done accordingly; and if he shall not give such notice, he shall forfeit the ore he may raise, which shall belong to the partners aforesaid. And if, when - he shall have given them notice, they shall not think proper to set on more hands, they shall not be bound to do so, because enough is done by setting on such twelve persons between all the partners; but if, nevertheless, any one of the partners should still wish to set on more hands, giving notice as aforesaid, he shall be bound to give the other partners their share of the ore raised, as if the supernumerary hands he may have set on, and by whom such ore may have been raised, had been set on by all of them; and the justice aforesaid shall compel him to do so. XLV. Also, as to the ore which may be raised from mines held in partnership, if they shall not be disposed to smelt it in partnership, and to divide the produce when smelted and refined, according to their respective shares in the mine, they shall divide it in ore, in like proportion to their said respective shares; and until so divided, it shall be kept all together, in a place of security, and none of them shall presume to take away any part of it, under pain of forfeiting his share, which shall go to the other partner or partners, and as much more as the value of such share, one half to go to our exchequer, and the other half to the informer and judge. And if they smelt it in partnership, they shall also refine the produce together, so that each person may afterwards receive the share belonging to him, un er the penalty to which those persons are liable, who do not take the produce of the ore they have smelted, to be refined, but sell it or deal in it unrefined. CONTENTS OF THE COMMENTARY ON THESE ORDINANCES. 1. Mining partnerships admit of a variety of different agreements. 2. A mine is divided by law into 12 or 24 bars, for the better regulation of the partnership. 3. It is obligatory on him who registers a mine held in partnership or in common, to state who are entitled in common with him, and in what shares. 4. The penalty for contravening this rule. 5. The penalty is not incurred by one who does so with the consent of his partner. 6. The penalty may be incurred, even before the three estados are sunk, as required by the ordinance. 7. To obtain the penalty, the partner suing for it must make it appear that a partnership exists, either express or implied. 8. Reflections on the unhappy case of the miserable discoverers, whose partners often deny the existence of a partnership. 9. Of the number of hands required to be kept at work in mines held in partnership, and the mode of working them. 10. They are sufficiently worked by setting on four workmen, in like manner as a mine belonging to a single individual. 11. Upon the requisition of any one partner, the whole together are bound to set on twelve workmen, and no more. 12. If any of them object to do so, the justice causes the full number to be set on, that there may be no stoppage in the works. 13. Any person setting on additional workmen, without giving notice to his partner, forfeits the ore which such workmen may raise. 14. If he give notice, then he must give his partners their share of the ore, deducting expenses. 15. Recapitulation of what has been stated. 16. An ordinance of the government of New Spain, on the subject of the number of hands to be set on. 17. What ought to be done by a partner who shall have found ore in a mine theretofore unproductive, he having set on an additional number of hands on his own account. 18. If he shall not, by this means, find ore, he shall not be paid his expenses. 19. Ordinances of Peru, as to the number of workmen to be employed in a mine held in partnership, which does not return profit. 20. In New Spain, a partner who omits, during a period of four months, to contribute to the expenses of four workmen, forfeits his share. 21. Discord is the bane of mining partnerships: prudent regulations of the German partnerships. 22. The overseers are the cause of much discord amongst partners; but an interventor* might be appointed. 23. Mode of dividing the works into regions. 21. The produce may be divided either in ore or in silver; and any one taking from the common stock is liable to a penalty. 25 and 26. Agreements amongst partners, to contribute in different proportions, are lawful. 27. What number of mines partners may lawfully hold. 28. Don Joseph Saenz's opinion on this point. The contrary conclusion come to. 29. Namely, that they may hold as many contiguous mines as there are partners, and then, after an interval of three pertenencias, as many more. 30 to 33. This opinion supported upon the letter of the ordinances, and by several considerations arising out of them. 34. A man may hold a mine in partnership with others, contiguous to one belonging to him in severalty. 35 and 36. The partnership is determined by renouncement, sale or forfeiture, under the penalties of the ordinance. 37. And likewise by the death of a partner; but the property is still held in common, and the shares remain distinct. 