Phil., 245), from which
I quote the following:
"It has been repeatedly held by this court that a writ of
certiorari will not be issued unless it clearly appears that
the court to which it is to be directed acted without or in
excess of jurisdiction. It will not be issued to cure errors in
the proceedings or to correct erroneous conclusions of law
or of fact. If the court has jurisdiction of the subject matter
and of the person, decisions upon all questions pertaining
to the cause are decisions within its jurisdiction and,
however irregular or erroneous they may be, cannot be
corrected by certiorari. The Code of Civil Procedure giving
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Courts of First Instance general jurisdiction in actions for

mandamus, it goes without saying that the Court of First
Instance had jurisdiction in the present case to resolve
every question arising in such an action and to decide every
question presented to it which pertained to the cause. It
has already been held by this court that, while it is a power
to be exercised only in extreme cases, a Court of First
Instance has power to issue a mandatory injunction to
stand until the final determination of the action in which it
is issued. While the issuance of the mandatory injunction
in this particular case may have been irregular and
erroneous, a question concerning which we express no
opinion, nevertheless its issuance was within the
jurisdietion of the court and its action is not reviewable on
eer-
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198 PHILIPPINE REPORTS ANNOTATED

Leung Ben vs. O'Brien.

tiorari. It is not sufficient to say that it was issued

wrongfully and without sufficient grounds and in the
absence of the other party. The question is, Did the court
act with jurisdiction?
"It has been urged that the court exceeded its
jurisdiction in requiring the municipal president to issue
the license, for the reason that he was not the proper
person to issue it and that, if he was the proper person, he
had the right to exercise a discretion as to whom the
license should be issued. We do not believe that either of
these questions goes to the jurisdiction of the court to act.
One of the fundamental questions in a mandamus against
a public officer is whether or not that officer has the right
to exercise discretion in the performance of the act which
the plaintiff asks him to perform. It is one of the essential
determinations of the cause. To claim that the resolution of
that question may deprive the court of jurisdiction is to
assert a novel proposition. It is equivalent to the contention
that a court has jurisdiction if he decides right but no
jurisdiction if he decides wrong. It may be stated generally
that it is never necessary to decide the fundamental
questions of a cause to determine whether the court has
jurisdiction. The question of jurisdiction is preliminary and
never touches the merits of the case. The determination of
the fundamental questions of a cause are merely the
exercise of a jurisdiction already conceded. In the case at
bar no one denies the power, authority, or jurisdiction of
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the Court of First Instance to take cognizance of an action

for mandamus and to decide every question which arises in
that cause and pertains thereto. The contention that the
decision of one of those questions, if wrong, destroys
jurisdiction involves an evident contradiction.
"Jurisdiction is the authority to hear and determine a
cause—the right to act in a case, Since it is the power to
hear and determine, it does not depend either upon the
regularity of the exercise of that power or upon the
rightfulness of the decisions made. Jurisdiction should
therefore be distinguished from the exercise of jurisdiction.
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VOL. 38, APRIL 6,. 1918 199

Leung Ben vs. O'Brien.

The authority to decide a cause at all, and not the decision

rendered therein, is what makes up jurisdiction. Where
there is jurisdiction of the person and subject matter, as we
have said before, the decision of all other questions arising
in the case is but an exercise of that jurisdiction."
Then follows an elaborate citation and discussion of
American authorities, including a decision of the United
States Supreme Court and of the applicable Philippine
cases. The decision continues:
"The reasons given in these cases last cited for the
allowance of the writ of prohibition are applicable only to
the class of cases with which the decisions deal and do not
in any way militate against the general proposition herein
asserted. Those which relate to election contests are based
upon the principle that those proceedings are special in
their nature and must be strictly followed, a material
departure from the statute resulting in a loss, or in an
excess, of jurisdiction. The cases relating to receivers are
based, in a measure, upon the same principle, the
appointment of a receiver being governed by the statute;
and in part upon the theory that the appointment of a
receiver in an improper case is in substance a bankruptcy
proceeding, the taking of which is expressly prohibited by
law. The case relative to the allowance of alimony pendente
lite when the answer denies the marriage is more difficult
to distinguish. The reasons in support of the doctrine laid
down in that case are given in the opinion in full and they
seem to place the particular case to which they refer in a
class by itself.
"It is not a light thing that the lawmakers have
abolished writs of error and with them certiorari and
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prohibition, in so far as they were methods by which the

