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clause, cum libera, is not sufficient, although Rosenthal, in his work on feuds considers it sufficient."

10. The fifth, and principal reason is founded on its being the great object of the ordinances to prevent fraud, to distibute the mines amongst a variety of persons, and to assure the right of each proprietor; for the person making registry might be induced to make use of some other person's name, from his being himself one of those who are prohibited from taking mines, or, being capable of taking mines, he might yet, under cover of another person's name, take a greater number of mines than is allowed; and it might also happen, even supposing the mine to be really taken for another person, that the latter might elude his obligations, and avoid the penalties of the ordinance, by alleging that he had given no order or authority for taking the mine.

11. And as the object of the 32d ordinance is to guard against such frauds as these, and others of a like nature, which might be practised, it requires an authority to be given, which must be special, to shew with certainty in whom the right is vested, and to shut out every opportunity of fraud: but the law is satisfied, if the registry be made by a hired servant in the name of his master, to whom, all mines taken by the servant, in any other name, are made over by the law. But if he be not an agent especially authorised, or a hired servant, the mine is liable to be denounced, and shall be adjudged and given in possession to the party denouncing it, and shall by no means revert, either to the party who has taken it, or to him in whose name it may have been taken; such being the penalty imposed, if the requisite that the party registering shall be furnished with an authority, or be a hired servant, be wanting :-" In default of any of these requisites."

12. And although there is an ambiguity in these words, which convey the idea, that it is necessary that the party should be a hired servant, and should likewise have an authority, to enable him to make registry for the other; yet they must evidently be construed with reference to the disjunctive sentence preceding, "Unless he have an authority, or be a servant receiving wages;" for the rule, sometimes sanctioned, of construing a disjunctive as a conjunctive, and vice versa, clearly cannot apply in this case, where the subject matter will not admit of it, as it is impossible to entertain a doubt, that any person may, by virtue of a special authority, make registry for another, without being a servant, and that, under the 33d of the old ordinances, a servant may register a mine for his master, without a special authority for that purpose.

13. A question might be raised, whether a mine can be registered for another person, security being given, that the transaction shall be ratified, and whether it would be liable to be denounced during the term, under the penalty declared in the 32d ordinance? We reply, that although

*Solorz. ubi proxim. sub eod n. 19.

the ratification of an act is regarded as equal to a previous authority to perform it, and security is very commonly allowed to be given in other matters, yet it must be observed that this is the case with regard to matters which require a general authority only, and not a special one, such as is required for the purpose of registering a mine; for, as is shewn by Covarrubias, from several texts and authorities, the law will not presume the

special assent of the absent party.

14. The judge therefore, must not allow registry to be made in the name of another person (unless a third servant or slave, who must necessarily acquire the property for his master), without a special authority, this being a formality required by the ordinance, and thereby made so essential, that its omission incurs the penalty of irrecoverably forfeiting the mine. But if the judge do in fact, and contrary to law, allow the registry to be made, it will be good, provided it be ratified whilst the transaction is still unimpeached; that is to say, provided no one have denounced the mine in the interim : but should any one, in the mean time, denounce it, he has a just right to do so; and the law and the ordinance, being framed for this particular case, and imposing certain terms and conditions which ought to have been fulfilled in the specific form directed, and at the specific time prefixed,-which is that of making registry,-must take their course. This however, will not apply in case of any evident and reasonable impediment, which exception we have noticed when treating of registry.§

15. The question may also be raised, whether a general authority, with a clause for free and general administration, is sufficient for the purpose of registry? We reply that it is not; for although many authors are of opinion that in matters requiring a special authority, a general power, with a clause, cum libera, is sufficient, yet others consider this clause merely as a form of the notaries, and conceive that, not being a disposing clause, it has no enlarging operation; insomuch, that it is subject to many limitations, thirtytwo of which are enumerated by Barbosa, and some also by Fragoso, as may be seen in the places cited by Pareja. And there being a penalty in question, and the law requiring the greatest certainty in the party making registry, the clause of free and general admission is not sufficient; but a special power is necessary, as removing all doubt, and not leaving room for any kind of

* L. 10, tit. 34, part, 7. L. 1. §, si ratum, 6, ff, quod jussu, cap. ratihabitionem, 10, de r. j. in 6. Innumeri apud Vela, dissert. 38, n. 50,

L. 10, tit. 5, part. 5, L. sed et hæ, in princ. ff. de procur.

ff.

