mines, which any person is allowed to take upon one and the same vein, is to restrain excessive covetousness, and to allow of other persons registering mines upon the vein. Now, the copartners themselves are such other persons, and they are not, by reason of their being partners, to be regarded as in a worse situation than any other parties; nor can the taking more mines be treated as the covetous act of one of them alone, when others are joined in partnership with him. Another object of the ordinance is, so to arrange, that the mines shall be worked to a greater advantage, and that the vein shall be explored at intervals; and also that the miner shall be prevented from altering his boundaries at several points, which might be done, if each person could take two contiguous mines. But there can be no doubt that partners may work to much more advantage than individuals, and that they will work upon the vein at intervals; and it will also be their business to keep the boundaries of each mine correct according to law.

33. Finally, as each partner may hold, in his own person, two mines, and as the partners, if they be two, three or four in number, are owners, per modum unius, of four, six or eight mines, they ought not, when combined, to be compelled to do more than is required of an individual miner. If then, a single miner is bound to leave the usual space between his two mines, all the partners together, who are interested per modum unius, need only leave the space of three pertenencias between each four, or each six, or each eight of the mines they are allowed to hold, according to the number of individuals.

34. The question may also be raised whether, supposing five persons have registered, separately, that number of mines, they can afterwards form a partnership together, and enter the contract in the register, the mines being contiguous. This question is answered by referring to the last point; for, if five individuals, separately, may register five mines, contiguous to each other, why may they not do so when partners? Or, why should the five, as partners, be in a worse condition than as independent individuals? Much more, when we consider that partnerships are so much privileged and so much to be encouraged; such combinations having been entered into in working the most celebrated mines of Europe, and affording the best means of promoting the active working of the mines, and, immediately, of benefiting the commonwealth and the crown. Add to which, that if any miner may, by purchasing the three intermediate mines, hold five contiguous mines, without infringing the ordinance, why should not the partners be allowed to hold half their mines contiguous, and then, leaving the usual space between, to hold an equal number also contiguous? Don Joseph Saenz assures us, that it is the practice of the miners to invite some one who appears likely to be an easy neighbour, to take the mine adjacent, that they may get possession of so much of the intermediate space.* With how much more reason then, may

Saenz, loc. ubi proxime, n. 19.

one partner hold a mine contiguous to that of his fellow-partner, leaving the proper space between those two mines, and the two others which they are allowed to take? We shall notice in its proper place, the artifice resorted to by miners who have made discoveries, or others, to get possession of two contiguous mines; for the consideration of which, as well as of the question whether the copartners can hold several mines contiguously, when acquired by inheritance or donation, as they can when acquired by purchase, we refer to the place alluded to.*

35. Having considered the modes in which a mining partnership may be constituted, and the rules as to the number of hands necessary to be kept at work, the division of the produce, and the number of mines the partners may hold, we proceed to consider the mode in which a mining partnership 'may be dissolved or determined. First, then, it is determined by one of the partners renouncing his share, and not choosing to proceed with the works, or to continue his contribution to the expenses; in like manner as other partnerships are determined by renouncement. Second, it is determined by one partner selling his share or interest; for although the law is, that the partnership interest cannot be ceded or transferred, yet this is to be understood of partnerships where the personal services of the party are looked to for the purpose of trading, or in business, the secrets of which it is not proper to reveal, as that would deprive the other of the profits; but it does not hold, where there is a common subject matter, of which each party may cede or sell his share.§ And in practice, in all the mining districts, shares in mines are sold, both judicially and extrajudicially and there was an instance not long ago, at the time when so much noise was made in New Spain, by the bonanza at Bolanos, of the one third share in a mine being sold for 90,000 dollars, the whole of which sum was returned in six months, from the extraordinary richness of the mine. This mine was called la Conquista, and was the first discovered upon the vein; and shares in many other mines were sold at the same time, in that mining district. And the use of the mine being common to several owners, it follows of necessity, that they must be interested as partners, in working it, and in sharing the ore or silver.

