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4. But the principal question which arises upon this ordinance is, whether the registry of the mine will be good, supposing it be made in a foreign name, the real owner being some distinct person ? or whether the penalty of the ordinance will be thereby incurred ? On which point the following argu: ments appear to favour the opinion that the registry is valid, and that the penalty does not apply.
5. First, because the assumption of a feigned name, or the substitution of the name of one person for that of another, in contracts of purchase and sale, involves no impropriety, it being very usual for one person to be nomi. nally concerned, whilst the person actually entering into the engagement is distinct; or for one person to be the real owner of property, whilst another lends his name for convenience and in confidence. Hence the emperors Valerian and Galienus issued rescripts, to the effect that although an instrument of purchase should run in the name of the father-in-law, yet if the husband were the real owner, the wife should have no claim, upon a divorce, to the property which was the subject of the purchase, even although the deed should be in her own possession. The same rule is expressed in two other texts of the emperors Diocletian and Maximian, it being proper that the real intent of the transaction should be carried into effect, rather than the mere sense of the writing ; and the title of that head of the civil law must be sufficient to satisfy us, that the real meaning of the transaction sh all prevail over any fictitious suggestions assigned.*
6. Second, because it is a matter of course, in the case of a contract of pur. chase and sale, to have regard to the person for whom the thing is really purchased, although some other name should appear in the instrument ; so that the real intention is not liable to be varied in consequence of some pretended fact, or of the substitution of some feigned name, but on the contrary, all the obligations and effects resulting from the contract, attach on the secret party and not on the fictitious or suppositious one. If a person holding the office of mayor, purchase lands with money destined for that purpose, he acquires them for the corporation, although his own name may appear in the instrument. If a rent be charged on property, by a party whose name appears as the feigned purchaser, the real owner will not be liable to it, for the party so named
alieno est obligatus, et ideo licet faciat nomine suo, præsumitur tamen nomine pupilli, per L. Lucius, §. tutorem, ff. de admin. tutor. et per plurimes DD. et n. 3, post Cavalcanum et Mascar. dum, cons. 1393, n. 4, extendit ad quemlibet rerum alienarum administratorem, licet actum, et emptionem fecerit nomine proprio, nihilominus facere tenetur nomine minoris, et alieni, et isti non illi adquiratur. Quamplurimos DD. congessit Mangillius, de evictionib. q. 188, ex n. 13, cum seq. omnino videndus.
* L. 4. ff, si quis alt vel sub alter. nom, vel aliena pecun, emer. "Quamvis in instrumento emptionis socrus nomen inscripscris ; tamen si possessionem tenens dominus effectus es, ob eam rem frusta calumniam malieris, quamvis ipsa contractas tabulas habeat, reformidas," L, 5. et 6. ff. eod ; "Quia res gesta potior quam scriptura habetur.” Tot. tit. Cod. Plus valer e quod agitur, quam quod simulate concipitur.
fictitiously is a mere trustee or agent, and not the lawful owner. And the party actually in contemplation at the time of the transaction, shall prevail against the fictitious nominee; for the lawful owner not wishing his name to appear, is at liberty to insert that of some other person, provided he do so in good faith and without fraud, and with some honest motive; as may be learned from Salgado, Vela, Barbosa, Menochius, Gratianus, Casaregis, Tuschi and many others.* It may therefore be inferred that the same tbing may be done with regard to the registering of mines, without incurring the penalty.
7. Third, because the objects of this ordinance are twofold; the one to prevent injury to the lawful owner, and therefore to disable any other person from usurping possession of the mine, by registering it for himself; which object no longer exists when the owner consents to the act: and as it is, in such case, incumbent on him to secure himself by taking a declaration of trust from the nominee, he must, if he omit to do so, suffer the consequences. The other object of the ordinance is, to have it made known what persons, being the owners, are liable to the payment of the duties, and to the observance of the ordinances, which object may be attained, notwithstanding the insertion of a fictitious name in the registry.
8. And, finally, because a penalty limited in one particular case, ought not to be extended by construction to a different case, even though within the reason of the rule.t · And as the case to which this penal ordinance applies, is that of one person usurping the mine of another, when he has a right to it by way of pledge only or in some other manner, as explained above, the pen. alty ought not to be extended to the distinct case which we have put.
