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a r e raips session, a great desi i ore may be raisei, : frasi cine cer pari ataen, for by the 36 h oricasse, one way be, si as ergerace pares, often is raised, before siukiz the three esials; ai dereiire the partner who con. travenes the partnersdp rights, by working the mine on his own account alone, after making registry, will incur the penalty of the ordinance, even although the three estados are not sunk, nor the 90 dars, within which they
* § 4, Inst. de societ. “ bære ditatem solas lucri feceret, cogitur hoc lucrum communicare." Law 12, tit. 10, part 5.
+ Cap. 27, de r. j. in 6, “Scienti, et volenti, non fit injuria, neque dolus.", | Cap. 6. per tot.
must be sunk, expired, and although the possession has not been judicially made over to him, for the fraud and injury towards his partner are complete.
7. The latter, in prosecuting his action for the penalty, must prove the subsistence of the partnership, either by an instrument in writing, or by witnesses, or in some other of the legal modes by which an express or implied contract of partnership may be established ; that is to say, if the partnership be an express one, it must be proved by instruments, confession or witnesses; and if an implied one, by acts from which a partnership can be inferred, according to the clear doctrine of the law and the authorities." And, in a word, as the contracts by which the partial property in a partnership mine may be transferred, are of various descriptions, as we have explained above, that which is relied on in bringing the action for the penalty must be proved.
8. With respect to suits concerning the right of possession or property in mines, the order and method to be pursued are regulated by others of the ordinances, † to which we refer, observing, in the mean time, with respect to the action pro socio, that proper regard should be had to the circumstances of the parties, and the miserable condition of the discoverers ; who being the lawful owners of mines which Providence has permitted them to discover, are generally compelled to part with a share in them, in order to obtain some pecuniary assistance, or in consideration of the expenses being undertaken by some other party; and being sunk to the lowest scale of wretchedness, and often idiots, the consequence frequently is, that they are ousted altogether. As cases then, of this discription, afford many special circumstances in favour of these unfortunate persons, regard ought to be had to all the particular circumstances of the transaction, which being private, confidential and of difficult proof, demand the greatest discretion and tact in the judge. I
* Felicius, de societ, cap, 10 et cap. 11, ubi plene de causa instrumentali societatis : et quod expressa probatur verbis, consensu, stipulatione, vel pacto, tacita vero per actus sociales : sive sit generalis, sive particularis societas; et apud eum ex antiquis innumeris : juraque ad satietatem cumulat. Idem, cap. 11, n. 9. "Ubi adest conventio verbis declarati, opus non erit investigare conjecturas, quia id ex verbis, et conventione probabitur, et sic dictum, et sic conventum fuisse; et fuisse contractam societatem poterit probari per instrumentum, vel aliam scripturam super inde confectam." Et n. 11. " Poterit etiam probari per literas alicujus socii alteri socio scriptas, et ratio est, quia literæ alicujus, præsertim sigillatæ, probant, et præcipue contra scribentem. L. Publia, ff. deposit. L. cum de indebito, ff. de probat. Bald. in L. ult. Cod. si cert. petat. Mascard. conc. 626. Et quod scriptura privata probet societatem tradit Paris, Decianus Rubæus." Et n. 12. "Probatur etiam fuisse inductam communionem, et societatem, per testes, Ruin. cons. 92, lib. 1. Etiam si sint singulares deponentes de diversis actibus, cum Gabriel. Corn. Bald, et Alex. debent deponere de actibus socialibus.” Et n. 13, " Probatur societas quando extrajudicialiter socii fassi fuerunt se esse socios." Hebia Bolanos, in Cur. lib. 1. Commercio terrestre, cap. 3, n. 2. Castillo, de usufr. cap. 3, Gratian. tom. 2, discep. cap. 336; et apud hos quam plures.
† Chap. 23, ordinances 63 and 64.
