Leung Ben vs.

O’Brien
G.R. No. L-13602, April 6, 1918
38 Phil. 182

FACTS:

On December 12, 1917 an action was instituted in the CFI of Manila by O’Brien to
recover from Leung Ben the sum of P15, 000.00 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
Island with intent to defraud his creditors. The attachment was issued and acting on the authority
thereof, the sheriff attached the sum of P15, 000.00 which had been deposited by the defendant
with the International Banking Corporation.

The defendant moved to quash the attachment; the court however, dismissed said motion.
On January 8, 1918, petitioner Leung Ben, the defendant in that action filed his petition for writ
of certiorari directed against O’Brien and the judges of CFI. The prayer is that, the honorable
James A. Ostrand be required to certify the records for review and that the order of attachment
that had been issued should be revoked and discharged with cost.

ISSUE:

The issue is whether or not the statutory obligation to restore money won at gaming is an
obligation from “contract, express or implied.”

HELD:

The duty of the defendant to refund the money which he won from the plaintiff at gaming
is not an obligation from “contract, express or implied” rather it is a duty imposed by statute.
Upon general principles, recognized both in civil and common law, money lost at gaming and
voluntarily paid by the loser to the winner cannot, 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, containing numerous provisions recognizing the right to recover
money lost in gambling or in the playing of certain games. The obligation of the defendant to
restore or refund the money which he won from the plaintiff at gaming therefore arises ex lege.