Ban Kiat & Co. vs. Atkins, Kroll & Co. The paragraph of article 336 as regards that shipment. result reached is called in question by both parties, that is to say, by the plaintiff in respect to the allowance of the counterclaim as to the second shipment, and by the defendant in respect to the disallowance of the counterclaim as to the first and third shipments. The concrete question thus presented for determination in this court is whether the second paragraph of article 336 of the Code of Commerce is still in force in this jurisdiction. We are of the opinion that this question must be answered in the negative, for the reason that the paragraph referred to is a provision governing the prescription of actions and as such it has necessarily been abrogated by section 43, in relation with section 39 of the Code of Civil Procedure. In other words the period of prescription upon an action to recover damages for deficiency in the quantity of a commodity which is the subject of a mercantile contract of bargain and sale is the same as that applicable in other actions for damages resulting from breach of contract. Atkins, Kroll & Co. were therefore at liberty in this case to wait until they were sued upon the balance of the purchase price before moving judicially in the matter of recovering damages for the deficiency in the quantity of the material delivered. We are aware that an idea has heretofore been entertained by some members of the legal profession in these Islands to the effect that the second paragraph of article 336 of the Code of Commerce does not fix a period of prescription but defines, instead, a condition precedent to the accrual of the right of action; from which the inference has been drawn that said provision has not been repealed by the Code of Civil Procedure. This view apparently had its origin in the analogy suggested by one or two decisions of this court on other provisions of the Code of Commerce, presently to be mentioned; but a careful examination of the entire ground shows that the idea is without any sufficient basis and that the provision with which we are dealing is Ban Kiat & Co. vs. Atkins, Kroll & Co. what it appears on its face to be, namely, a provision relating to the limitation of actions. In the case of Government of the Philippine Islands vs. Inchausti & Co. (24 Phil., 315), the court had under consideration the second paragraph of subsection 2 of article 952 of the Code of Commerce, in which it is declared that actions for damages or defaults cannot be brought by a consignee of goods against the carrier if the proper protests or reservations should not have been made at the time of the delivery of the respective shipments, or within the twenty-four hours following when damages which do not appear on the exterior of the packages are in question; and the court held that this provision has not been abrogated by the provisions of the Code of Procedure relative to the prescription of actions. The idea upon which that decision proceeds is that the making of protest in the situations there supposed is a condition precedent to the accrual of the right of action. In Kelly Springfield Road Roller Co. vs. Sideco (16 Phil., 345, 353), this court invoked article 342 of the Code of Commerce upon the point that a purchaser who has not made any claim based on the inherent defects of the article sold, within the thirty days following its delivery, shall lose all right of action against the vendor for such defect. Other provisions of a somewhat similar nature in the Code of Commerce which have been recognized or applied by this court are found in article 366, which relates to claims against a carrier for damage or loss to goods in transit (Roldan vs. Lim Ponzo & Co., 37 Phil., 285), and article 835 which relates to claims for damage or loss resulting from collisions (U. S. vs. Smith, Bell & Co., 5 Phil., 85). In the several provisions of the Code of Commerce referred to in the last paragraph, the making of the claim or protest is antecedent to the existence of the right of action. Quite different is the provision of the second paragraph of article 336, now under consideration, limiting the time for bringing the action to the four days immediately following delivery. Of course the institution of the action Ban Kiat & Co. vs. Atkins, Kroll & Co. does not create the right of action. The right arises from the breach of duty on the part of the vendor and exists from the time default occurs. Clearly, this provision is of a purely prescriptive nature, and as such it has necessarily been abolished by the Code of Civil Procedure. In the case of Government of the Philippine Islands vs. Inchausti & Co. (24 Phil., 315), already cited, it was held that the first paragraph of subsection 2 of article 952 of the Code of Commerce, has been repealed by the Code of Civil Procedure, and the annotator of the current edition in English of the Code of Commerce recognizes that the prescriptive provisions generally of that Code have been abrogated in the same way (Espiritu, Code of Commerce, articles 942, et seq.). We are now of the opinion, and accordingly hold, that the second paragraph of article 336 must be included among the