# Super probatione in casibus difficilis probationis. Valenzuel. cons. 18. Vela, dissert. 38, a. n. 20, Solorz. Polit. lib. 3, cap. 26. Julio Clar. §. fin. quæst. 24. n. 19. Gomez, in L. 9. Taur. n.
9. Having thus investigated the mode of making registry of partnership mines, we proceed to investigate the rules under which they must be worked, as indicated in the 43d, 44th, and 45th ordinances of the new code, and the 46th, 47th, 48th, and 49th of the old ordinances. To avoid confusion, from the variety of points which these ordinances embrace, we shall distinguish the rules of law deducible from them into the following:
10. First, that whether a mine belong to a single individual or to a partnership, the number of four persons at least must be kept at work in it; which is provided by the 37th ordinance of the new code, and by the 40th of the old ordinances. And whatever be the extent of the partnership, four persons will be sufficient ; for the ordinances of Peru,* noticing that regard is to be had, not to the number of owners, but to the number of mines they possess, decide, in consequence, that if several persons hold one mine amongst them, they will satisfy the rule of law by setting on the same number of hands which an individual would be required to employ, were he the owner; and that if they hold two or more mines, four persons must be kept at work in each mine.
11. Second, that if one partner require the others to set on more hands, they are compellable to set on twelve persons in all, if there be ore and space enough to admit of it; or a smaller number, if the quantity of ore and disposition of the mine will not admit of more. The 43d ordinance of the new code and the 46th of the old ordinances, agree on this point.
12. Third, that if one of the partners, being required thereto, shall omit to set on his proper number of hands, the judge, after inspecting the disposition of the mine, shall cause to be set on, at the expense of the owners of the m . so many hands as such partner was bound to supply, to make up his proportion of the number of twelve persons, that the works may not be impeded. Such is the direction of the 43d ordinance of the new code. The 46th of the old ordinances provided, that in this case such partner should not w any part of the ore, but this is altered by the ordinances of the new c.:-, which direct the judge to set on twelve persons, at the expense of the owners, in order to put an end to all disputes. If however, the partner be not required to set on more hands, the 46th of the old ordinances, directing that he shall have his share of the ore or silver clear of expenses, will apply, the 43d ordinance of the new code not touching upon this point.
7 et 25. Bobadill. lib. 4, Polit. cap. 5, n. 39. Krebs, de lign, et lapide. set. 11. g. 43. “Similiter in dubio pauper, qui semper quiete vivere velle creditur, arg. L. 3. Cod. de defensor. civit. quando agit contra potentiorem, præsumitur justam causam fovere ;" quamvis hanc præsumptionem per se solam non sufficere, asserit, et g. 44. “In defectum probationum juramento defertadum."
* Ordinance 4, tit. 7, concerning mines insufficiently worked; Escalona, Gazophil. lib. 2, p. 2, c. 1, page 115. “That when several persons shall be possessed of a mine in undivided shares, regard shall be had, not to the number of owners, but to the number of mines they shall be possessed of; so that if they are possessed of a mine of 60 varas in extent, it will be suffi. cient to employ such number of Indians or negroes, as is aforesaid ; and if of greater extent, then more in the same proportion,”
13. Fourth, that if any partner should wish to employ more than twelve persons he may do so, signifying the same to his partners; but if he omit to give them notice, he shall incur the penalty of forfeiting the ore in their favour, without their being liable to contribute any thing to the expenses ; on which point the 44th ordinance of the new code and the 47th of the old ordinances agree. The ore which he may raise by means of the barmen whom he shall employ, over and above the number of twelve ; but what the other men raise is common property, there being no impropriety in raising that, nor is any penalty incurred thereby.
14. Fifth, that if the partners, being required to set on more than twelve persons, shall refuse to do so, they are justified in their refusal, the ordinances being satisfied by the number of twelve being employed. But if the partner who makes the requisition choose to set on more, he is at liberty to do it, but he must allow his partners their share of the ore raised, as if they had all joined in furnishing the hands he has employed above the number of twelve, and the justice shall compel him to do so ; and herein the 44th ordi. nance of the new code and the 47th of the old ordinance agree. But in this case the expenses must first be deducted, for it is only in the case of his not giving notice, that he loses both the expenses and the ore.