36. Third, if the mine be left insufficiently worked, or be forfeited under any of the penalties of the ordinances, then, as the business is at an end, the partnership is determined.||

37. A partnership also determines, in general, by the death of any of the

*Chap. 8, ordinance 31.

† §. 4, Inst. de societ.

L. 19, ff. pro soc. "Cum enim societas consensu contrahitur, socius mihi esse non potest,

quem ego socium esse nolui." Hebia Bolanos, in Cur. lib. 1, comm. terrest. §. 3, n. 39. "It being evident that the partner is chosen on account of his trustworthiness and industry."

§ L. 14, §. 3, ff. comm. divid. Leg. 68, ff. pro soc. L. 66, ff. de reb. cred. L. penult. Cod. de præd. et aliis rebus minor.

§. 6. Instit. de societ. Felicius de Societ. cap. 34, per totum.

partners, their personal services being looked to, as observed above, on admitting them into partnership:* but as the use and property of the mine being common, the heirs must, of necessity, succeed to the possession, as the mine cannot otherwise be worked; and this is the case with regard to partnerships in the collection of the public taxes or other public offices, which Baldus calls (according to Felicius), partnership of necessity:† so that the heir, although he be not a partner, not having been chosen such, yet, as the law observes, necessarily succeeds to the emolument, or responsibility. And it is not to be doubted but that the heir succeeds also to a share in the common subject matter, and that with regard to mines, the impossibility of their being enjoyed otherwise than in common, necessarily involves a tacit continuance of the partnership with the heirs, and has the effect of constituting a partnership amongst all the partners.

38. The partnership or common holding is determined by partition, for no one can be compelled to continue in it. Whereupon will arise the question, whether the mine can be divided into material parts, allotting a number of varas to each partner, in proportion to his interest in the mine; whether, for example, supposing that there are three partners, each may have allotted to him the space of 40 varas, which is the third part of the 120 varas, constituting the whole length of the mine; and so that each may work his own share. And it would seem that there is no difficulty in this. First, because this is the manner in which the estates of miners are divided, if one of those who are jointly interested call for a partition.§ So a tree or rock situated upon the confines of two estates, and whether fixed to the soil or unattached, belongs in respective shares to the two proprietors ;|| and in case of dispute, a partition must be resorted to. Secondly, Escalona, when considering three of the ordinances of Peru, advocates the reasonableness of this plan of making a partition in mines,'upon the authority of Jason, Ayora and others."*

39. By the first of these ordinances it is ordained, "That when there is a partnership between persons interested in undivided shares, and one partner being desirous of a partition, demands to have one made, then, whatever may be the subject matter, the other shall be obliged to accede to the request, and the judge shall compel him to do so; provided that he who makes the

§. 5. Instit. eod. "Cartam personam sibi elegit."

Felicius, de societ. cap. 32, n. 19. "Conclusio supra posita, et ampliata, quod societas non transeat ad hæredes, et morte extinguatur, declaratur non procedere in societate vectigalium, seu aliarum publicarum functionum; et ista appellatur societas necessitatis, a Bald. in L. tam diu, n. 2. Cod pro soc. &c."

‡ L. verum, 63. §. in hæredem, ff. pro socio.

§ L. inter omnes, Cod. de præd. minor.

L. arbor. 19, ff. comm. divid. L. 83, ff. pro socio.

TL. 26, ff. de servit. urban. præd.

** Escalona, Gazoph. lib. 2, p. 2, cap. 1, page 116, tit. 7, concerning mines sufficiently worked, ordinances 5 and 6; and tit. 3, concerning measurements, ordinance 2.

demand shall make the partition of partnership property, and that the other party shall, within six days, make choice of which share he will have and in such partition no more shares shall be made than there are partners; and when the choice is made, each shall hold his share, and the partition shall serve him for a title, and there shall be no further suit on the subject, nor shall any such be entertained or admitted; and if the partnership shall consist of more than two, he who demands to have the partition made, shall make it, and the other two shall make their choice; and if such others shall not agree, the mine shall be divided, and these others shall draw lots for the choice; and he who has demanded to have the partition made, shall take the share which remains; and if either of the other two shall prefer it to that which has fallen to him, he may take it the same day, but not afterwards; and the share which remains shall always be for him who has demanded to have the partition made."

