shall raise a monument, and several persons raise monuments; and so, if given to the eldest, where there are two persons of the same age; or to the greatest friend, where there are two persons who have equal claims of friendship as may be seen by reference to the text of Ulpian, and those who follow him.* It would follow therefore, that, supposing two different persons to make the discovery simultaneously, neither of them would be entitled to the privileges of a discoverer. 5. But the solution is not to be sought amongst these subtilties of the Roman civil law. For the reason which prevents, the legacies from taking effect in the above instances, is the testator's not having fully comprehended the effect of the condition, he having had one single person only in contemplation. But the object of our laws is to promote the working of the mines, as of the utmost importance to the public, not regarding whether the discoverers be several, or one only; and it would be very far from reasonable to determine, that the mines shall remain untouched, and the labour of the discoverers be disappointed of its due reward, merely because they have happened to discover the vein at one and the same time. We must therefore look for some other principle, more direct in its application, and harmonising better with the intention of the ordinances, upon which to ground the decision of this question. 6. Such a principle may be found in the ordinances of Peru, by which it is provided: "That if two or more persons shall find ore together upon the same occasion, he who shall first produce the ore before the justice, having previously made an assay, as directed by the ordinances, shall be deemed. to be the discoverer; and if the dispute concern a single vein, the other party shall be at liberty to set up his stake next to the mine allotted to the crown; but if it also concern another vein, he may make his choice in the manner to be declared."† 7. This declaration is made in another of the ordinances, which estab lishes: "That whoever shall discover a vein, more than one league from any other mining district, shall enjoy the rights of a discoverer, upon that vein, but if he shall discover another vein on the same ground within that distance, he shall have a mine of 60 varas at any part of it he pleases, and if he shall discover other veins, he shall be entitled to have that space upon all, until he has six mines of sixty varas each; and every one who shall discover new veins shall have the same privilege, although he be not a discoverer of a new mineral tract, up to the number of five mines; and as to such others as he may acquire by staking out or by purchase, regard shall be had to the subsequent ordinances, which treat of taking more than the allowed number of mines. But if he should discover other mines beyond the said L si fuerint, ff. de reb. dub. L. duo sunt Titii, de testam. tutel. Ordin. 9, tit. 1. concerning first discoverers; Escalona, Gazoph. lib. 2. part. 2, cap. 1, pag. 106. space of one league, in which he shall be entitled to enjoy the rights of a discoverer, such mines as he may take there, or may be granted to him in that character, shall not be reckoned in the aforesaid number, either with regard to him, or to any other persons who may discover veins in such new mineral tract; except that they shall be obliged to keep them properly worked, and if they neglect to do so, the ordinances relating to mines left insufficiently worked, shall be applied to them."* 8. These two ordinances serve to shew, that if there be different veins at less than one league distance from some other mining district, one mine may be taken upon each vein, to the number of six mines; but if two or more persons find ore upon different parts of the same vein, he who first produces the ore before the justice, is the discoverer, and the other may have a mine next to that which the ordinances of Peru direct to be set out for the crown ;† so that they have between them, the two mines which one alone would have been entitled to, had he been the sole discoverer; but he who exhibits the most diligence in producing the ore before the justice, enjoys the discoverer's mine, exceeding the ordinary ones by 20 varas in length and 10 in width, according to the dimensions assigned to the mines in that kingdom. 9. By analogy to which, it may be inferred, that in New Spain, where a single discoverer is at liberty to take as many mines as he pleases, measuring out the boundaries in whatever direction he thinks best, the same right ought to be enjoyed to an equal extent, by each of the two persons who should have discovered ore upon different parts of the vein, at the same time; which may be done, without any necessity for making a common or partnership concern, as equality may be attained by making their choice separately, each taking his principal mine upon that of the vein where he may have found the ore. And although one should use more diligence than the other or others, in producing the ore before the justice, the latter ought not to be prejudiced by his being thus beforehand, provided the application be made within the term of 20 days, allowed by the ordinances of Castile‡ for making the registry, as no delay