hardness, within ninety days. Secondly, where springs of water break out (whence, as some are of opinion, the name of vein is derived, from the resemblance to those of the human body); in this case, the lower levels. become inundated, and it is impossible to work them, until the accomplishment of the draining by means of engines employed for the purpose; which generally requres preparation, expense, and a longer period than three months and it will often happen, that the draining, though commenced immediately upon denouncing the mine, is carried on for a long time, without its being found possible to sink to the required depth in any of the pits, from their being under water. In the mines of Porco and Verenguela, in Peru, the ground being porous, and the difficulty of carrying on the works in face of the water being very great, they are only allowed to be denounced, for insufficient working, in the months of December, January, Febuary and March, during which alone it is practicable to carry on the works.*

10. The third case is, when there is a falling in of the pit, or of the other works, or pillars of support; during the timbering and repairing of which, the sinking upon the vein cannot proceed. The fourth is, the occurrence of war, mortality or famine, at the place, or within twenty leagues around; for in such case, the ordinances do not even require the number of four persons to be kept at work; and consequently the obligation to proceed in sinking, is no longer in force. And so in several other cases, which no foresight can provide for, and in which, if there be no fault or omission on the part of the miner, he should not incur the penalty; and a person who should, in a case of this kind, denounce the mine, on the ground of its not being sunk to the proper depth, should be resisted, as being actuated by malice, upon the judge ascertaining, as required by the ordinances, that the circumstances were accidental and unavoidable, and that the miner had it not in his power to overcome the impediment. And although suits, upon denouncements of this description, for not sinking to the proper depth, rarely or never occur in the tribunals, it is by no means unnecessary to provide for such cases, their non-occurrence, at present, being attributable, either to the abundance of the mines, or the tolerance of the justices, who ought, in conformity with the so often repeated direction of the ordinances, to urge the works, in order to stimulate to a more brisk course of working in the mining districts.

11. We recollect to have remarked in another place, that upon its being ascertained that the mine has been sunk to the proper depth, possession may be demanded and given, at the end of three months from the registry; so that it would seem that without sinking it, the miner acquires no right to be put in possession as lawful owner, having failed to comply with the condition imposed by the ordinance, when conferring the right of property and dominion. But, as in the case of the veins being inclined, or of the occurrence of

* Ord. 10, tit. 7, concerning insufficient working; Escalona, Gazophil, lib. 2, p. 2 cap. 1, pag. 117.

any accidental circumstances, operating as obstacles, the law dispenses with, or suspends the necessity for sinking to the required depth, the miner may, in such cases, demand, and the judge must give, possession of the mine.

12. From all that has been said, we may collect how just and reasonable are the provisions of the 42d ordinance of the new code, and the 45th of the old ordinances, which prohibit the sale of a mine or any dealing in it, until the three estados be sunk, under the penalty of forfeiture of the mine, and of the vendor losing the price which might be given for it, the mine being open to denouncement. And this,-First, from his not having acquired a perfect right of possession and property, by sinking the required depth, which, as mentioned above, is a condition prescribed by the ordinance. Second, because the vendor should not be enriched with what is not his own. Third, because mines are not subject to be dealt in, or reckoned as the property of the subject, until sunk to the proper depth. Fourth, because, as the ordi nance observes, it is the practice to sell some mines and take others, with a view to sale, without ascertaining whether they contain ore or not, which is a manifest fraud upon the purchaser, who incautiously falls into the snare, not seeing that he might denounce other mines of equally good quality, and demand to have them adjudged to him and forgetting that he may be giving either a very high, or a very low price, as it may turn out. And finally, because the ordinances being framed with great strictness (as is evident from the time being now limited to ninety days instead of the more enlarged term of six months, formerly allowed), it would be a fraud upon them to sell the mines within that term, without having observed the conditions which they require.

13. The 42d ordinance proceeds to provide, under the same penalty, that upon selling or dealing with a mine sunk to the proper depth, the purchaser shall give notice to the justice, that the transaction may be registered. And so, if a change in the ownership of the mine occur in any other mode. The object of this rule has been stated when treating of registry; it is, that it may appear with certainty in whom the right of property is vested, and from whom the crown dues are to be recovered: but the question here occurs, whether the purchaser of a mine sunk to the proper depth, is himself required to deepen it three estados further? And whether a person succeeding to the possession of the mine, under other circumstances, is obliged to do the same; in like manner as a person to whom it is adjudged for insufficent working, and who is bound to do it, notwithstanding its having been sunk before? This question arises, particularly with reference to the opening of the 36th ordinance, where it is stated, that forasmuch as it is provided and commanded, by the 35th ordinance preceding, and by other ordinances, that such persons as shall take, hold or purchase mines, or become

*Vide chap. 5, n. 9.

possessed of them in any other manner, shall be obliged to sink, &c. From which preamble it might be inferred, that every new possessor is obliged to sink to this depth.