Covarrub. 1, var. cap. 6, n. 5. L. patri pro filio, ff. de minor. L. filius, Cod. de pact. L. qui hominem, §. gener. ff. de solut. L. non solum, ff. de solut. mat. L. qui aliena, §. quamquam, de negot. gestis.

Chap. 5, n. 20.

Pareja, de instr. edit. tit. 5, resol. 10, n. 66.

¶ Chap. 5, ord. 17, "The person who has made the discovery and registry." And chap. 6, ord. 20, "No person shall presume to enter in the register a mine which is not his own."

uncertainty, which, as we have before observed, is agreeable to the opinion of Solorzano, in reference to grants of land from the crown."

16. Having established then, that a mine may be registered by an agent specially authorised, or a hired servant, the 33d and 34th ordinances (which follow the 35th and 36th of the old ones,) proceed to enact three provisions. First, that the steward may measure out and set out boundary stakes for such mines as he shall take, until his employer shall visit the mines. And this is reasonable, for a person who has authority to perform the precedent act that is to say, the registry, must have authority to perform the act necessarily consequent, that is to say, to measure out the mine, and set out boundary stakes; † and since a servant is authorised to make registry, he is also authorised to apply to have the boundaries set out, or to set them out as he may think proper.

17. Secondly, they provide, that after the arrival of his master, the servant can no longer apply for, or set out boundary stakes, nor, without his master's authority, alter the position of such as the former may have set out, or left set out. The reason is, that the master being the lawful owner, his acts cannot be impugned or varied by the servant or steward, without a special authority; and that the latter being bound to obey, has no power or right to act in opposition to his master, much less in a matter of so much moment as that of altering the boundaries; for it may happen that the greater number of varas are taken in the more barren direction, and the smaller number, or none at all, in the more fruitful one; on one side the ground may happen to be barren, on the other it may produce the richest ores of silver and gold; and if, in the alteration in the boundaries, it should turn out that barren ground has been taken, and silver and goll relinquished, the mischief is considerable. The owner then, alone, as arbiter and manager of his own affairs, is competent to do this; but if he himself, or a party who has his special power and authority to do it, should act erroneously, he must take the whole blame upon himself. Without such an authority therefore, the steward cannot alter the boundary stakes which his employer may have set out or have left set out, on his absenting himself a second time, after visiting the mine.

18. The third provision is, that even if required to set out the boundary stakes, neither the steward, nor any other person living with the owner of the mines, even though he have charge of the mine and hands, can vary or alter the boundary stakes, without a licence and authority; the master being at liberty to insist on the nullity of such an act, and being by no means prejudiced in consequence of it. And the reasons are the same as set forth in the preceding section; with this further reason, that the steward not being the owner, is not the party who should be required to set out the bounda

* Vide ubi supr. n. 4.

† Ex trita regula, qui vult consequens, vult antecedens.

ries. The master himself therefore, ought to be called upon to do this act, and he ought to be summoned personally, if he be on the spot, or within the distance of ten leagues, agreeably to the ordinance, and any thing done, without summoning the lawful owner, is void, and cannot operate to his prejudice. And the master being the person who ought to be called upon and summoned, the steward cannot act for him without a special power and authority; the right of altering the boundaries, and of taking a greater or less number of varas, in this or that direc.ion, upon which may depend the acquisition or loss of great riches being one which is not to be given up or relinquished, except under his special licence and authority.†

19. But hence arises the following difficulty, namely, supposing the mine to be staked out, and the owner to be absent at a greater distance than the ten leagues limited in the 24th ordinance, can the steward alter the boundary stakes, if required to be set out on some side or sides, on which the owner has not set them out? The answer is, that he cannot do so without a special licence and authority, and that he must advise his employer within the term of fifteen days, allowed by the same ordinance; but that if he shall not do so, then the owner of the mine must take the blame upon himself, for not having left him an authority to vary the boundaries, when he must have been aware that the boundary stakes might be required to be set out on any side. Besides, if, having the opportunity of leaving such an authority, he has chosen to absent himself at a great distance, without doing so, it is a sign that he did not think it worth while. And finally, it being quite clear that the 33d and 34th ordinances prohibit his altering the stakes which his employer may have set out, he can have no authority to change them, without a special order for that purpose.