will be occasioned thereby. And although, under the ordinances of Peru, the party who applies first, is entitled to an additional space of 20 varas, this circumstance is of little moment; for in New Spain, the discoverer, as we shall explain in its proper place in the next chapter, is entitled to an equal extent in all the mines he selects. And in the case of their disagreeing in making the choice, the judge must bring them to an understanding, either by drawing lots, or in some other way. 10. This doctrine harmonises well with the grand object of encouraging the working of the mines, and stimulating the subject to discover them, for * Ord. 14, apud eund. ubi proxime, pag, 107. + Ord. 18, apud eund. pag. 108. Chap. 5, ord. 17. the general benefit of the revenue and the nation at large. And the extending the right, in this manner, to both discoverers, is an easy means of providing for the interest of each, and makes the case analogous to that of two creditors having instruments of the same date, by virtue of which they require (according to several authors, who rely on some important texts*), an equal right to priority in respect of their several debts, against the thing pledged, so as to come in in equal shares, or in proportion to the a mount of their debts. This is also agreeable to the course pursued by Scipio, in giving to two persons the mural crown, which he had promised to the first who should ascend the walls of Carthage; and to other instances of a similar kind which might be cited, of persons enjoying some dignity, patronage or office, in common, and dividing and enjoying the emoluments equally. 11. Dismissing this topic, we proceed to observe, that the 22d ordinance directs, that the first disoverer shall enjoy all the mining pertenencias which he may stake out and distinguish, but subject to the following conditions; first, that he shall make registry agreeably to the ordinances on that subject; second, that he shall distinguish the pertenencias he is desirous of having, within ten ten days from the time of making registry; and third, that he shall set up a fixed stake,† in each of the pertenencias he shall so distinguish and take. These are conditions which it is indispensably necessary to observe, as appears from the word provided, in the ordinance, which imports a condition, and that the party is not to enjoy the rights of a first discoverer, nor to have the pertenencias he fixes upon, unless he fulfil the conditions particularized. He must therefore, within ten days, set up a fixed stake in each of the mines he may be desirous of taking, distinguishing and staking out each pertenencia; and he cannot claim to have ten days for each mine, or for setting out the limits of each separate mine, for the ordinance says, "within which (ten days) he shall stake out, declare and distinguish ;" and it again repeats :-" he shall be obliged, within the aforesaid term of ten days, to stake out all the pertenencias which he shall so choose ;" and further on, it adds: "after the expiration of the first ten days allowed to the first discoverer;" in enforcing which provisions, the object of the ordinance is to reap the benefits derivable from setting the mines to work, and to provide for the interests of those who, coming afterwards, may be desirous to make registry; L. si fundus, §. si duo. ff. de pignor. L. idemque, ff. qui potiores in pignor. hab. Peregrinus de jur. fisci. 2, lib. 6, tit. 6, n. 35. Gomez, in L. 45, Taur. n. 3. Carrasco, in LL. Recop. cap. 11, n. 182. Barbosa, in L. 1, p. 2, n. 8, ff. de solut matrim. apud ques innumeri: et apud Acosta, de priv. cred in præf. ad reg. 3, n. 3, 4, 5 et 91. The fixed stake is the denomination given to the principal pit of the mine, from which the works are commenced, and which is never to be abandoned upon any subsequent demarcation or alteration of the boundaries. Juxta ea quæ cum pluribus tradit Antunez, de donat, lib. 1, præl. 2, § 1, a n. 26. Salgado, de reg. protect. p. 4, cap. 12, n. 39 et 40. Conditio inducit formam in lege: Molina, de primogen lib, 2, cap. 11, n. 12, Tiraq. de retract, §. 37, gloss. 2, n. 28. Gutierr. Pract. lib. 3, quæst. 52, n. 5. and therefore, in order to prevent their being delayed by the first discoverer, it fixes that period for the whole. 12. With respect to the preference given to the first discoverer, this ordinance follows the 21st of the old ordinances, altering the 31st of those ordinances, under which, neither the first discoverer nor any other person could take more than two mines upon one vein, and even those were not to be contiguous, but must have a space of three pertenencias between them, unless acquired by purchase; in which case, the owners might hold several, even though contiguous. As then, the ordinance under consideration authorises the discoverer to take as many mines as he thinks proper, it follows that the 31st ordinance above-mentioned, is varied, both in respect to the number of mines allowed to be taken, and to their relative situation, namely that they may now be either contiguous or apart, at the pleasure of the discoverer. 