14. Notwithstanding this, the contrary must be taken to be the law; namely, that a purchaser or any other party, lawfully succeeding to the rights of the former possessor, upon acquiring a.mine sunk to the depth required by the 42d ordinance, is not obliged to sink a further depth of three estados, within the term of three months from the date of his entry into possession, and of the registry of his title of succession; but that the depth that has been sunk by his lawful antecessor in title, shall avail for him, and that he shall be at liberty to proceed with the workings as he may find most convenient, the mine not being liable to denouncement, but being view ed as if it were still in the possession of his predecessor, to whose real and personal rights, in respect of the mine, he has succeeded. The reason of which is, that the priority of the registry is computed from the time of the first possessor, and through all the subsequent ones, who deduce their title. from him, as we have explained elsewhere;* and therefore, the mine having been sunk to the proper depth by the predecessor, from whom the title is deduced, it is not proper that a new obligation to do so, should be imposed on his successor, who is not to be regarded, for this purpose, as a new person, but as one and the same with the person from whom he deduces his origin and title. But, with regard to the new denouncer of an old mine, which has been once sunk to the proper depth, the case is just the reverse; for such a party is by no means the lawful successor of the person who has left the mine insufficiently worked, or who has otherwise incurred the penalty of forfeiture, under the ordinances; but is a new possessor, under a new title, granted him by the ordinance, by virtue of his denouncement and registry, from the date of which the priority of his right is to be computed; the mine being considered as a new mine, in his hands, and he himself being regarded as a new proprietor, which we have before remarked in another place.†

15. Nor does the 42d ordinance make it obligatory upon the purchaser of a mine sunk to the proper depth, to sink it anew; on the contrary, it supposes that this requisite has been already complied with, before the sale is allowed. And had it meant to impose this, it would not have passed it over, any more than it has passed it over in the case of the new denouncer, whom it declares liable to the obligation. Neither is the preamble of the 36th or dinance opposed to this doctrine; for of the ordinances to which it refers, none of them impose the obligation of sinking anew, and that ordinance itself only imposes it in the case of mines purchased without having been sunk to the depth of three estados, from the ore having taken its course in some unusual direction, or from any of those accidental circumstances which we have explained above, having occurred; for there can be no doubt that, in * Vide chap. 11, n. fin. Chap. 11, n. 12.

these cases, if the miner has done his best, in keeping the full number of hands at work, and has not been able to overcome the impediment, either from the ore taking its course in some other direction, or from some other reasonable cause, allowed by the justice, he is at liberty to sell the mine, the presumption of fraud and the other reasons for the prohibition, no longer applying; and that it will be the duty of his successor, when the impediment is overcome, to proceed to sink the mine to the proper depth. And finally, all that the 42d ordinance provides, is, that an account shall be given of the sale, but it makes no mention of sinking anew; on the contrary, it provides, that the sale may be made freely, subject only to the condition of registering the contract and the name of the successor.

16. Whilst upon the ordinances which touch upon the sale of mines, it will not be out of our way to inquire, First, how their price or value is to be regulated? Whence we may also learn the price at which they may be taken on lease; it being evident, that as they may be sold, so also they may be let on lease. To the question suggested, it may be answered, that the value of mines of gold and silver is, properly speaking, a matter of opinion, and can only be determined from conjecture, more or less probable, founded on the notions entertained of the vein, the quality of its ores, and other prudential calculations, the matter being in itself altogether uncertain. And the miner, properly speaking, purchases an uncertainty, which may be the means of enriching him or otherwise, as the quality of the ore may prove better or worse, and the more or less hard, and more or less constant. The nature of such purchases is illustrated by Cardinal de Luca, who refers to analogous cases, such as the taking of salt works on lease, and the farming of the public taxes. We have known 90,000 dollars given for the third part of a mine in the mining district of Bolaños, and the whole sum returned by the mine, within a few days. And the case may be compared, as in the text of the civil law and the glossary, to that of one who purchases of a fisherman, the contents of a single haul of his net, in which case the price of the thing, in itself uncertain, is estimated upon probabilities. So that there can be no fixed standard for regulating the price to be given upon selling or leasing a mine; the fancy, experience and prudential calculations of the parties concerned, being the only guides.