mere errors of an inferior court could be corrected. As
instruments to that end they no longer exist. Their place is
now taken by the appeal. So long as the inferior court
retains jurisdiction its errors can be corrected only by that
method. The office of the writ of certiorari has been reduced
to the correction of defects of jurisdiction solely and cannot
le-
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200 PHILIPPINE REPORTS ANNOTATED

Leung Ben vs. O'Brien.

gally be used for any other purpose. It is truly an

extraordinary remedy and, in this jurisdiction, its use is
restricted to truly extraordinary cases—cases in which the
action of the inferior court is wholly void; where any
further steps in the case would result in a waste of time
and money and would produce no result whatever; where
the parties, or their privies, would be utterly deceived;
where a final judgment or decree would be nought but a
snare and a delusion, deciding nothing, protecting nobody,
a judicial pretension, a recorded falsehood, a standing
menace. It is only to avoid such results as these that a writ
of certiorari is issuable; and even here an appeal will lie if
the aggrieved party prefers to prosecute it.

"A full and thorough examination of all the decided cases in this
court touching the question of certiorari and prohibition fully
supports the proposition already stated that, where a, Court of
First Instance has jurisdiction of the subject matter and of the
person, its decision of any question pertaining to the cause,
however erroneous, cannot be reviewed by certiorari, but must be
corrected by appeal."

I see no reason to override the decision in Herrera vs.

Barretto and Joaquin (supra). Accordingly, I can do no
better than to make the language of Justice Moreland my
own. Applying these principles, it is self-evident that this
court should not entertain the present petition and should
not grant the desired relief.

FISHER, J., with whom concurs AVANCEÑA, J.,

dissenting:

I am in full accord with the view that the remedy of

certiorari may be invoked in such cases as this, but I am

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constrained to dissent from the opinion of the majority as

regards the meaning of the term "implied contract."
Section 412 of the Code of Civil Procedure, in connection
with section 424, authorizes the preliminary attachment of
the property of the defendant: "(1) In an action for the
recovery of money or damages on a cause of action arising
upon contract, express or implied, when the defendant is
about to depart from the Philippine Islands, with intent to
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VOL. 38, APRIL 6, 1918 201

Leung Ben vs, O'Brien.

defraud his creditors; (2) * * *; (3) * * *; (4) * * *; (5) When

the defendant has removed or disposed of his property, or is
about to do so, with intent to defraud his creditors."
It is evident that the terms of paragraph five of the
article cited are much broader than those of the first
paragraph. The fifth paragraph is not limited to actions
arising from contract, but is by its terms applicable to
actions brought for the purpose of enforcing extra-
contractual rights as well as contractual rights. The
limitation upon cases falling under paragraph five is to be
found, not in the character of the obligation for the
enforcement for which the action is brought, but in the
terms of article 426, which requires that the affidavit show
that "the amount due the plaintiff * * * is as much as the
sum for which the order is granted."
That is to say, when an application is made for a
preliminary attachment upon the ground that the plaintiff
is about to dispose of his property with intent to defraud
his creditors—thus bringing the case within the terms of
paragraph five of the section—it is not necessary to show
that the obligation in suit is contractual in its origin, but it
is sufficient to show that the breach of the obligation, as
shown by the facts stated in the complaint and affidavit,
imposes upon the defendant the obligation to pay a specific
and definite sum. For example, if it is alleged in the
complaint that the defendant by his negligence, has caused
the destruction by fire of a building belonging to plaintiff,
and that such building was worth a certain sum of money,
these facts would show a definite basis upon which to
authorize the granting of the writ. But if it were averred
that the defendant has published a libel concerning the
plaintiff, to the injury of his feelings and reputation, there
is no definite basis upon which to grant an attachment,
because the amount of the damage suffered, being
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necessarily uncertain and indeterminate, cannot be

ascertained definitely until the trial has been completed.
But it appears that the legislature, although it has seen
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Leung Ben vs. O'Brien.

