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fictitiously is a mere trustee or agent, and not the lawful owner. party actually in contemplation at the time of the transaction, shall prevail against the fictitious nominee; for the lawful owner not wishing his name to appear, is at liberty to insert that of some other person, provided he do so in good faith and without fraud, and with some honest motive; as may be learned from Salgado, Vela, Barbosa, Menochius, Gratianus, Casaregis, Tuschi and many others.* It may therefore be inferred that the same thing may be done with regard to the registering of mines, without incurring the penalty.

7. Third, because the objects of this ordinance are twofold; the one to prevent injury to the lawful owner, and therefore to disable any other person from usurping possession of the mine, by registering it for himself; which object no longer exists when the owner consents to the act: and as it is, in such case, incumbent on him to secure himself by taking a declaration of trust from the nominee, he must, if he omit to do so, suffer the consequences. The other object of the ordinance is, to have it made known what persons, being the owners, are liable to the payment of the duties, and to the observance of the ordinances, which object may be attained, notwithstanding the insertion of a fictitious name in the registry.

8. And, finally, because a penalty limited in one particular case, ought not to be extended by construction to a different case, even though within the reason of the rule. And as the case to which this penal ordinance applies, is that of one person usurping the mine of another, when he has a right to it by way of pledge only or in some other manner, as explained above, the penalty ought not to be extended to the distinct case which we have put.

9. Notwithstanding all these arguments, our opinion is, that if the tenor and purport of the ordinance be well considered, it will be deemed to extend to this case. First and principally, because the feigned name being entered in the register, the nominee would be entering in the register as his own, a mine which is not properly his, and the penalty must consequently be inev itably incurred; for there can be no doubt that when the nominee presents the ore, and makes the registry in his own name, upon the suggestion that the mine is his, while it really is not so, the document is publicly and notoriously made applicable to him; and if the rule of the ordinance does not hold in

Salgad. Labyr. 2, p. cap. 24, per totum. et signanter a. n. 35. fundat majoratui ad quiri emptum pecunia ad emptionem prædiorum destinata, quamvis possessor emat proprio nomine. Vela, dissert. 38, a n. 19, copioce illustrat senatus Granatensis decisionem qua reditum regium Juro emptum nomine Michaelis, et gravatum ab ipso; ad Franciscum fratrem, et ipsius hæredes pertinere declaratum fuit. Et n. 20, ibi: "Veritas in quolibet actu duntaxat inspicienda est, quam simulatum factum non immutat." Et prosequitur multitudine legum et AA. Barbos. in L. 4, Cod. Plus valere quod agitur, &c. Menoch. lib, 3, Præsumpt. præs. 125 Gratianus, Discept. c. 131, n. 17. Casaregis, de comm. tom. 1, disc. 43, n. 33 et 39. Tuschi. lit. 6. conclus. 257, n. 38, et concl. 265, n. 20.

↑ Cap. renovantes, dist. 22. Cap. odia, de r. j. in 6. L. cum quidam, ff. de lib. et posth. Tiraquel, de retract. in præf. n. 62 et 63. Menoch. cons. 900, n. 13. Tusch. lit. R. conc. 31, n. 43.

a case like this, it will be impossible to find one to which it can more reasonably arply.

10. Second, because if the substitution of the name of one person for that of another were permitted, there would be much opportunity for fraud: one consequence would be, that the penalties would be avoided, by alleging that some cther person was the actual owner; another, that the payment of the duties world be cluded; another, that one person would be enabled to hold more than two mines upon the same vein, all acquired by the denouncement or registry, contrary to the ordinances," which permit an ordinary miner (not being a discoverer) to acquire mines beyond that number, by purchase and sale, or some other such mode, only; but by assuming a feigned name, one person might obtain possession of any number of mines at pleasure; and various opportunities of fraud would be let in, which, to an evil disposition, readily suggest themselves. But protection should never be extended to eraft or fraud.†

11. Third, because the law ordains.‡ that any person who shall discover a mine of gold, silver, &c. shall be bound to register it within the term of 20 days, at the same time exhibiting the ore, and stating who is the person that has made the discovery: all which requires that the true and lawful owner should himself come forward. And this rule is broken in upon by substituting a feigned name, which is therefore sufficient to make the penalty attach. And as we have observed, in explaining the 17th ordinance above-cited, the objects of this exactness in regard to the forms of registry are various, embracing both the attainment of greater certainty as to the ownership of the mine, and the enforcing the duties of the registered miners; all which would be alike frustrated, if the assumption of a fictitious name were permitted.

12. Fourth, because it is provided by another of the ordinances,§ that no person, of whatever condition, may take a mine for another, except by virtue of an authority, or unless he be a hired servant or the person for whom he shall take the mine; and that if either of these qualifications be wanting the mine shall be considered as forfeited, and liable to be denounced, without any appeal on the part of the person who takes the mine, or of him in whose name it may be taken. If, then, this be the case, when there is no disguise or assumption of a fictitious character, there is still more reason that it should be so, when such a course of proceeding is resorted to.

