times impossible to bring them to any understanding at all, without dissolving the partnership, or without their separating and giving up the business. 22. In our mines of New Spain, discords arise from the conduct of overseers and administrators, who being, as it were, placed to superintend the management of the concern, whether a mine or smelting work, are always obsequious to, and conduct the works according to the wishes of the party who, holding the largest share, is the most powerful; which is evidently a great injustice, as all the parties contribute to the salaries of these officers, in proportion to their shares; and it is one of the commonest principles, that what concerns all, ought to be done to the approbation of all. In a case of this kind, therefore, if the partners do not agree as to the plan of working, or as to any of the necessary operations for that purpose, the justice ought to determine, under the advice of surveyors, which of the plans proposed by any of the owners is the best, and should keep the administrator to his duty, or, if he be incorrigible, dismiss him from his office; for the appointing an interventor at the expense of the party complaining, which we have sometimes seen done, is a severe measure, and burdens him with an additional expense; unless, indeed, it happen that his suspicions are unfounded, for then he ought to be made to pay for his want of confidence. 23. In deep mines, admitting of a variety of works, we have occasionally met with instances where the partners have agreed to work the mine by regions; so that one should work in one direction, and the other in another; or where they have taken it in turn to work upon the vein at alternate periods of time. Neither of these plans is free from inconvenience; the first being inconvenient from the thefts and disputes of the workmen and labourers; and the second, from the parties being apt to work out the vein, and cut away the pillars of support, in order to make the most of their time; yet they serve to quiet disputes between the owners; and the latter plan, that of working alternately, is a correct and legal one, as may be seen by the text of Ulpian ;† for as the result is uncertain, and the chances of each party are equal, there can be no objection to its justice or legality. 24. Proceeding now to illustrate the mode of dividing the produce, we find it referred to by the 45th ordinance of the new code, which agrees with the 49th of the old ordinances, and from which it appears, that the partners may either divide the ore in specie, or divide the silver when smelted and refined. If the former plan is adopted, the division should be made by weight or measure, the ore being mixed up together and thrown into a round heap, and each party being allotted his share, according to the number of bars he holds in the mine. But if the ore be smelted on the partnership *Felic. de societ. cap. 28, n. 44, 45 et 48, et cap. 27, n. 29. "Opinio ejus sequenda erit, qui magis idoneam refectionem proponat, L. in reficiendo, ff. de damno infecto." † L. 23, ff, comm. divid. Law 5, tit. 13, book 9, Collection of Castile, cap. 49. account, each partner ought to take his share of the silver, upon the same principle. The ore, until divided, should be kept in a safe place, called a galera (a shed), and no one of the partners is to presume to take away any part of it, under pain of forfeiting his share of the ore to the other partner or partners, and as much more as the value of that share, which is to be one half to the exchequer and the other half to the informer. If it be smelted on the partnership account, it must also be refined on the same account, under the penalty decreed against those who shall smelt ore and sell it, or deal in it, unrefined. The penalty or forfeiture of the ore above-mentioned, is merited, not only because the offence is that of stealing what is common property, but also because it is to be presumed that he who commits such a fraud in regard to the ore, would also commit a fraud upon the duties. And although the penal action which according to the rules of law,† will hold against a partner, who by craft and fraud takes what is common property, without the consent of his partners, will not generally hold, if he has done so in the exercise of his right as owner, which is also a rule of the Curia, and founded on one of the laws of the Partida; yet the contrary is the case with regard to the mines and their produce, both because such an act is prohibited by the ordinance, and also because it is desirable to prevent one partner from taking the rich ores, and leaving those of worse quality for the others, and to remove a fruitful source of dispute and altercation. 