15. These five rules may be reduced to this one general rule, that a partCership mine must be kept worked by four persons at least; and, if any one. partner shall require it, by twelve, or a smaller number of persons, according to the extent of the ore and the space for working. That if any partner shall wish to employ more than twelve persons, he may do so, giving notice to his copartners, to whom he must allow their proportion of the produce, deducting expenses ; but if he shall set one more than four persons, or more than twelve, without notice to his partners, he shall forfeit the ore raised by such excess of hands beyond the regular number, and shall likewise lose his expenses. This is a summary of the above mentioned old and new ordinances, as far as they relate to mines yielding ore, the prosperous or profitable state of which may induce one or more of the partners to require more hands to be employed in working them.
16. A municipal law and ordinance of government, for New Spain, stated verbatim by Montemayor," directs that the partners shall employ such num. ber of hands or laborers as is directed by the ordinance, according to the depth of their mines : and that if any one of the partners shall not set on his proper number, he shall not receive a larger share of the ore than is proportioned to the number of hands he shall have furnished. But it declares that if he is unable to furnish the number of labourers required, and the other partners shall furnish them, they shall give him his proportion of the ore, after deducting the costs and expenses, without withholding any part on account of his not having furnished the full number of hands. This regulation is agreeable to what we have stated above, in the third and fifth rules ; and it is very reasonable, that when the property of the mine is vested in several persons, they should all enjoy the profit, after deducting the expenses, and that, while the other partners are at liberty to employ as many hands as they please, and have a right to be repaid their expenses, the omission of one to furnish a proportionate number of hands, should not, under these circumstances, afford a pretext for depriving him of his share. We find then, that due regard is had to equality, which is the rule most accordant with the nature of a contract of partnership.
* Montemayor, Sumario de cedulas de Indias. Ordenanzas de Govierno, ord. 78, fol. 74, 7th September, 1578, at which time the ordinances of the new code were not issued, they having been proclaimed the 22d of August, 1584, and he therefore refors to the regulations of the old ordinances, namely, the 46th ordinance of law 5, tit. 13, book 6, as is stated in the 2d rule in this chapter.
17. What has been thus far stated, holds, as we have already observed, in regard to mines wbich are in produce, or in ore; but the question, as it concerns mines not in produce, is not touched upon in the ordinances of the new code. The lay must therefore be looked for in the 48th of the old ordinances, which directs, that if the other partners or their stewards, upon being required thereto, shall refuse to furnish more hands than the necessary num. ber of four persons, any partner who is desirous to employ more, may do so ; and if he shall find ore which is worth prosecuting (that is to say, a vein or branch, which will admit of being worked, and promises a profit), he shall, on the following day, give notice to his partners to set on more hands, and the latter shall, within two days, elect between the two following alternatives, that is to say, either to pay for the work already done at the rate of four reals (or whatever may be the current rate of wages in the mining districts), or to allow the partner to raise ore enough to cover the expenses of the work already done, the amount of which is to be taken upon his oath, or that of his steward ; so that until he is satisfied, in one of these ways, for the amount of so much of the expenses already incurred, as ought to have been contributed by his partners, they cannot take any part of the ore ; and when he is so satisfied, they must employ twelve persons, agreeable to the third and fourth rule above-mentioned. But if the partner should fail to give notice of his baving discovered ore, the day after his meeting with it, he must allow the other partners a share, from the time of making the discovery; and as a punishment for his fraudulent concealment, he shall not recover from them the expenses of the work already done, either in ore or in money; but from that time forth, twelve persons shall be employed, agreeable to the rule abovestated.
18. Hence it may be inferred, that although one partner may employ