17. The second question is, whether, upon the purchase and sale of a mine, a charge of lesion enorme or enormisima can be set up? We reply, that it cannot. First, because it is so provided, expressly, by au ordinance

*Card. de Luca, de regalib. disc, 117, n. 6. "Ac propterea hujusmodi mineralium appalta tores, ad instar appaltatorum vectigalium et gabellarum, emere quoque dicuntur incertam aleam, ex qua ditari vel depauperari possint, juxta majorum vel minorum materiæ hæsitationem, in qua vere et proprie consistit valor seu substantia appaltus; juxta dictum consil. Socin. 156, lib 2, cum aliis, sup. disc, 105 et 107."

↑ L. 12, ff. de act, empt. et vend. "Si jactum retis emero, et jactare retem piscator noluit, incertum ejus rei æstimandum est." Gloss, litt. C. in fin. "Vel æstimatur quantum est verisimile quod esset captum, quod inspicitur secundum quod consuetum est.

of Peru, which declares, that upon the purchase and sale of mines, no one shall be at liberty to charge deceit or lesion enormisima, even though he should offer to prove that the mines were worth more or less at the time of the contract; insomuch that even though persons under age or Indians, be concerned, yet, if the sale be made with the solemnities of the law, the same rule must be observed, and the judges must act accordingly, under a penalty of five hundred dollars.*

18. Second, because in purchasing a mine, the profit or loss is eventual and contingent; and in matters where the profit or loss depends on chance, no regard is had to lesion; nor would it be just, as is shewn by Olea, upon the authority of various texts, and of Noguerol, Barbosa, Guzman, Gutierrez, Hermosilla, Larrea, Leotardo and others,† that a deficiency of price should be made good to the vendor, when he would not have to make good any loss sustained by the purchaser, however great. And nothing is so much exposed to great contingencies of profit and loss, as the working of mines, a business carried on quite in the dark, amongst alternations of borrasca and bonanza, and which is very commonly attended with great expense, continual theft, and ultimate loss. As therefore, the value of a mine must be regulated according to fancy, the greater or less knowledge the parties have of the quality of the ores, or the probability it affords of giving produce, it must be impossible, whilst the value of the subject matter remains incapable of being ascertained, to fix the amount of damage suffered in respect of the price.

19. As the 42d ordinance also treats of every kind of dealing in mines, by

way of sale, agreement or any other species of contract, this will be the proper place to notice that a mine may be given as a marriage portion, may be charged with a rent, may be granted by way of emphyteusis, or be hypothecated; and in a word, that mines may be made the subject of every species of contract applicable to the concerns of mankind: provided they be known mines, and be proved to be capable of yielding ore of a fair standard; as we have shewn elsewhere, upon the authority of Cardinal de Luca, and several others cited by him.‡

20. A further question, however, presents itself, namely, whether a mine can be made the subject of a precarious gift or loan? This question arose in a suit agitated before the audiency of Mexico, between Don Pedro Rome

Ord. 1, tit. 9, concerning the mode of trying suits; Escalona, Gazoph. lib. 2, p. 2, cap. 1, p. 123; where he cites Barth. in L. verum, § sciendum, ff. de minorib.

† Olea, de cess, jur. tit. 6, q. 10, n. 16. "Læsio in his contractibus qui lucro, et damno expositi sunt, non consideratur." L. 1, Cod. de pact. Noguerol, alleg. 37, n. 63. Barbosa, voto 25, n. 94, lib. 2; et voto 62, à n. 6. Guzman, de evict. quæst. 21, n. 33, ubi n. 44, asserit incertitudinis ratione licitum esse contractum emptionis alicujus juris vitalititii, quamvis repitus percepti sortem acceptam excedant. Larrea, alleg. 27; "Nec audiendum esset cedens et venditor cum non recte meliorationem petat, qui deteriorationem non esset postulaturus." L. cum pro pecunia, pen ff. de solut,

+ Vide chap. 2, n. 24.