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.

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 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, presented 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 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?”

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

Is this a cause of action arising upon contract, “express or implied,” as
this term is used infection 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 tacito,” 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
agreements of the Roman Law found no congenial place in the early common law
system.

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 pyhsical 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 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 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
lees 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 th.e 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 supported 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 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 quasi-contract 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 common-law
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 to recover money improperly paid (repetition 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 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.

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 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 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.

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 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 persons (gestion 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 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 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, Johnson, and Carson, JJ.,
concur.

Fisher, J., with whom concurs Avanceña, J.

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CONCURRING OPINION

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 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
jurisdiction of the court and its action is not reviewable on certiorari. It is
not sufficient to say that it was issued wrong fully and without sufficient
grounds and in the absence oj 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 tht
right to exercise a discretion as to whom the license shouk be issued. We do not
believe that either of these questions goes to the jurisdiction of the court to
act. One of tht 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 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. 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 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 legally 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 fuUy 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.

---

DISSENTING OPINION

FISHER, 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 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 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
necessarily uncertain and indeterminate, cannot be ascertained definitely until
the trial has been completed.

But it appears that the legislature, although it has seen 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 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 for 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 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 encountered 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 of the garments.
The contract is implied, but it is none the less purely consensual. 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 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 bf 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 enforced 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 and where
fictions and intendments are resorted to, to fit the actual cause of action to
the theory of the remedy. It is thus sanctioned where there has been no * * *
real contract, 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 legs 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, 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 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 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.