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 P15,000 which had been deposited by the defendant with the International Banking
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 Instance has granted an attachment for which there is no statutory authority; can this court entertain the present petition and grant the desired relief?
(2) Is the statutory obligation to restore money won at gaming an obligation arising from "contract, express or implied?"
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 (sees. 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 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.
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 one or the other of these categories should have been suppressed and merged in the other. (Giorgi, Teoria de Uts 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.
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 received. (Clarke vs. Johnson, Lofft, 759; Mason vs. Waite, 17 Mass., 560; Burnham vs. Fisher, 25 Vt., 514.) This means that in the common law the duty to return money won in... this way is an implied contract, or quasi-contract.
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 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.
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.