38 to 46. The partnership may be determined by an actual partition in measured varas; an opinion which is confirmed by the tenour of several of the ordinances of Peru, and by the expressions of those of the new code. 47. Whether the mine will conveniently admit of partition or not, is left to the judge to decide. COMMENTARY. 1. Every occupation which offers a fair and honest profit, may be the subject of a partnership,† a kind of contract which is very often entered into, in reference to the working of mines, which, while they offer, on the one hand, great prospects of success, frequently, on the other hand, bring ruin * A person appointed to watch specially over the interests of one or more of the partuers in a mining concern.-Trans. † Law 2, title 10, part 5. Law 5. L. 57, ff. pro. soc. Gutierrez, de juram. confirm.1. p. cap. 48, n. 7. Felicius, de societ. cap. 9, a n. 3, usque ad 22, princ. tit. Instit. de societ. et ibi Institutar. on the parties concerned in working them. The reason of partnerships being so often entered into in reference to mines is, that a mine (as is commonly said) requires a mine, that is to say, demands a large capital, and the owners or discoverers not being always able to undertake the expense, call in the aid of others, to whom they cede a partial interest in the mines, to be enabled to work them and raise the ore.* The transaction therefore, at its outset, involves a complete and gratuitous gift, which is however to be construed with reference to the partnership, the object of which is to carry on the work of the mine at the common expense. At other times, different parties enter into an agreement, to become partners in all the mines they may find in the course of their search. At other times, mine owners dispose of shares in their mines; and, finally, mines may be acquired and transferred for the purpose of being worked in common or in partnership, by every mode in which the right of property may be transferred, whether onerous or lucrative. 2. An entire mine consists of 12 bars; and although twice that number, or 24, are reckoned, in some mining districts, yet 12 is the more usual number in the principal districts, in analogy to the division of the inheritance into the parts of an As. These bars and the profits arising upon them, may be subdivided amongst a number of partners, according to the quantity of ore raised. Each partner therefore, contributes to the expenses, and receives the produce, in proportion to the number of bars belonging to him; the owner of six bars, in the proportion of one half; of three bars, in the proportion of one fourth; of two bars, in the proportion of one sixth, and so on, as in the division of the inheritance; so that a due proportion exists between the capital subscribed and the profit or loss, derived or sustained, agreeably to the rules of the civil law. But the partners are at liberty to enter into a variety of agreements amongst themselves, by virtue of which one partner may receive a larger share of the profits, or contribute less to the expenses, than another, as we shall explain by and by; in like manner as, in other cases of partnership, agreements introducing such inequalities are permitted. § 3. Having premised thus much, and proceeding to investigate the meaning of the ordinances which treat of partnership mines, we shall find that it is provided by the 21st ordinance of the new code (which agrees with the 20th of the old ordinances),|| that a person registering mines which are not wholly his own, is bound to declare what share or shares he holds in them, * Agricola, de re metall. lib. 4, p. 60. † Idem, ibid. ‡ L. si non fuerint, 29. ff. pro socio, §. 1, et 3. Instit. de societ. Ex iisdem jurib. num. præced. et §. 2. Instit. de societ. et ibi DD. Felicius. de societat. d. c. 9. à n. 22. latissime, usque ad n. 41. Law 5, tit. 13, book 6, Collection of Castile, cap. 20, and if he hold them in partnership, then what share his partner or partners may hold. Here we must notice the distinction which is raised by these words, between mines held in common, and in partnership, as there may be a holding in common, without a partnership; although there can be no partnership without a holding in common. Thus in the instance of one and the same thing purchased by several persons jointly, or of an undivided inheritance, and in several cases noticed in the laws, there is a holding in common, without a partnership; for the latter requires a special agreement or contract, which a holding in common does not, as it may arise from the very nature of certain acts performed. Our ordinance, therefore, in order to make mines held in common, and also those held in partnership, liable to the obligation of being registered, ordains first, that any person who shall hold mines which are not wholly his own, shall declare what his share is (and here it refers to mines held in common), and next, that if he shall hold them in partnership, he shall declare what the shares of his partners are. And, in consequence of this precept, it is the usual practice, at the time of presenting the petition of registry, to declare the names, and the bars or shares of the partners, before the justice; for the register being the basis of the title to the mine, and serving various ends, it ought to appear with certainty who the owners are, which we have seen when considering the other ordinances.