25. We have already hinted, that although the share of the expenses to be borne, and of the produce to be received by each of the partners in the mine, ought to be proportioned to the number of bars or parts he holds, yet that agreements may be lawfully made to a different effect, as in other kinds of partnership. Whence it follows, that it is lawful for one partner to agree to substitute his labour, in the place of his contribution to the expenses, the other partner contributing the whole of the capital, and the produce being equally divided. And should any question be raised on this point, the proper reply would be, that it is to be presumed that the industry and labour of the one, are equivalent to the money of the other; but if it should be rejoined that they are unequal, and that the money is more than equivalent to the labour, or vice versa, the question, if fairly considered, will appear to be set at rest, by referring to the different nature of the two things contributed, and that it is a more serious thing to hazard life than property, as is laid down by Felicius, upon the authority of Petrus Ubaldis, Nata, Ludovicus, Fachineus, Baldus, Romanus, Menochius, and Socinus. And so, if one * L. 45, ff. de furt. "Si socius communis rei furtum fecerit (potest enim communis rei furtum facere), indubitate dicendum est furti actionem competere." † L. 45 et 51, ff. pro socio; "Merito autem adjectum est si perfallaciam, et dolo malo amovit, quia cum sine dolo malo fecit, furti non tenetur, et sane plerumque credendum est eum qui partis dominus est, jure potius suo uti quam furti consilium inire." Curia Philipp. lib. 1. Commercio ter estre, §. companeros, n. 21. contributes authority, another labour, and a third money; for the voluntary choice of the parties must measure the fairness of the agreement, and it is impossible to lay down any more precise rule. The labour of attending at the mine and smelting works, and looking after the management of the concern is great, is combined with hazard, and is very anxious; and a partner employing his labour in that manner, renders the mine more profitable, and becomes entitled to receive the same compensation which would be allowed an administrator, and thus he brings an equivalent for the capital which another partner may contribute in money. And as is remarked by the laws, the labour contributed by one partner is sometimes so considerable in amount as to be more valuable to the partnership than money; as for instance, when one partner alone undertakes the voyages and journies, and encounters all the perils in his own person.† 26. So also it is lawful to agree that one partner shall bring the mine into the partnership, and another take upon himself the expenses, dividing the produce equally between them; so likewise if one furnishes the mine, and another the labour or industry; in which latter case the property of the mine is not transferred, but remains in that partner who has brought in the mine for the purpose of working it. And the reasonableness of such an agreement is evident from this, that the profit may prove to be very considerable, and that the party who furnishes the capital may possibly make much more gain from the silver produced from the mine, than by any other means; as is the case in a partnership between the owner of the soil and the cultivator.§ 27. After these considerations on the division of the produce, the next point is to inquire how many mines the partners may hold upon one vein, acquired by means of registry or denouncement. The ordinances of the new code pass over this point in silence, and therefore, as they lay down no rule contrary to the 32d of the old ordinances, the force and authority of the latter still remain. It is provided by this ordinance," that if there be a partnership consisting of two persons, they may take two mines upon one * Felicius, de societ. cap. 9, n. 39. Petrus Ubald. in tract de duobus fratr. p. 4, n. 3. Nata, cons. 403, n. 5. Joseph Ludov. in comm. conc, 53, n. 156. Bald. in L. si non fuerint, n. 2, ff pro soc. Menoch. de arbitr, cas. 125. Socin. consil. 265, lib. 2. Idem Felicius, cap. 15, n. 44, cum aliis inuumer. ubi plenissime Covarr. Var. lib. 3, cap. 2, n. 2. Gomez, Var. res. cap. 5, n. 5. † Law 4, title 10, part 5. L. 29, ff. pro soc. "Ita coiri societatem posse, ut nullius partem damni alter scntiat lucrum, vero commune sit, Casius putat: quod ita demum valebit (ut et Sabinius scripsit) si tanti sit opera quanti damnum est: plerumque enim tanta est industria socii ut plus societati conferat, quam pecunia: item si solus naviget, solus peregrinetur. pericula subeat solus." §. 2. Instit. de societ, §. et ita, Inst. de societ. L. Societas, L. cum duobus, §. si incoeunda. ff. pro socio. Sotus. de just. et jur. lib. 6, quæst. 6, art. 1. vers. quin vero. Felicius, de societ. cap. 27, n. 43. cum pluribus. stake, and may also take two other mines upon one stake, upon the same vein, provided they leave three pertenencias between the first two and the other two, as provided by the ordinance next preceding this," that is to say the 31st of the old ordinances; "and if there be more than two partners, they may take such mines in partnership, in the same order, and if they shall have purchased them, they may hold them agreeably to what is stated in the said ordinance," that is to say, all contiguous, although they be several in number. 28. Don Joseph Saenz de Escobar,† in reference to these two ordinances, says, that a space of three mines must intervene between each of the partnership mines, and that each of the partners is bound to leave this interva of three pertenencias, it being a sufficient privilege that the partners should be allowed to hold three or four more mines, leaving these three pertenencias between each. He was quite sensible of the difficulty in the construction of these two ordinances, and with submission to any better interpretation, stated the opinion he had formed, which we respect and venerate as that of a very learned, practical and experienced man, and one of whose great acuteness on this subject we are well aware. Notwithstanding this, the letter and spirit of the old ordinances, now under consideration, compel us to give the following as our opinion. 