fit to authorize a preliminary attachment in aid of actions

of all kinds when the defendant is concealing his property
with intent to defraud his creditors, has provided that
when the ground of attachment is that the defendant is
about to depart from the country with intent to defraud his
creditors, the writ will issue only when the action in aid of
which it is sought arises from a contract "express or
implied." If an attachment were permitted upon facts
bringing the application within the first paragraph of the
section in support of actions of any kind, whether the
obligation sued upon is contractual or not, then paragraph
five would by construction be made absolutely identical
with paragraph one., and this would be in effect equivalent
to the complete elimination of the last two lines of the first
paragraph. It is a rule of statutory construction that effect
should be given to all parts of the statute, if possible. I can
see no reason why the legislature should have limited cases
falling within the first paragraph to actions arising from
contract and have refrained from imposing this limitation
with respect to cases falling within the terms of the fifth
paragraph, but this should have no effect upon us in
applying the law. Whether there be a good reason for it or
not the distinction exists.
Had the phrase "express or implied" not been used to
qualify "contract," there would be no doubt whateVer with
regard to the meaning of the word. In the Spanish civil law
contracts are always consensual, and it would be
impossible to define as a contract the juridical relation
existing between a person who has lost money at gaming
and the winner of such money, simply because the law
imposes upon the winner the obligation of making
restitution. An obligation of this kind, far from being
consensual in its origin, arises against the will of the
debtor. To call such a relation a contract is, from the
standpoint of the civil law, a contradiction in terms.
But it is said that as the phrase "express or implied" has
been used to qualify the word "contract," and these words
are found in a statute which "speaks the language

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VOL. 38, APRIL 6, 1918 203

Leung Ben vs. O'Brien.

of the common law," this implies the introduction into our

law of the concept of the "implied contract" of the English
common law, a concept which embraces a certain class of
obligations originating ex lege, which have been arbitrarily
classified as contracts, so that they might be enforced by
one of the formal actions of the common law which legal
tradition and practice has reserved for the enforcement of
contract. I cannot concur in this reasoning. I believe that
when a technical juridical term of substantive law is used
in the adjective law of these Islands, we should seek its
meaning in our own substantive law rather than in the law
of America or of England. The Code of Civil Procedure was
not enacted to establish rules of substantive law, but upon
the assumption of the existence of these rules.
In the case of Cayce vs. Curtis (Dallam's Decisions,
Texas Reports, 403), it appears that the legislature, at a
time when that State still retained to a large extent the
Spanish substantive civil law, enacted a statute in which
the word "bond" is used. In litigation involving the
construction of that statute, one of the parties contended
that the word "bond" should be given the technical meaning
which it had in the English Common Law. The court
rejected this contention, saying—
"On the first point it is urged by counsel f or the
appellant that the word 'bond,' used in the statute, being a
common law term, we must refer to the common law for its
legal signification; and that by that law no instrument is a
bond which is not under seal. The truth of the proposition
that sealing is an absolute requisite to the validity of a
bond at common law is readily admitted; but the
applicability of that rule to the case under consideration is
not perceived. This bond was taken at a time when the
common law afforded no rule of decision or practice in this
country, and consequently that law cannot be legitimately
resorted to, even for the purpose for which it is invoked by
the counsel for the appellant, unless it be shown that the
civil law (which under certain modifications was at that
time the law of the land) had no term of similar import; for
we

204

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Leung Ben vs. O'Brien.