† 4. Any partner who, in contravention of this precept, shall register the whole mine as his own, is subjected by the ordinance to the penalty of forfeiting the share or shares he may hold, in favor of the partner or partners whose shares he has omitted to set forth. A very reasonable and proper punishment, for the avaricious and fraudulent act of suppressing the right of another person, and appropriating to himself what is common to others with him; and for infringing the rules of the 20th ordinance, by registering as wholly. his own, a mine which is only partially so. It is a very common practice of wicked and avaricious persons, to rob the poor and wretched individual who has discovered the vein, by thus depriving him of the share he is entitled to, merely because they know he is unable to defend his rights; and we have met with instances of this nefarious proceeding, in the case of mines of considerable richness. Although by the civil law, the action pro socio lies, to recover a share of the profit, and to establish the party's right, without going so far as to seek to make the party setting up a claim to his partner's interest, *Felicius de societ. cap. 11, n. 2. "Et quia licet communio possit esse sine societate, tamen societas non posset esse sine communione. L. hæredes, §. non tantum, ff. fam. hercisc. L. 31. ff. pro. soc. Ut sit pro socio actio societatem intercedere oportet ; nec enim sufficit rem esse communem, nisi societas intercedit: communiter autem res agi potest etiam citra societatem : ut puta cum non affectione societatis incidimus in communionem: ut evenit in re duobus legata: item si a duobus simul empta res sit: aut si hæreditas, vel donatio communiter nobis obvenit, aut sia duobus separatim emimus partes eorum, no socii futuri. Et L. 32, eod." Ex DD. pene innumeri apud eundem Felicium. + Chap. 5, above, ordinances 17, 18 and 19. forfeit his share in favour of the injured party; yet as the observance of the ordinances, and the penalties inflicted thereby, are the conditions under which the sovereign has made the mines common, they ought to be observed, as laws peculiarly applying, rather than the civil law, which is of no weight where there is a law or determination of our kingdom, on the same subject. 5. The penalty is incurred, when the partner's share is concealed maliciously and fraudulently, and this is the reason of the offending party's share being given to him; but if the mine be registered in the name of one partner alone, by consent of all the partners, no injusticef is done, and the penalty does not attach, on account of the privity and consent of the other parties. And although the 20th ordinance might be cited to prove the contrary, that ordinance directing that he who enters in the register as his own, even with the consent of the discoverer, a mine which is not so, shall forfeit his right to it, as we have shewn in the proper place ; yet the fact is, that this does not apply to a mine held in common, the property in which is vested with equal certainty, in each and every one of the partners; and if it be made to appear with certainty, who has the right of property, all that the ordinance requires is performed. And if any one partner is willing to take upon himself the obligation of keeping the mine at work, and the other duties annexed to the management of a mine, he is at liberty to do so; and he does not thereby act in opposition to the ordinances, but merely avails himself of an alternative which is open to him to adopt, and by which he confers a benefit on the other partners, who, of course, will not fail to keep a due watch over their own interest, or in any case, if they do not do so, they must take the blame of the omission upon themselves. 6. To make this penalty attach, it is not necessary to wait till the time of giving possession, that is, till the mine is sunk three estados, agreeably to the 35th ordinance; for although the title to the mine and the act of regis try are made complete by the giving possession, yet, the time when the shares of the other partners are to be declared, is that of making the regis try; such being the strict letter of the ordinance; "When any person shall register," &c. Between the times of making registry and giving possession, a great deal of ore may be raised, in fraud of the other part owners, for by the 36th ordinance, ore may be, and as experience proves, often is raised, before sinking the three estados; and therefore the partner who contravenes the partnership rights, by working the mine on his own account alone, after making registry, will incur the penalty of the ordinance, even although the three estados are not sunk, nor the 90 days, within which they * § 4, Inst. de societ. "hære ditatem solus lucri feceret, cogitur hoc lucrum communicare." Law 12, tit. 10, part 5. + Cap. 27, de r. j. in 6, "Scienti, et volenti, non fit injuria, neque dolus." Cap. 6. per tot. |