9. Notwithstanding all these arguments, our opinion is, that if the tenor and purport of the ordinance be well considered, it will be deemed to extend to this case. First and principally, because the feigned name being entered in the register, the nominee would be entering in the register as his own, a mine which is not properly his, and the penalty must consequently be inevitably incurred; for there can be no doubt that when the nominee presents the ore, and makes the registry in his own name, upon the suggestion that the mine is his, while it really is not so, the document is publicly and notoriously made applicable to him ; and if the rule of the ordinance does not hold in
• Salgad. Labyr. 2, p.cap. 24, per totum. et signanter a. n. 35. fundat majoratui ad quiri emptum pecunia ad emptionem prædiorum destinata, quamvis poszessor emat proprio nomine. Vela, dissert, 38, a n. 19, copioce illustrat senatus Granatensis decisionem qua reditum regium Juro emptam nomine Michaelis, et gravatum ab ipso ; ad Franciscum fratrem, et ipsius hæredes pertinere declaratum fuit. Et n. 20, ibi : "Veritas in quolibet actu duntaxat inspicienda est, quam simulatum factum non immutat.” Et prosequitur multitudine legum et AA. Barbos. in L. 4, Cod. Plus valere quod agitur, &c. Menoch. lib, 3, Præsumpt. præs. 125 Gratianus, Discept. c. 131, n. 17. Casaregis, de comm. tom. 1, disc, 43, n. 33 et 39. Tuschi. lit. S. conclus. 257, n. 38, et concl. 265, n. 20.
I Cap, renovantes, dist. 22. Cap. odia, de r. j. in 6. L. cum quidam, ff. de lib. et posth. Tiraquel. de retract. in præf. n. 62 et 63. Menoch. cons. 900, n. 13. Tusch. lit. R. conc. 81, 0. 43.
a case like this, it will be impossible to find one to which it can more reasonably apply.
10. Second, because if the substitution of the name of one person for that of another were permitted, there would be much opportunity for fraud : one consequence would be, that the penalties would be avoided, by alleging that some other person was the actual owner; another, that the payment of the duties would be eluded; another, that one person would be enabled to hold more than two mines upon the same vein, all acquired by the denouncement or registry, contrary to the ordinances, which permit an ordinary miner (not being a discoverer) to acquire mines beyond that number, by purchase and sale, or some other such mode, only; but by assuming a feigned name, one person might obtain possession of any number of mines at pleasure; and various opportunities of fraud would be let in, which, to an evil disposition, readily suggest themselves. But protection should never be extended to craft or fraud.t :
11. Third, because the law ordains, I that any person who shall discover a mine of gold, silver, &c. shall be bound to register it within the term of 20 days, at the same time exhibiting the ore, and stating who is the person that has made the discovery: all which requires that the true and lawful owner should himself come forward. And this rule is broken in upon by substituting a feigned name, which is therefore sufficient to make the penalty attach. And as we have observed, in explaining the 17th ordinance above-cited, the objects of this exactness in regard to the forms of registry are various, embracing both the attainment of greater certainty as to the ownership of the mine, and the enforcing the duties of the registered miners; all which would be alike frustrated, if the assumption of a fictitious name were permitted.
12. Fourth, because it is provided by another of the ordinances,ỹ that no person, of whatever condition, may take a mine for another, except by virtue of an authority, or unless he be a hired servant or the person for whom he shall take the mine ; and that if either of these qualifications be wanting the mine shall be considered as forfeited, and liable to be denounced, without any appeal on the part of the person who takes the mine, or of him in whose name it may be taken. If, then, this be the case, when there is no disguise or assumption of a fictitious character, there is still more reason that it should be so, when such a course of proceeding is resorted to.
13. Besides which, the principal object of the ordinance is, to forward the administration of justice, and to promote the general good, by establishing a registry of this valuable and important description of property, upon
* 31 and 32, of the old ordinances, of law 5, tit. 13, book 6, Collection of Castile. Chap. 8, infr. ordinance 31.
† Salgad. de retent. p. 2, cap 20, a n. 69. Gonzal. in cap. super literis, de rescript. n. 10, qui jura cumulant.
I Chap. 5, ordinance 17.
the basis of regularity and correctness ; and to leave no opportunity for the exercise of fraud, which would be let in, by allowing a feigned name to be assumed, or the name of one person to be substituted for that of another. On this ground it is, that in the registery of shipping, which is a parallel case, it is made unlawful to enter another person's vessel in your own name, or your own vessel in another person's name; but in such case the vessel is declared forfeited, together with three or four times the value; as will be found on reference to our laws of the Indies, and to the illustrations of those laws given by Don Joseph de Veitia.* From all which it is to be inferred, that the registering a mine in another person's name is altogether to be discountenanced, and incurs the penalty of the ordinances.