regard it as a correct rule of construction, that where

technical terms are used in a statute, they are to be
referred for their signification to terms of similar import in
the system of laws which prevails in the country where the
statute is passed, and not to another system which is
entirely foreign to the whole system of municipal
regulations by which that country is governed. (Martin's
Reports, vol. 3, 185; 7 Martin [N. S.], 162.)"
Consequently, I believe that in the interpretation of the
phrase "contract, express or implied," we should apply the
rules of our own substantive law. The phrase in itself offers
no difficulty. The concept of the contract, under the Civil
Code, as a legal relation of exclusively consensual origin,
offers no difficulty. Nor is any difficulty encounter;ed in the
grammatical sense of the words "express" and "implied."
"Express," according to the New International Dictionary is
"that which is directly and distinctly stated; expressed, not
merely implied or left to inference." Therefore, a contract
entered into by means of letters, in which the offer and the
acceptance have been manifested by appropriate words,
would be an "express contract." The word "imply,"
according to the same dictionary, is "to involve in substance
or essence, or by fair inference, or by construction of law,
when not expressly stated in words or signs; to contain by
implication; to include virtually,"
Therefore, if I enter a tailor shop and order a suit of
clothes, although nothing is said regarding payment, it is
an inference, both logical and legal, from my act that it is
my intention to pay the reasonable value 6f the garments.
The contract is implied, but it is none the less purely
co'nsensual. An implied contract, therefore, is that in which
the consent of the parties is implied.
Manresa, commenting upon article 1262 of the Civil
Code, says:

"The essence of consent is the agreement of the parties concerning

that which is to constitute the contract * * *. The forms of this
agreement may vary according to whether it is expressed verbally
or in writing, by words or

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Leung Ben vs. O'Brien.

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by acts. Leaving the other differences for consideration hereafter,

we will only refer now to those which exist between express
consent and implied consent * * *. It is unquestionable that
implied consent manifested by acts or conduct, produces a
contract * * *."

If it were necessary to have recourse to the English

common law for the purpose of ascertaining the meaning of
the phrase under consideration, we could find many
decisions which gave it the same meaning as that for which
I contend.
"An implied contract is where one party receives benefits
from another party, under such circumstances that the law
presumes a promise on the part of the party benefited to
pay a reasonable price for the same." (Jones vs. Tucker
[Del.], 84 Atlantic, 1012.)
It is true that English courts have extended the concept
of the term "contract" to include certain obligations arising
ex lege without consent, express or implied. True contracts
created by implied consent are designated in the English
common law as "contracts implied in fact," while the so-
called "contracts" in which the consent is a fiction of law
are called "contracts implied by law." But it is evident that
the latter are not real contracts. They have been called
"contracts" arbitrarily by the courts of England, and those
of the United States in which the English common law is in
force, in order that certain actions arising ex lege may be
enf orced by the action of assumpsit. In the rigid formulism
of the English common law the substantive right had to be
accommodated to the form of action. As is stated in the
monograph on the action of assumpsit in Ruling Case Law
(volume 2, p. 743)—
"In theory it was an action to recover for the
nonperformance of simple contracts, and the formula and
proceedings were constructed and carried on accordingly. *
* * From the reign of Elizabeth this action has been
extended to almost every case where an obligation arises
from natural reason, * * * and it is now maintained in
many cases which 'its principles do not comprehend
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206 PHILIPPINE REPORTS ANNOTATED

Leung Ben vs. O'Brien.

and where fictions and intendments are resorted to, to fit

the actual cause of action to the theory of the remedy. Tt is
thus sanctioned where there has been no * * * real
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c6ntract, but where some duty is deemed sufficient to

