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his office for a certain time, for the latter, when the time is expired, is restored to the rank he held before, as a direct consequence of his restitution. And thus a new title and a new registry make a new mine; and the rank and place it is to occupy are to be determined solely by the new title, without the possibility of the old title being recovered, for the law does not restore the mine, but makes a new gift of it.

15. If an emphyteusist which has determined, be subsequently granted again under new terms, it is not the same, but another and distinct emphyteusis, and the same may be said with regard to a feud; for which see Menochius, who cites Baldus, Angelus, Croto and Oldrado.‡

16. With regard to a feud,§ Carleval || lays down, that when it reverts to the king, it is, in form, determined and extinguished, although the subject of the feud still exists in substance; so that if granted to another party, it is no longer the same feud, but a new one; for the identity and individuality of the feud depend more upon the identity of investiture, than of the subject matter of the feud; in like manner as the identity of a natural thing depends more upon the identity of the form than of the substance.

17. The like is also established by a celebrated opinion of Alexander,¶

L. 2, ff. de decurion. "Qui relegatus ad tempus est, si decurio sit, desinit esse decurio. Alia causa est ejus qui ad tempus ab ordine removeter.-§. 1. Restitutus tamen in ordinem, arbitor cundem ordinem tenere quem pridem habuit. Non idem erit in eo qui relegatus ad tempus est; nam hic velut novus in ordinem venit,"

† An agreement respecting real property, granted to another, on condition of his bringing it into cultivation, and paying an annual rent. See Vicat, jur. ut. vocab, at the word Emphyteusis -Trans.

Menoch. de presumpt. lib. 3, præs. 93, n. 36. "Quando emphyteusis post caducitatem fuit denuo concessa, adjecta nova qualitate tunc dicitur emphyteusis nova; ut tradunt Bald. in 1, 1, column 4, ff. de rer. divis. in cap. 1, an agnatus vel filius, et §. imperialem, §. insuper, de prohib. feud, alienat. Angel. in L. jus civile, ff. de just. Crot. in L. re conjuncti, n. 144, vers. secundo tamen, ff. de legat. 3. Ita etiam de feudo respondit Oldrad. in cons. 178, cum dixit feudum censeri novum ob novas qualitates in nova investitura adjectas.”

§ "Sir Henry Spelman, after Cujas, defines a fief" (or feud)" to be a right which the vassal hath in land, or some immoveable thing of his lord's, to use the same and take the profits thereof, hereditarily, rendering unto his lord such feudal duties and services as belong to military tenure; the mere propriety of the soil always remaining in the lord.'" Coke upon Littleton, by Hargrave and Butler, 191. a. note.-Trans.

recto.

|| Carleval, de jud. tit. 3, disp. 23, n. 14. “Sed tempore quo feudum est devolutum ad regiam curiam ob lineam finitam, non potest subjici hypothecæ a quondam utili domino; cum ipso defuncto, res feudalis remaneat libera ab ejus utili dominio, et contractus feudi, feudumque ipsum antiquum, formaliter loquendo (si licet uti metaphysicis verbis, aptissime tamen rem explicantibus), sit extinctum tametsi res ipsa feudalis materialiter mancat eadem sub dominio diEx quo fit, ut si alius ipsa reinvestiretur, non esset idem feudum cum antiquo, sed feudum novum, cap. 1, de succes, fratr. cap. 1, de fratr. de nov. benef. invest. Ad unitatem enim feudi, et individuationem (ut sic dicam) magis attenditur unitas investituræ quam rei feudalis: quemadmodum quoad unitatem rei naturalis, m gis inspicitur unitas formæ, quam materiæ," ¶ Alexander, lib. 5, cons. cons. 34, n. 5. "Dicitur de novo venire ad habitandum ex quo erat ex toto translatus et extinctus primus incolatus. Hoc comprobatur per ea quæ dicimus in feudo novo et antiquo Nam plures erant fratres habentes feudum antiquum, et ascendenti suo pro se et suis descendentibus concesso, et unus ex dictis fratribus feloniam commisit, propter quam ve

upon the question whether a certain immunity granted for the term of 50 years, to those who should come anew to inhabit a certain place, should be enjoyed by one who had formerly been an inhabitant, and, after being six years absent, had returned again? To which he gives an answer in the affirmative, on the ground of his being a new citizen and a new inhabitant, his former character of an inhabitant having been extinguished; referring to the analogous case of a feud, which has escheated to the lord, in consequence of the treason of the feudatory, and which, when granted anew, is regarded as a new feud; and observing that when any thing is become determined, a party who restores it is regarded in the same light as one who grants it anew; which doctrine he supports by various texts, and upon the authority of the Glossary, and of Angelus, Isernia, Bartholus, Baldus, Tiraquelo, Afflictis, Decius and others.