14. And there is no weight in the arguments which have been stated on the other side of the question. Not in the first and second, which are founded on the civil law, and other authorities, making it out to be lawful to make a purchase in the name of another person, one party being named as the owner, whilst some other is so in fact; for there is an evident difference between this case, and the case we are considering, namely, that in all other transactions the assumption of another person's name is a matter which , passes between individuals, who adopt this course for their own private ends, and with a view to the accomplishment of some reasonable object, and generally without any fraudulent intention; as when a husband makes a purchase in the name of his wife, or the chief officer of a corporation in his own name; and in a word, any confusion in the title which it may occasion, will result to their own individual loss alone, and therefore the laws consult the rights of the real and lawful owners; but the assumption of a fictitious name in the case of the registry of mines, and in reference to the right of ownership in them, is, as we have shewn, prejudicial to the interests of the public and of the revenue, and is a fraud upon the ordinances.
15. For the same reason, there is as little weight in the third and fourth arguments, for although the assumption of the name of some other person in the registry be consented to by the owner, although such person be not guilty of any encroachment or fraud upon the rights of the owner, against his consent, and although he may pay the duties, as the real owner might otherwise have done ; yet it must be borne in mind, that the ordinances are framed for public objects, some of which, amongst others, are, to guard against fraud, to prevent the holding more mines than are allowed by law, and to maintain a proper regularity in all that concerns mining property. And again, although the less important reasons above-mentioned should fail, yet the stronger and more forcible arguments which are founded on the fact of the registry being declared void, and the penalty imposed by the ordi
Veitia, Norte de
• Law 34, tit. 33, law 69, tit. 35, book 9, of the Collection of the Indies. a contractacion de Indias, lib. 2, cap. 17, n, 10.
nance, are not so easily to be got over, and render it impossible to allege, that by the construction contended for, a penal rule, applying to one particular case, is extended to a distinct case ; the case under consideration, of one person entering in the register, a mine which is not his own, being expressly comprehended in the ordinance, and being the precise case against which the fine and penalty imposed thereby, and by the other ordinance above-cited and agreeing with it, are directed.
OF MINES HELD IN PARTNERSHIP_OF THE NUMBER OF HANDS REQUIRED
TO BE EMPLOYED IN THEM-OF THE MODE OF REGULATING THE WORKS AND DIVIDING THE PRODUCE_OF THE DIFFERENT KINDS OF AGREEMENT APPLICABLE TO PARTNERSHIPS IN THIS SPECIES OF PROPERTY-OF THE MODES IN WHICH SUCH PARTNERSHIPS ARE DETERMINED-AND OF THE NUMBER OF MINES THEY MAY LAWFULLY HOLD.
ORDINANCES XXI. XLIII. XLIV. XLV. XXI. Also, we ordain and command, that when any person shall register a mine or mines not wholly his own, he shall be bound to declare what share or shares he holds in them; and if he hold them in partnership, what share his partner or partners may hold in such mine or mines ; under the penalty (if he do not do so), of forfeiting the share or shares he may hold, which shall go to the partner or partners, the share or shares held by whom, he has so omitted to set forth.
XLIII. Also, we ordain and command, that when two or more persons shall hold a mine in partnership, for the purpose of working it and raising ore therefrom, if any one of the partners shall require the other partners to set on hands, they shall be bound to set on twelve persons in the whole, if there be ore enough for the purpose, and if so many can work conveniently; or otherwise, as many as can conveniently work at once, according to the disposition of such mine, and the ore it may contain ; and if any one of them, being required so to do, shall not set on bis proportion of hands, then the mining judge shall examine into the disposition of the mine, and shall set on, at the expense of the owners of the mine, such number of hands as the partner was bound to set on, to make up his proportion of the number of twelve persons; in order that the working of the aforesaid mine may not come to a stand in consequence of such disputes.
XLIV. Also we declare and command, that if any one of the partners shall wish to set on more hands to work the mine, than such twelve persons, he shall be at liberty to do so, provided he give notice thereof to his partner or partners, in order that if they are willing to set on more hands, it may be