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insufficiently worked for more than four months, or for certain other reasons," are ordered to be adjudged to the first person who shall apply for them. In making registry, the person, the place and the ore, only, are required to be manifested; but upon the denouncement of a mine for not being sufficiently worked, a summary judgment upon the question is requisite, and it is sometimes necessary to proceed to edicts or proclamations. They appear therefore to be distinct in form.

22. But they by no means differ in substance. First, because the object of both is to make a public mention of the mine, and to define its situation, for the purpose of obtaining a title to it. Second, because denouncement alone, gives no title to the property of the mine, but is merely in the nature of an accusation against the former owner, charging him with having allowed it to remain unworked, or with having come within some other ground of forfeiture; after a summary cognizance of which, the mine should be entered. in the register, together with the adjudication of the magistrate, and this more clearly appears from the 37th ordinance, which says, in reference to mines remaining unworked, "In such case he shall have forfeited, and shall forfeit the same, and thenceforth he shall have no right to it, unless upon making a registry thereof anew; and such mine shall be adjudged to any person who shall denounce it for being insufficiently worked, provided he go through the same proceedings," that is to say, provided he register it. Hence it is evident, that with respect to an old mine, which has been discovered before, there must be a new registry after denouncement.

23. Third, the 27th ordinance, when describing the mode in which the pits of two varas deep and one wide are to be made, for the purpose of having a stake placed in the middle of them, so that it shall not be liable to be fraudulently displaced, imposes the forfeiture of the mine as a penalty for not doing so, and declares," that any other person whatsoever may apply for it and register it as his own." Fourth, it is provided, by the 17th ordinance, now under consideration, that if the registry be not made in the manner and within the time prescribed, and the other formalities be not observed, any

* See the ordinances. The 17th and 69th impose this penalty in case of the proper forms not being observed in the registry; the 21st, for not declaring the names of a partner or partners; the 27th, for not setting up permanent and fixed stakes; the 32d, for taking a mine by the intervention of a third person, who has no authority for the purpose, not being a hired servant; the 35th, for not having sunk three estados after registry or denouncement; the 37th and 71st, for keeping the mine unworked for a longer period than four months; the 38th and 39th, for not sinking three estados after denouncement; the 43d, for purchasing a mine which is not sunk to the depth of three estados, in which case the mine and its value are declared forfeited: the 59th,. for not giving information whether the ore is proper to be reduced by amalgamation, or otherwise; the 67th, on account of certain persons being prohibited from holding mines; and the 18th, for the same reason. And the chief alcaldes, royal officers, mining notaries, judges, gov ernors, ministers and others, who are not permitted to purchase mines, are liable to forfeit them ander law 1, tit. 19, book 4, and laws 1, 2 and 3. tit. 20, book 4, of the Collection of the Indies.

other person whatsoever "may register such mine," which must be supposed to have been discovered before. Fifth, it is declared in the 35th ordinance, that all those who may "take, hold or acquire mines, whether already discovered or hereafter to be discovered, shall be bound, from the time of their registering such mines, if new ones, to deepen one of the trial pits they may have made in them, and if old ones, then one of the pits, &c." so that the word registry is applied alike to both new and old mines. Sixth, the 42d ordinance prohibits the sale of mines, until they are sunk three estados, and directs that the justice shall be advised of the sale, in order that it may be entered in the book of registry, and the like whenever there is a change in the ownership of the mines.

24. Independent of these considerations, our position may be sufficiently made out, by reference to the etymology of the word registry, which in the Latin tongue, is commonly called registrum, but more properly registum; which is as much as to say res gesta, and signifies any judicial order or proceeding, affording certain evidence and testimony of some judicial act; as may be seen in the Thesaurus of the Latin tongue, and in Quintilian, and as is also shewn by Solorzano, when treating of the registry of merchandise, upon the authority of Vopiscus, Prudentius, Petrus Faber, Cujacius and others; and the like explanation is also given by Dufresne. And there can be no doubt but that the justice and notary give as certain evidence and testimony of the proceedings concerning new mines, as of those concerning denounced mines, for they are all entered in the same register.

25. The above is sufficient to prove, that there is no substantial differenco between denouncement and registry; and that if a mine be denounced upon. any of the grounds enumerated in the ordinances, it must be registered in the same manner as a mine newly discovered upon the surface of the earth; and that the proceedings had, whether in regard to the new or old mines, must alike be made to appear upon the record, which is called a register, for the security of the discoverer and denouncer respectively. And if the judge or miner be well advised of these sound principles, deduced from the ordinances themselves, several irrelevant grounds of dispute may be avoided, as we shall notice by and by, when treating of priority of registry, one mine

* Albertus Burerus, Thesaur. ling. Latin. tom. 3, lit. R. Regerere; in librum referre quæ audiendo accepimus. Regestum Latine dici potest quod vulgo registrum vocamus teste Budeo, de rhetor. Ciceronis. Quintil. lib. 3. cap. 8. Sunt enim velut res regestæ in hos commentarios. Solorzan. Polit. lib. 6, cap. 10, n. 6. L. illicitas, §. veritas, ff. de off. præsid. Vopiscus, Prudentius et alii apud Petrum Fabrum, in. L. si librarius, 92, ff. de r. j. Cujacius, lib. 15, Observ. cap. 17, &c. Dufresne, Glossarium ad scriptores media, et infimæ latinitatis, tom. 5, lit. R. verbo Regestum; liber in quem regeruntur commentarii quivis. Regesto scribarum, apud Vopiscum in Probo. Regesta, quasi iterum gesta; Registrum pro registum : liber qui rerum gestarum memoriam continet, unde dicitur quasi rei gestæ statio. L. 8, tit. 19, part 3. The registraries are the other notaries aforesaid, who are employed in the king's palace, and whose office is to make entries in the books which are called registers.

being entitled to be measured out before another, or otherwise, according to the greater or less time elapsed since making the registry."