repealed provisions. The foregoing discussion conducts us to the conclusion that the cross action of Atkins, Kroll & Co. is maintainable for the recovery of the damages resulting from the deficiency in all three shipments of sheeting, and the amount due to the defendant upon this account is a proper subject of set-off and counterclaim against the demand of the plaintiff. The decision appealed from will therefore be affirmed in so far as it awards judgment to the plaintiff, Ban Kiat & Co., against the defendant Atkins, Kroll & Co. for the sum of $5,623.77, Singapore currency, with legal interest from December 24, 1920, the date of the filing of the complaint; and said decision will be modified, in the part relating to the cross action, by allowing Atkins, Kroll & Co. to recover of Ban Kiat & Co. the sum of $6,308.40, Singapore currency, instead of 1,999.50, Philippine currency, with legal interest from January 24, 1921, the date of the filing of the cross-complaint. Judgment for the excess, in Philippine currency, will be rendered in favor of Atkins, Kroll & Co., as plaintiff in the cross-complaint, in an amount to be determined with reference to prevailing rates Assudomal vs. Aldanese of exchange between the Philippine Islands and Singapore, after the return of this record to the lower court. No special pronouncement will be made as to costs of either instance. So ordered. Araullo, C. J., Johnson, Malcolm, Avanceña, Villamor, Ostrand, Johns, and Romualdez, JJ., concur. Judgment modified and affirmed. [No. 19206. November 10, 1922] PRIBHDAS ASSUDOMAL, petitioner and appellant, vs. VICENTE ALDANESE, as Insular Collector of Customs, respondent and appellee. 1. ALIENS; RULES AND REGULATIONS, RIGHT OF DEPARTMENT OF LABOR TO PROMULGATE.-Under the immigration law, authority is vested in the department of labor to provide rules and regulations for enforcing the provisions of the Act of Congress relating to the admission of aliens. Such rules and regulations, when adopted in accordance with the provisions of the law, must be taken judicial notice of by the courts. They are binding upon the department of labor as a part of the law of the land. 2. ID.; RIGHT OF COURT TO INTERFERE WITH RULINGS OF THE DEPartMENT OF CUSTOMS.-It is well settled law that the courts have no jurisdiction in habeas corpus proceedings to interfere with the proceedings and conclusions of the department of customs concerning the exclusion or expulsion of aliens until there is some error of law committed by that department. Courts have no right or authority to try the question whether or not the alien has a right to enter the territory of the United States in the first instance. The question to be decided by the courts is whether or not the department of customs has abused its power, discretion, or authority. If that is not shown, the courts are without jurisdiction to consider the right of an alien to enter the territory of the United States. 3. ID.; PROOF OF RIGHT TO ENTER TERRITORY OF THE UNITED STATES, WHERE OBTAINED.-Aliens belonging to the exempted class, seeking permission to enter territory of the United States, shall present, in support of their claim, evidence procured in the place of their domicile, that they belong to a class of aliens entitled to enter the territory of the United States. Assudomal vs. Aldanese APPEAL from a judgment of the Court of First Instance of Manila. Imperial, J. The facts are stated in the opinion of the court. M. G. Goyena for appellant. Attorney-General Villa-Real for appellee. JOHNSON, J.: This is an appeal from a decision of the Court of First Instance of the City of Manila, denying a petition for the writ of habeas corpus. It appears from the record that on or about the 1st day of November, 1920, the appellant arrived at the port of .Manila on the steamship Loonsang and asked permission to enter the Philippine Islands upon the ground that he was a merchant. His right to enter the territory of the United States was inquired into by a board of special inquiry, which board, after an examination of the evidence submitted by the appellant, denied his right to enter for the reason that "he could not show any paper that he is a merchant or he ever was a merchant in India as required by Rule 8 of the Rules of May 8, 1917, of the Department of Labor of the Bureau of Immigration of the United States." From the decision of the board of special inquiry an appeal was taken to the Collector of Customs and there affirmed. Later, a petition for the writ of habeas corpus was presented in the Court of First Instance of the City of Manila, which petition was, in a very carefully prepared opinion by the Honorable C. A. Imperial, judge, denied and the petitioner was remanded to the custody of the Collector of Customs, and ordered that the order of deportation theretofore rendered might be carried into effect. From that decision the petitioner appealed. The appellant contends that the department of customs abused its power, authority, and discretion in denying the petition for the right to land and, further, in denying the petitioner's application for the writ of habeas corpus. It has been decided in so many cases, that it is no longer nec |