13. That the rule of the old ordinance is varied as to the number of mines allowed to be taken, appears from this that a grant is made to the discoverer, of any number he pleases, and therefore, by one of the first rules of law,† he is not excluded from any one pertenencia upon the vein. And he is, therefore, at liberty to take the whole vein, and to work it, provided he set up a stake in each mine, keep the requisite number of hands to work in each, and attend to the other directions of the ordinances; for if he lay out his money upon mines, and work them on his own account, he is likewise fairly entitled to enjoy all the benefit himself; and such is the manner in which Agricola treats this question, in two places where he considers the subject.‡ 14. It follows also, that it is varied as regards the relative situation of the mines; for the observation incidentally made by Don Joseph Saenz,§ that the first discoverer may certainly, under the 31st ordinance of the new code, take more than two mines upon the same vein, but that he must leave the three pertenencias between, is evidently contrary to our 22d ordinance, which in an ample and almost redundant manner, grants to the first discoverer, "all such mining pertenencias as he shall stake out, or choose to stake out," and entitles him " to distinguish such pertenencias as he may be desirous of having," "as he shall think fit," without requiring him to leave any intermediate space between one mine and another, but leaving it to his own choice * Law 5, tit. 13, book 6, Collection of Castile, ord. 21 and 31. † Qui dicit omne nihil excludit. Agricola, de re metallica, lib. 4 page 60. "Alicubi denique jus totius alicujus loci, rivulis, valleculis aliisque terminis definiti tribuitur uno domino." Et pag. 62. "Uni autem domino licitum est possidere unam integram fodinæ aream, duas, tres, pluresve: unum integrum cuniculum ant plures: modo jussis legum metallicarum et decretis magistri metallicorum obtemperet, quia qui solus facit impensas in fodinas, si fuerint metallis fecundæ, solus ex eis fructam capiet." § Saenz, Tratad, de medidas de minas, cap. 2, n. 18" Hence it follows, that the 31st ordinance of the new code has repealed the old ordinance concerning new discoverers, by authorising them to take more than two mines upon one vein, leaving three pertenencias between." to select them, and therefore authorising him to take them either contiguous or separate, as he pleases. 15. It is true, that the 31st ordinance of the new code says, that the first discoverer may hold as many mines as he pleases, observing all that is contained in the ordinances relating to this subject; whence Don Joseph Saenz seems to infer, that the 31st of the old ordinances ought to be observed with regard to the intermediate space to be left, although not with regard to the number of the mines allowed to be taken; but this is contrary to the letter of our 22d ordinance, which uses the most extensive and redundant form of expression. And as this and other ordinances of the new code, treat of the larger number of mines and priority of choice allowed to the first discoverers, it is, no doubt, to these, and the observance of their provisions, that the 31st refers, and by no means to the 31st of the old ordinances, which is wholly repealed by the 22d ordinance, now under consideration, in favour of the first discoverer, whom it empowers to take a larger number of mines, by means of registry, and also to take them contiguous, without being obliged to leave the intermediate space of three mines. 16. The ordinance next proceeds to speak of the other persons who may come after the first discoverer, and directs that they shall set up stakes, or alter their boundaries in their order, "as they shall discover ore;" which implies, that they cannot take mines, or set out or alter their boundaries, unless they shall have discovered ore in the pit registered as the principal pit.* The ordinance also imposes on them the same obligation of setting up a fixed stake in, and measuring out, each mine, within ten days, but does not authorise them to trespass upon pretenencias already staked or measured out by other persons; for the very object of defining the boundaries of a mine, is to prevent disputes of this kind between neighbours ;† and he who has first measured out and occupied a particular spot, is in a better situation than the other. 17. After the first discoverer has measured out his boundaries, the rule to be observed with regard to all other persons, as to such new discoveries, is, that they shall have their boundary stakes set out in the order in which they make application for that purpose, so that it is the diligence of the party in applying first, which entitles him to a preference over the others; which is as proper a mode of apportioning out the vein as could be adopted. In Peru, the rule is, that the discoverer shall declare upon oath, what personswere sinking trial pits on the ground, at the time of his discovering the vein; and if any of them apply within 30 days, the judge is to give them a mine *See chap. 5, ord. 17, as to registry. † Agricol. de re metall. lib. 3, pag. 60. “Area cujusque fodinæ ideo terminis describitur, ne lis oriatur inter fodinarum vicinarum dominos." 106. Ord. 6, tit. 1, concerning discoverers; Escalona, Gazoph. lib. 2, p. 2, cap. 1, pag. 105 and |