20. Neither is this opinion affected by the 24th ordinance, according to which, when the owner is absent at more than ten leagues distance, the application to have the boundaries set out is to be notified to the mayor, and a procla mation is to be posted up and published; for this ordinance applies to the case when the owners of mines not yet staked out, are called upon to set out their boundaries, in which case a summons is served upon the steward, at his employer's house, or at the church, and proclamation is made, that he may be informed of it, and may set out the boundaries within fifteen days, in default of which they are to be set out by the justice. In this case, the mine not being staked out, it is reasonable that the steward should, during the absence of his employer, set out such boundaries as he may think proper, and afterwards advance or alter them, either under his authority, if he can procure it within the term, or without such authority, if, from his employer *Chap. 10, supra, ord. 24.

Vela, dissert. 38, n. 84, ubi juribus et D D. probat non posse fieri novationem absque speciali domini mandato. Olea de cess. jur. tit. 2, q. 6, n. 24 et 25. Quod procurator etsi liberam habeat administrationem, cedere non potest, neque donare.

being at a great distance, or from any other serious impediment, it be impossible to procure: and the owner not having left the boundaries set out, the steward does not, in this case, undo anything his employer has done, or alter or vary the boundary stakes after their position has been approved and inspected by the latter (which is what our ordinance prohibits), but he sets out the boundaries originally, for the benefit of the mine, and he is served with the notice and summons, that he may advise his employer and defend the rights of the mine. And it is reasonable, that a party allowed to regis ter a new mine for his master, should also be at liberty to set out the boundaries, when the latter has not done so; it being irregular, when a mine is registered, to leave the boundaries undefined, and it being impossible that any one can be better qualified to defend the rights of the miner, or to as sign the most desirable boundaries, than the steward or curator of the mine: and the act of the steward, in thus staking out the boundaries of the mine, can never be impugned by his employer, when done in compliance with the ordinance, and upon the requisition of another party.

21. But in the case in question, the circumstances are the very reverse; for it is there supposed, that the owner has left the boundaries set out; and if, being aware that the surrounding miners might require the boundary stakes to be set out on the other sides, he has not left any authority to alter them, he must take the blame upon himself, and it must be considered as an indication, that he is satisfied with the boundaries he has left regularly set out and therefore the steward cannot alter them, without an order or authority nor can he counteract the will and act of his master, on pretence of his being under any impediment, either real or alleged. In a word, when the mine has not been staked out, it may be interpreted to be the will of the owner that it should be staked out; but when he has left the boundary stakes set out, his will must be interpreted to be the very reverse, unless he leave some further order for the purpose. Upon which point we have already touched, in treating of the 24th ordinance, to which we refer.*

CHAPTER XVI.

OF THE DEPTH OF THREE ESTADOS, TO WHICH THE MINES ARE REQUIRED TO BE SUNK, AND OF THE TERM ALLOWED FOR SINKING IT.OF THE CASES WHICH ARE EXEMPTED FROM THIS OBLIGATION—A MINE CANNOT BE SOLD UNTIL SUNK TO THIS DEPTH-OF THE FORMALITIES REQUIRED IN SELLING MINES SUNK TO THE PROPER DEPTH.— WHETHER THERE BE ANY REMEDY IN CASE OF LESION ENORME,† IN

*Supr. chap. 10, num. 7.

+ Lesion enorme is a fraud to the amount of somewhat more or less than one half the just price of the thing sold; and which, in ordinary cases, renders the sale liable to be annulled.

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