40. By the next ordinance it is provided, "That when there shall be partners, who shall hold a mine in undivided shares, and one of them being absent, he who is present shall work the mine with the number of Indians prescribed by the ordinance, and shall find no ore, the ordinance shall be observed which provides, that after the expiration of two months he shall have it for his own absolutely. In this case, no one can apply to have the mine adjudged to him for being insufficiently worked. If however he shall work the mine with the number of Indians proportioned to the share he may pos sess in it, and no more, he will thereby fulfil his obligation, as far as concerns. his own share, but the share of his partners may be applied for by any person, as insufficiently worked: and if it shall be adjudged to such person, the partner shall be obliged to make his election whether he will have a partition, within ten days; and if they shall agree to divide it, it shall be divided, and the original partner shall choose which share he pleases, and having once chosen, neither of them shall be at liberty to change, and there shall be no deceit, nor shall any complaint of the party so having made his choice, be listened to; and if he shall not make his choice within the term prefixed, they shall both possess the mine, pro indivisio."

41. The third of these ordinances directs: "That when it shall happen. that a mine has to be divided amongst many, by reason of descent or purchase, the measurement shall be made upon the surface of the earth, and shall be reduced to a plane, by means of a level. And that as soon as the partition is made, on whatever account it be, the shares shall be marked out with land marks, in the manner directed, &c."

42. It is evident, from these three ordinances, that a mine may be the subject of partition, and that it may be worked in part, and in part denounced for being insufficiently worked; and also, that the shares into which it is divided upon a purchase or descent, ought to be defined and marked out with land marks, so that each party may work his own share separately ;

and as the law of the Partida says, each is better satisfied with his share when he has it to himself, and he arranges it better and makes more advantage of it.

43. The question, moreover, is put beyond a doubt, by two other ordinances of Peru, one of which sanctions the taking a mine of 15 varas in width, if it be a waste space between other mines ;† and the other fixes the number of hands to be kept at work in a mine of 60 varas, at eight Indians or four Negroes; and in a mine of 30 varas or under, at four Indians or four Negroes; whence it is to be inferred beyond question, that the mine may be divided by varas.

44. And the point is still more clearly established by one of the ordinances of Castile, according to which, any person may apply for the waste spaces remaining between two mines,§ which are often of a smaller number of varas than a regular mine, for these waste spaces may be of 100, 80 or 20 varas, or more or less, according as the number of varas to spare is more or less. And it is well known, that in practice, the waste spaces are taken possession of in this manner, as we have ourselves witnessed in the mining district of Bolaños, where the title of Zapopan mines was given to them; and also in other mining districts.

45. The old ordinances allowed 80 or 100 varas only, for the length of a silver mine. The gold mines, also, are mines, and yet, under the ordinances of the new code, those taken by the discoverer can only be 80 varas, and the ordinary ones only 60 varas in length, and one-half, respectively, in width; and by the old ordinances they were of still smaller dimensions, that is to say, 50 and 40 varas respectively," so that a mine may be really such, although it be not 120 varas in length. And if the law itself sometimes assigns a less extent to mines, so may their dimensions be diminished upon the division of a partnership, agreeably to the law. And finally, the length of 120 varas is fixed as a matter of favour, and the object is, that that number should not be exceeded; but this does not prevent the miner from contenting himself with less, and renouncing the rest.

46. Nor can it be urged, with any effect, that this would occasion confusion, or that as different fixed stakes would be set up in the mines, thus rendered, by division, less than the regular size, it would be easy, by entering these pits, to gain access to the ore belonging to the adjoining mine owner; for the same thing might be said of the waste spaces which are allowed to be taken

• Law 1, tit. 15, part 6.

Ord. 1, tit 2, concerning the spaces allotted for mines. in Escalon, ubi. sup.

Ord. 3, tit. 7, concerning mines insufficiently worked, apud eund.

Chap. 13, ordinance 29.

L. 4, tit. 13, book 6, ord. 22.

Chap. 9, ordinance 70,

** Ordinance 75, law 5, tit. 13, book 6.