justify the court in imputing a promise to perform it, and
hence in bending the transaction to the form of action."
In the ancient English common law procedure the form
of the action was regarded as being much more important
than the substantive right to be enforced. If no form of
action was found into which the facts would fit, so much
the worse for the facts! To avoid the injustices to which this
condition of affairs gave rise, the judges invented those
fictions which permitted them to preserve the appearance
of conservatism and change the law without expressly
admitting that they were doing so. The indispensable
averment, without which the action of assumpsit would not
lie, was that the defendant promised to pay plaintiff the
amount demanded. (Sector vs. Holmes, 17 Va., 566.) In true
contracts, whether express or implied, this promise in fact
exists. In obligations arising ex lege there is no such
promise, and therefore the action of assumpsit could not be
maintained, although by reason of its relative simplicity it
was one of the most favored forms of action. In order to
permit the litigant to make use of this form of action for the
enforcement of certain classes of obligations arising ex lege,
the judges invented the fiction of the promise of the
defendant to pay the amount of the obligation, and as this
fictitious promise gives the appearance of consensuality to
the legal relations of the parties, the name of implied
contract is given to that class of extra-contractual
obligations enforcible by the action of assumpsit.
Now, it is not to be supposed that it was the intention of
the Legislature in making use in the first paragraph of
article 412 of the phrase "contract, express or implied" to
corrupt the logical simplicity of our concept of obligations
by importing into our law the antiquated fictions of the
mediaeval English common law. If one of the concepts of
the term "implied contract" in the English common law,
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VOL. 38, APRIL 6, 1918 207

Leung Ben vs. O'Brien.

namely, that in which consent is presumed from the

conduct of the debtor, harmonizes with the concept of the
contract in our law, why should we reject that meaning and
hold that the Legislature intended to use this phrase in the
foreign and illogical sense of a "contract" arising without
consent? This is a civil law country. Why should we be
compelled to study the fictions of the ancient English
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common law, in order to be informed as to the meaning of

the word "contract" in the law of the Philippine Islands?
Much more reasonable to my mind was the conclusion of
the Texas court, under similar circumstances, to the effect
that "Where technical terms are used in a statute they are
to be referred for their signification to terms of similar
import in the system of laws which prevails in the country
where the statute is passed." (Cayce vs. Curtis, supra.)
My conclusion is that the phrase "contract, express or
implied" should be interpreted in the grammatical. sense of
the words and limited to true contracts, consensual
obligations arising from consent, whether expressed in
words, writing or signs, or presumed from conduct. As it is
evident that the defendant in the present case never
promised, expressly or by implication, to return the money
won from him in the gambling game in question, his
obligation to restore the amount so won, imposed by the
law, is not contractual, but purely extra-contractual, and
therefore the action brought not being one arising upon
"contract, express or implied," the plaintiff is not entitled to
a preliminary attachment upon the averment that the
defendant is about to depart from the Philippine Islands
with intent to defraud his creditors, no averment being
made in the complaint or in the affidavit that the
defendant has removed or disposed of his property, or is
about to depart with intent to defraud his creditors, so as to
bring the case within the terms of the fifth paragraph of
section 412.
I am unable to agree with the contention of the
applicant (brief, p. 39) here that the phrase in question
should be interpreted in such a way as to include all
obligations, whether arising from consent or ex lege,
because that is equivalent
208

208 PHILIPPINE REPORTS ANNOTATED

Dee See Choon vs. Stanley.

to eliminating all distinction between the first and the fifth

paragraphs by practically striking out the first two lines of
paragraph one. The Legislature has deliberately
established this distinction, and while we may be unable to
see any reason why it should have been made, it is our duty
to apply and interpret the law, and we are not authorized
under the guise of interpretation to virtually repeal part of
the statute.

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Nor can it be said that the relations between the parties

litigant constitute a quasi contract. In the first place, quasi
contracts are "lawful and purely voluntary acts by which
the authors thereof become obligated in favor of a third
person * * *." (Civil Code, article 1887.) The act which gave
rise to the obligation ex lege relied upon by the plaintiff in
the court below is illicit—an unlawful gambling game. In
the second place, the first paragraph of section 412 of the
Code of Civil Procedure does not authorize an attachment
in actions arising out of quasi contracts, but only in actions
arising out of contracts, express or implied.
I am therefore of the opinion that the court below was
without jurisdiction to issue the writ of attachment, and
that the writ should be declared null and void.
Writ denied; proceedings dismissed.

______________

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