13. Besides which, the principal object of the ordinance is, to forward the administration of justice, and to promote the general good, by establishing a registry of this valuable and important description of property, upon

* 31 and 32, of the old ordinances, of law 5, tit. 13, book 6, Collection of Castile. Chap. 8, infr. ordinance 31.

+ Salgad. de retent. p. 2, cap 20, a n. 69. Gonzal. in cap. super literis, de rescript. n. 10, qui jura cumulant.

Chap. 5, ordinance 17.

Chap. 15, ordinance 82.

the basis of regularity and correctness; and to leave no opportunity for the exercise of fraud, which would be let in, by allowing a feigned name to be assumed, or the name of one person to be substituted for that of another. On this ground it is, that in the registery of shipping, which is a parallel case, it is made unlawful to enter another person's vessel in your own name, or your own vessel in another person's name; but in such case the vessel is declared forfeited, together with three or four times the value; as will be found on reference to our laws of the Indies, and to the illustrations of those laws given by Don Joseph de Veitia.* From all which it is to be inferred, that the registering a mine in another person's name is altogether to be discountenanced, and incurs the penalty of the ordinances.

14. And there is no weight in the arguments which have been stated on the other side of the question. Not in the first and second, which are founded on the civil law, and other authorities, making it out to be lawful to make a purchase in the name of another person, one party being named as the owner, whilst some other is so in fact; for there is an evident difference between this case, and the case we are considering, namely, that in all other transactions the assumption of another person's name is a matter which passes between individuals, who adopt this course for their own private ends, and with a view to the accomplishment of so ne reasonable object, and generally without any fraudulent intention; as when a husband makes a purchase in the name of his wife, or the chief officer of a corporation in his own name; and in a word, any confusion in the title which it may occasion, will result to their own individual loss alone, and therefore the laws consult the rights of the real and lawful owners; but the assumption of a fictitious name in the case of the registry of mines, and in reference to the right of ownership in them, is, as we have shewn, prejudicial to the interests of the public and of the revenue, and is a fraud upon the ordinances.

15. For the same reason, there is as little weight in the third and fourth arguments, for although the assumption of the name of some other person in the registry be consented to by the owner, although such person be not guilty of any encroachment or fraud upon the rights of the owner, against his consent, and although he may pay the duties, as the real owner might otherwise have done; yet it must be borne in mind, that the ordinances are framed for public objects, some of which, amongst others, are, to guard against fraud, to prevent the holding more mines than are allowed by law, and to maintain a proper regularity in all that concerns mining property. And again, although the less important reasons above-mentioned should fail, yet the stronger and more forcible arguments which are founded on the fact of the registry being declared void, and the penalty imposed by the ordi

* Law 34, tit. 33, law 69, tit, 35, book 9, of the Collection of the Indies. Veitia, Norte de a contractacion de Indias, lib. 2, cap. 17, n, 10.

nance, are not so easily to be got over, and render it impossible to allege, that by the construction contended for, a penal rule, applying to one particular case, is extended to a distinct case; the case under consideration, of one person entering in the register, a mine which is not his own, being expressly comprehended in the ordinance, and being the precise case against which the fine and penalty imposed thereby, and by the other ordinance above-cited and agreeing with it, are directed.

CHAPTER VII.

OF MINES HELD IN PARTNERSHIP-OF THE NUMBER OF HANDS REQUIRED TO BE EMPLOYED IN THEM-OF THE MODE OF REGULATING THE WORKS AND DIVIDING THE PRODUCE-OF THE DIFFERENT KINDS OF AGREEMENT APPLICABLE TO PARTNERSHIPS IN THIS SPECIES OF PROPERTY-OF THE MODES IN WHICH SUCH PARTNERSHIPS ARE DETERMINED-AND OF THE NUMBER OF MINES THEY MAY LAWFULLY HOLD.

ORDINANCES XXI. XLIII. XLIV. XLV.

XXL Also, we ordain and command, that when any person shall register a mine or mines not wholly his own, he shall be bound to declare what share or shares he holds in them; and if he hold them in partnership, what share his partner or partners may hold in such mine or mines; under the penalty (if he do not do so), of forfeiting the share or shares he may hold, which shall go to the partner or partners, the share or shares held by whom, he has so omitted to set forth.

XLIII. Also, we ordain and command, that when two or more persons shall hold a mine in partnership, for the purpose of working it and raising ore therefrom, if any one of the partners shall require the other partners to set on hands, they shall be bound to set on twelve persons in the whole, if there be ore enough for the purpose, and if so many can work conveniently; or otherwise, as many as can conveniently work at once, according to the disposition of such mine, and the ore it may contain; and if any one of them, being required so to do, shall not set on his proportion of hands, then the mining judge shall examine into the disposition of the mine, and shall set on, at the expense of the owners of the mine, such number of hands as the partner was bound to set on, to make up his proportion of the number of twelve persons; in order that the working of the aforesaid mine may not come to a stand in consequence of such disputes.

XLIV. Also we declare and command, that if any one of the partners shall wish to set on more hands to work the mine, than such twelve persons, he shall be at liberty to do so, provided he give notice thereof to his partner or partners, in order that if they are willing to set on more hands, it may be

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.

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