CHAPTER VI.

A MINE, NOT THE PROPERTY OF THE PARTY, CANNOT BE REGISTERED BY HIM.

ORDINANCE XX.

ALSO, we ordain and command, that no person shall presume to register, or to enter in the register, a mine which is not his own property, under the penalty of 1000 ducats, to be imposed upon the person so offending; one half to be applied to the purposes of our exchequer, and the other half to be divided between the informer, and the judge who shall pass sentence; and over and above this, such person as aforesaid, shall forfeit the right he may have acquired to such mine.

CONTENTS OF THE COMMENTARY ON THIS ORDINANCE.

1. A difficulty occurs in the construction of this ordinance.

2 and 3. The meaning is, that a creditor, holding a mine by way of pledge, cannot register it as his own; that no person can register a mine during the term of four months, in which it is allowed by law to remain insufficiently worked, and that a tutor or curator cannot register in his own name, a mine not belonging to him in his own right. 4. The question put, whether the real owner can enter the registry in a feigned name. 5. First argument in favour of the affirmative, that the substitution of a feigned name is sanctioned by law.

6. Second, that the same thing is done in many other transactions.

7. Third, that the reason of the ordinance does not hold in this case.

8. And that a penal regulation is not to be extended by construction, from one particular case to another distinct from it.

9 to 13. The question resolved in the negative, on the ground that such substitution of a feigned name, is contrary to several of the ordinances, to public order and to the regular form of mine proceedings.

14 and 15. Reply to the arguments on the other side.

COMMENTARY.

1. This ordinance is in accordance with the 19th of the old ordinances,† except that the latter imposes a penalty of 200 ducats, upon any person who shall register a mine not his own, which penalty the new ordinances increase to 1000 ducats; besides declaring that he shall forfeit the right he may have acquired to such mine. The construction of this ordinance appears to be attended with considerable difficulty, particularly if we refer to the marginal

*Infra, cap. 11.

Cap. 19, law 5, tit. 13, book 6, Collection of Castile.

note in the old collection, which runs thus, "no person shall register the mine of another, although he have a right to it," for if he have a right to it, and a right already acquired, it cannot be said to be the mine of another. Besides, if the mine be one in actual work, the owner will surely oppose the registry, whilst if it should be a mine which has been unworked for a longer period than four months, then, any person being at liberty to denounce it, there can be no impropriety in the party's doing so, and registering it as his But notwithstanding this appearance of difficulty, the sense of the ordinance admits of being clearly made out, as applying to more than one

own.

case.

2. The first case to which the ordinance applies, is where a creditor holding a mine by way of pledge, or claiming a lien upon it in respect of supplies furnished, pretends to register the mine, in satisfaction of what is due to him; there can be no doubt that he has in this case a right to do so, by virtue of the express or implied pledge; but as the mine is, in effect, the property of the debtor and under his dominion, the creditor cannot, upon his own authority merely, register it as for himself, nor acquire a right to it; he can only demand payment of his debt, or apply to the justice to have execution levied. Another case is, when some person makes a new registry of the mine, before the expiration of the term of four months, during which it may by law remain insufficiently worked;" for under these circumstances the owner may object within the term, in which case the registry so made will be rendered void. A third case is when one person having discovered the ore, some other person comes in to make registry within the term of 20 days, allowed by the ordinance for registering the mine.† In any of these three cases, the person who has registered the mine, such mine being the property of another, shall forfeit the right which he may claim to have acquired thereby, besides the penalty above-mentioned.

3. The like is the case, if a tutor, curator, defender or agent, should register in his own name, a mine lawfully belonging to a person under age, an absentee or other party, each of whom shall have his proper action to annul the registry, which shall be annulled accordingly, in all cases of this nature that may arise, on account of the improper and fraudulent conduct of the party, in doing that in his own name which ought to have been done in the name of the lawful owner, or of the minor or ward; all which is abundantly demonstrated by Salgado.§

Chap. 17, ordinance 37.

† Chap. 5, ordinance 17.

A person appointed to defend the interests of a debtor's estate, upon his giving up his prop. erty in favour of his creditors.-Trans.

§ Salgad. Labyr. p. 2, cap. 24, n. 45, ibi: "Hoc fundamentum exacte exornat per jura et DD Gutierrez, de tutel. 2. p. cap. 10, per totum, qui n. 1, apponit, quod licet actus in dubio præsum. atur factus nomine proprio, limitat non procedere, in tutore vel curatore faciente id quod nomine

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 arguments 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 shall prevail over any fictitious suggestions assigned.*

6. Second, because it is a matter of course, in the case of a contract of purchase 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 inscripseris; tamen si possessionem tenens dominus effectus es, ob eam rem frusta calumniam malieris, quamvis ipsa contractus tabulas habeat, reformidas," L. 5. et 6. ff. eod; "Quia res gesta potior quam scriptura habetur." Tot. tit. Cod. Plus valere quod agitur, quam quod simulate concipitur.

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