18. But the doctrine which most favours our opinion is that of Solorzano, with reference to grants from the crown for lives, as to which he suggests the important question, whether, if such a grant be determined, in consequence of the crime of rebellion, or by any other cause inducing a forfeiture, and be afterwards made anew, it is to be regarded as the same grant, and in the same condition as before? which is an important point, in reference to determining the question, whether the two or three lives for the term of which these grants are made, are to begin to run from the time of the new grant ? niebat privandus feudo, et debedat reverti ad dominum feudi, an si dominus feloniam illam, seu offensam remisit dicto fratri, feudum illud dicitur novum, vel antiquum? Et concluditur quod si jus antiqui feudi fuit omnino extinctum, ut quia erat vassallus ex tali felonia ipso jure privatus feudo a lege, vel etiam corporalis possessio feudi sit ad dominum reversa, et denuo sit vassallo facta investitura, appellabitur feudum novum: alias appellaretur antiquum." Et n. 7, "Quando funditu aliquid est extinctum idem judicamus de restaurante, vel renovante extinctum prout judicamus de eo qui de novo facit," &c.

Solorz. de jur. Indiar. tom. 2, lib. 2, cap. 27, a. n. 101, ibi: "Nam si duntaxat restituendi animum habuisset, dici non potest plus juris reo concedere voluisse, quam ante privationem habuerat: cum restitutio sit in statum pristinum repositio, et tantum reddat quod abstulit læsio. Cæterum sinon utatur verbo restitutionis, aut cum hoc alia verba involvat quæ novam gratiam factam esse significent, præsertim ubi sumus in casu in quo pœna privationis ipso jure incursa fuerat, ut in crimine læsæ majestatis contingit, vel sententia declaratoria præcesserat, cujus virtute dominus jam possessionem apprehendit; tunc dicendum est tanquam novum concessum censeri, et sic ex eo die vitarum tempus incipere. Ut tenet Gloss. in cap. 1, §, insuper, de prohibit, feudi alienat. per Freder. quam sequuntur Baldus, Isernia, Afflictis, et alii scribentes ibidem. Curtius junior. cons. 18, n. 47. Sigismund, Gofred. icons. 52, n. 3, in feudalib, et commune testatur Duenas, reg. 323. Julius Clar. in § feudum, quæst. 8, n. 6, et juxta hanc distinctionem accipienda sunt, quæ disputat Jason, cons. 136, vol. 4. Ruin. cons. 12, vol. 2. Roland. cons. 60, n. 8, lib. 1. Villalobos, in Com. opin. lit. n. 5. Sforcia, de restit. q. 98, art. 2, n. 20, et seq. Rosenthal, omnino videndus, de cap. 2, conc. 18 et 19; et de emphyteusi loquuns Alvarus Valascus, 2. p. q. 4, per tot, et tetigi sup. 22, n. 7; et novissime D. Valenz. cons, 160, n. 75, et seq' vol. 2. Pro quibus facit text. in L. 2, §. si ab ære alieno ff, de pecul. L. inter stipulantem, 83, §. sacram, vers, et navis, ff. de V. O. ibi, 'Et navis, si hac mente resoluta est, ut in alium usum tabulæ destinarentur, licet mutato consilio reficiatur, tamen et perempta prior navis et hæc alia dicenda est.' L. qui res, 98, §. area, ff. de solut. ibi: Alia enim videtur esse posterior navis

sicut ille alius homo est," " 95

19. The reply to this question involves a distinction. Either the sovereign uses the word restitution, in which case the grant is restored to its former state, or he only uses words denoting a new grant; in which case the grant must be considered to have been made anew, and the lives will commence to run from that day, particularly if the case be one in which the forfeiture have been incurred ipso jure. This doctrine he rests on the authority of the Glossary, and of Isernia, Baldus, Afflictis, Curtius, Gofredo, Dueñas, Julius Clarus, Jason, Ruinus, Rolando, Villalobos, Sforcia, Rosenthal, Alvaro Valasco, and Valenzuela; and also of two remarkable texts, which establish, that if a ship be taken to pieces, and then be reconstructed of the same planks put together, it is to be regarded as a different ship; in the same manner as if a slave who has been made the subject of a bequest, and been afterwards manumitted, should subsequently return into slavery, he is not the same slave, but is, as it were, a new man.

20. In further support of the doctrine, we will cite an instance which occurred in the royal audiency of Guadalaxara. The mine of Loreto was registered at Zacatecas, in the year 1735, and being afterwards abandoned, its original owners denounced it again, in the year 1745. In the mean time, that is to say, in the year 1738, the mine No pensada had been registered. A suit arose in the year 1754, as to the right of measuring the boundaries, which was tried before the justice of Zacatecas originally, and before the audiency of Guadalaxara upon appeal, both of whom gave sentence in favour of the No pensada, and its proprietor, Don Joseph Juaristi, and against the mine Loreto, and its proprietors, Don Juan Tello de Albornoz and his partners, upon the ground of several precedents, and in reliance upon the current practice. From all which authorities, it is to be inferred, according to our view of the subject, that a mine adjudged anew, upon denouncement, is a new mine, and is considered distinct from that which had been originally registered, the former registry being determined. And that with regard to the right of measuring the boundaries, or any other question, reference is to be had solely to the date of the registry of the new grant last made, as the only title by which such matters are to be regulated. From this doctrine we deduce the following corollaries.