29. That is to say, that two, three, four or more partners, may hold two, three, four or more contiguous mines; and that then, leaving a space of three pertenencias after the last of them, they may take two, three, four or more other contiguous mines, according to the number of persons forming the partnership. This is no new doctrine, but is according to the strict text of the ordinance, which permits two partners" to take two mines upon one stake, and then two other mines upon one stake upon the same vein; and if there be more than two partners, then to take such mines in the same progressive order." And it is putting a forcible construction upon the ordinance, to say there must be a space of three pertenencias between each of the partnership mines, in opposition to the expression" take two mines upon one stake and then two other mines upon one stake," and also contrary to the title or inscription in the margin of this ordinance in the old Collection, which runs thus: "That two contiguous mines may be taken in partnership, and then two more, leaving the space of three pertenencias, and if there be more than two partners, they may take them in the same order." And it would be impossible to have two mines upon one stake, and then two more upon one stake, or to take two contiguous mines, and then two more contiguous mines, if three pertenencias must be left between each of the partnership mines; for if these three pertenencias were left between, the two mines would not be contiguous, agreeably to the title or inscription above-mentioned, nor would they be upon. A set or parcel of mining ground, of dimensions assigned by law. See chap. 9.-Trans. + Saenz, Tratado de medidas de minas, cap. 2, n. 13 and 17. one stake, as the text of the ordinance has it, but they would be separated from each other by the intermediate space of three pertenencias. 30. When, therefore, the ordinance says, " Provided they leave three pertenencias between the first two mines and the other two, as provided by the ordinance next preceding this;" it must necessarily be understood that three pertenencias are to be left between the two mines which are contiguous and upon one stake, and the other two which are contiguous and upon one stake, precisely in the same manner as it is incumbent on an individual miner, who cannot hold more than two mines, to leave that space between them; and so, if there be three, four, five or more partners, observing the same order progressively; that is to say, they may take three, four, five or more mines upon one stake, and contiguous; and then, leaving the intermediate space, they may take as many more, according to the number of partners. Besides, if it had been the meaning of the 32d ordinance, that such an intermediate space was to be left between each of the mines, it might easily have been so expressed, as in the 31st, which refers to a single miner; instead of which, what the ordinance declares is just the reverse, namely that the intermediate space must be left between the two first and the other two, as if each two mines were to be taken collectively. 31. Neither is the allowing two partners to hold four mines, or three partners six mines, or four, eight mines, and so on progressively, by any means to be considered a privilege, as Don Joseph Saenz would have it; being in fact no more than a fair and ordinary right; and, in effect, each partner has but two mines, a number which any person may hold, leaving three pertenencias between them. Now, if one person may hold two mines, it is plain that each of the partners may hold that number; and therefore, if the partnership consist of two, they may hold four mines; if of three, six mines; if of four, eight mines, and so on, allowing two mines for each partner; and there can be no privilege in this, nor in the mines being permitted to be contiguous, leaving the space of three pertenencias between each two, three, four, &c. For if the ordinance allows the partners, when two in number, to hold two contiguous mines, and two more, also contiguous, leaving the space of three pertenencias between each two, then may three, four, five or more partners hold a proportionate number of mines, observing the same rule of arrangement. And although the ordinance, in reference to the case of there being more than two partners, says, "that they may take such mines in partnership, in the same order," which might appear to indicate that three partners can take but two mines, namely, those before mentioned and previously referred to; yet the expression, "such mines," must be understood in a distributive sense, according to the number of persons concerned, and increasing progressively as that number increases. 32. It should also be borne in mind, that the object of the provision, directing an intermediate space of three pertenencias to be left between the two |