rectly downwards upon it, as, instead of ore, he would be working upon dead ground, contrary to the object of the ordinances.

6. To provide for this case, the 36th ordinance of the new code and the 38th of the old ordinances establish, that if it be expedient to proceed in pursuit of the ore, from its taking its course in some other direction, as is frequently the case, the miner shall not incur the penalties enacted, both because he is in no default in omitting to sink to the required depth, and because the vein, proceeding in an inclined or spreading direction, the law cannot compel him to sink in a manner repugnant to the very nature of the vein, whilst it is convenient and desirable that he should carry on his works in an inclined direction upon the underlay, the object of raising the ore, which is chiefly looked to by the law, being thus attained.

7. But in this case, the miner must have recourse to the justice, that after investigating the correctness of the fact, and ascertaining that the miner is in no default, in not sinking to the full depth, he may make such provision as may be expedient; which means no more than that he may enlarge the term, so far as may be required, for carrying on the workings, in pursuit of the ore so taking its course as aforesaid; until at length, either the obstacle itself cease to exist, or the workings of the mine begin to extend in length and depth at the same time, agreeably to the example we have given in treating of the internal measurements of mines.

8. The 36th ordinance also provides, that the miner shall be exempted from the penalty, if the omission to sink to this depth, arise from any accidental circumstance; but he must give an account to the justice in the same manner, that after examining into the reality of the impediment, he may make such provision as may be proper; and whenever the obstacle is removed, the miner will be obliged to sink to the depth required, according to the usual rule in regard to acts, the performance of which is suspended; for when the impediment ceases to exist, the obligation is revived. The ordinance merely says generally, "From some accidental circumstance, or because it may be more convenient to proceed in pursuit of the ore," without specifying the nature of the accidental circumstances to which it alludes. There are however, several circumstances, which being of occasional, though not frequent occurrence, must be regarded as accidental, and which require some consideration with reference to this question, for the government of the miner, and that he may be enabled to avoid the penalty. 9. The first is, when a vein of rare and extraordinary hardness is met with. Now as the pit is usually narrow, and the ordinance does not require a greater mumber of hands than four persons to be set on, as we shall see in treating of the next ordinance; this must be considered as a reasonable impediment, it being sometimes impossible to overcome such a degree of

"Dilatio potest dari post primam, toties quoties opus est, causa cognita." L. oratione ; et ibi Gloss. 2, ff. de feriis.

11. We recollect to have res ascertained that the mine has been entw na yonga kija

"

.

be demanded and given, as the end de vara se on tagme ten that it would seem that without ending by ba si saa sadyang nak dike kobe put in possession as lawful owner, having food w wynaj imposed by the ordinance, when conferring, vos nges of propsary and diy da ion. But, as in the case of the veins being inclined, or of San Makanan ng sả

rectly downwards upon it, as, instead of ore, he would be working upon dead ground, contrary to the object of the ordinances.

6. To provide for this case, the 36th ordinance of the new code and the 38th of the old ordinances establish, that if it be expedient to proceed in pursuit of the ore, from its taking its course in some other direction, as is frequently the case, the miner shall not incur the penalties enacted, both because he is in no default in omitting to sink to the required depth, and because the vein, proceeding in an inclined or spreading direction, the law cannot compel him to sink in a manner repugnant to the very nature of the vein, whilst it is convenient and desirable that he should carry on his works in an inclined direction upon the underlay, the object of raising the ore, which is chiefly looked to by the law, being thus attained.

7. But in this case, the miner must have recourse to the justice, that after investigating the correctness of the fact, and ascertaining that the miner is in no default, in not sinking to the full depth, he may make such provision as may be expedient; which means no more than that he may enlarge the term, so far as may be required, for carrying on the workings, in pursuit of the ore so taking its course as aforesaid ;* until at length, either the obstacle itself cease to exist, or the workings of the mine begin to extend in length and depth at the same time, agreeably to the example we have given in treating of the internal measurements of mines.

8. The 36th ordinance also provides, that the miner shall be exempted from the penalty, if the omission to sink to this depth, arise from any accidental circumstance; but he must give an account to the justice in the same manner, that after examining into the reality of the impediment, he may make such provision as may be proper; and whenever the obstacle is removed, the miner will be obliged to sink to the depth required, according to the usual rule in regard to acts, the performance of which is suspended; for when the impediment ceases to exist, the obligation is revived. The ordinance merely says generally, "From some accidental circumstance, or because it may be more convenient to proceed in pursuit of the ore," without specifying the nature of the accidental circumstances to which it alludes. There are however, several circumstances, which being of occasional, though not frequent occurrence, must be regarded as accidental, and which require some consideration with reference to this question, for the government of the miner, and that he may be enabled to avoid the penalty.