21. First, that if a person holding a mine which has been adjudged to him upon denouncement, and another holding a mine acquired by a registry, prior in date to the denouncement, although subsequent to the original registry of the mine denounced, should apply simultaneously to have the boundaries set out, the latter will be entitled to measure out his boundaries first.

22. Second, that when a mine has been left insufficiently worked, or the penalty of forfeiture has been otherwise incurred by the owner, the boundaries of a more recent mine may, notwithstanding that the other mine has been defined and staked out, be extended upon the site of the older mine; and that when the pit of an abandoned mine has been occupied, under a new

denouncement, the proprietors of the adjoining mines may, if required to set out their boundaries, extend them upon the site of the newly-denounced mine. For a mine when abandoned, neither possesses definite boundaries, nor any other qualities formerly belonging to it; and other mines, which, had it not been abandoned, and deprived, in consequence of the forfeiture, of its character of a mine, would have been reckoned as more recent in point of registry, now gain a priority in that respect.

23. Third, that this takes place, not only with regard to ordinary mines, but also to those of the discoverer, or, as they are termed, descubridora mines that is to say, that a party who denounces these mines, after they have been abandoned or become forfeited, does not enjoy the extra number of varas which before formed a part of them, but acquires the same number only, as would be allowed in any other mine. For the additional extent being allowed in consideration of the person, the right to it is lost by the abandonment of the mine. And even though the party registering the mine anew, should be the discoverer himself, it will make no difference; for the original right, as we have seen, is become totally extinct, without leaving a vestige which can be made effectual for any purpose.

24. Fourth, that when mines pass from one possessor to a variety of others in turn, by inheritance, bequest, gift or contract, the first registy is the title by which the right of measuring the boundaries must be governed. For the course of succession being supposed to be continuous, the mine thus transferred, whether by a lucrative or onerous cause or mode of transfer, still depends on the same original title, and consequently remains the same mine, and the universal or particular successor, acquires all the rights which that title can confer. In this case, therefore, the priority of the registry is not regulated by the date of the several parties becoming possessed of or succeeding to the mine, but by the first registry; the title conferred by which, we suppose to have been transferred from one to another, without any discontinuance or interruption, the mine having at no time been abandoned. And, as we have before observed, the name of the new proprietor is to be entered in the same registry," that it may always, thereafter, appear that he had proceeded to work the mine, under the proper title and registry. It appears then, that parties who become possessed of, or succeed to the property in this manner, deduce their title one from the other; but that a person making denouncement, does not depend upon or deduce his title from him who has abandoned, or in some other manner incurred the forfeiture of the mine but derives all his rights from the last adjudication of the mine, under which he claims.

* Chap. 16, ordin. 42, and see above, chap. 5, n. 9.

CHAPTER XII.

OF MEASURING THE BOUNDARIES OF MINES, AND OF THE GREAT IMPORTANCE AND NECESSITY OF A PRECISE OBSERVANCE OF THE ORDINANCES UPON THIS SUBJECT-OF THE SUBJECT TO WHICH THE MEASUREMENT IS APPLIED.-OF THE SURVEYORS EMPLOYED IN MAKING MEASUREMENTS; AND OF THE MISTAKES OCCASIONED BY THEIR UNSKILFULNESS, AND THE MISCHIEF TO WHICH THESE MISTAKES GIVE RISE -OF THE INSTRUMENTS REQUIRED FOR THE PURPOSE, AND OF THE SURVEYING OF MINES, INTERNALLY AND EXTERNALLY.

ORDINANCES XXVI. XXVII.

XXVI. ALSO, we ordain and command, that when and so often as such. boundary stakes shall be required to be set out, or shall be set out as aforesaid, care shall be taken in setting out the stakes, to make an oblong, with right angles; and the said fixed stake shall be within the said oblong, and shall not be left outside it, each one taking the number of varas he ought to take, wherever he may think proper or deem best, in the manner already set forth and declared.

XXVII. Also, forasmuch as it might happen, when fixed stakes have been set out between two or more persons, that some one of them might, with a view to his own advantage, take up from its place one or more of the stakes, as he might think fit, and remove them to some other place which he might think more desirable for him, whence divers suits might arise:-We declare and command, that when any person shall require another to set out boundary stakes, or shall himself without being required set out, or wish to set out, boundary stakes in his mine, he shall be obliged, at the places where he shall set out fixed stakes, on the side of his neighbours, to make a pit for each of such stakes, of two varas in depth, and one in width; and he shall set up a stake in the midst of each of such pits, and shall not be at liberty to remove it except in the cases in which, under these ordinances, the boundaries are allowed to be altered: and the stake or stakes thus set up, shall be regarded as boundaries between the party setting them up, and his neighbours aforesaid; all which they shall do and observe, under the penalty of forfeiting the right they may have to such mine, and that any other person shall be at liberty to apply for it and register it as his own.

CONTENTS OF THE COMMENTARY ON THESE ORDINANCES.

1. The form in which a mine is to be measured out, is, according to the ordinance, that of a right-angled oblong.

2. The miner is at liberty to measure out his boundaries in what manner and direction he pleases, always adhering, however, to his fixed stake.

3. The boundary stakes set out between him and his neighbours cannot be altered.

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