9. The first is, when a vein of rare and extraordinary hardness is met with. Now as the pit is usually narrow, and the ordinance does not require a greater mumber of hands than four persons to be set on, as we shall see in treating of the next ordinance; this must be considered as a reasonable impediment, it being sometimes impossible to overcome such a degree of

"Dilatio potest dari post primam, toties quoties opus est, causa cognita." L. oratione ; et ibi Gloss. 2, ff. de feriis.

hardness, within ninety days. Secondly, where springs of water break out (whence, as some are of opinion, the name of vein is derived, from the resemblance to those of the human body); in this case, the lower levels. become inundated, and it is impossible to work them, until the accomplishment of the draining by means of engines employed for the purpose; which generally requres preparation, expense, and a longer period than three months and it will often happen, that the draining, though commenced immediately upon denouncing the mine, is carried on for a long time, without its being found possible to sink to the required depth in any of the pits, from their being under water. In the mines of Porco and Verenguela, in Peru, the ground being porous, and the difficulty of carrying on the works in face of the water being very great, they are only allowed to be denounced, for insufficient working, in the months of December, January, Febuary and March, during which alone it is practicable to carry on the works.*

10. The third case is, when there is a falling in of the pit, or of the other works, or pillars of support; during the timbering and repairing of which, the sinking upon the vein cannot proceed. The fourth is, the occurrence of war, mortality or famine, at the place, or within twenty leagues around; for in such case, the ordinances do not even require the number of four persons to be kept at work; and consequently the obligation to proceed in sinking, is no longer in force. And so in several other cases, which no foresight can provide for, and in which, if there be no fault or omission on the part of the miner, he should not incur the penalty; and a person who should, in a case of this kind, denounce the mine, on the ground of its not being sunk to the proper depth, should be resisted, as being actuated by malice, upon the judge ascertaining, as required by the ordinances, that the circumstances were accidental and unavoidable, and that the miner had it not in his power to overcome the impediment. And although suits, upon denouncements of this description, for not sinking to the proper depth, rarely or never occur in the tribunals, it is by no means unnecessary to provide for such cases, their non-occurrence, at present, being attributable, either to the abundance of the mines, or the tolerance of the justices, who ought, in conformity with the so often repeated direction of the ordinances, to urge the works, in order to stimulate to a more brisk course of working in the mining districts.

11. We recollect to have remarked in another place, that upon its being ascertained that the mine has been sunk to the proper depth, possession may be demanded and given, at the end of three months from the registry; so that it would seem that without sinking it, the miner acquires no right to be put in possession as lawful owner, having failed to comply with the condition imposed by the ordinance, when conferring the right of property and dominion. But, as in the case of the veins being inclined, or of the occurrence of

Ord. 10, tit. 7, concerning insufficient working; Escalona, Gazophil, lib. 2, p. 2 cap. 1, pag. 117.

any accidental circumstances, operating as obstacles, the law dispenses with, or suspends the necessity for sinking to the required depth, the miner may, in such cases, demand, and the judge must give, possession of the mine.

12. From all that has been said, we may collect how just and reasonable are the provisions of the 42d ordinance of the new code, and the 45th of the old ordinances, which prohibit the sale of a mine or any dealing in it, until the three estados be sunk, under the penalty of forfeiture of the mine, and of the vendor losing the price which might be given for it, the mine being open to denouncement. And this,-First, from his not having acquired a perfect right of possession and property, by sinking the required depth, which, as mentioned above, is a condition prescribed by the ordinance. Second, because the vendor should not be enriched with what is not his own. Third, because mines are not subject to be dealt in, or reckoned as the property of the subject, until sunk to the proper depth. Fourth, because, as the ordi nance observes, it is the practice to sell some mines and take others, with a view to sale, without ascertaining whether they contain ore or not, which is a manifest fraud upon the purchaser, who incautiously falls into the snare, not seeing that he might denounce other mines of equally good quality, and demand to have them adjudged to him and forgetting that he may be giving either a very high, or a very low price, as it may turn out. And finally, because the ordinances being framed with great strictness (as is evident from the time being now limited to ninety days instead of the more enlarged term of six months, formerly allowed), it would be a fraud upon them to sell the mines within that term, without having observed the conditions which they require.

13. The 42d ordinance proceeds to provide, under the same penalty, that upon selling or dealing with a mine sunk to the proper depth, the purchaser shall give notice to the justice, that the transaction may be registered. And so, if a change in the ownership of the mine occur in any other mode. The object of this rule has been stated when treating of registry; it is, that it may appear with certainty in whom the right of property is vested, and from whom the crown dues are to be recovered: but the question here occurs, whether the purchaser of a mine sunk to the proper depth, is himself required to deepen it three estados further? And whether a person succeeding to the possession of the mine, under other circumstances, is obliged to do the same; in like manner as a person to whom it is adjudged for insufficent working, and who is bound to do it, notwithstanding its having been sunk before? This question arises, particularly with reference to the opening of the 36th ordinance, where it is stated, that forasmuch as it is provided and commanded, by the 35th ordinance preceding, and by other ordinances, that such persons as shall take, hold or purchase mines, or become

* Vide chap. 5, n. 9.