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that he shall have no right to it, "unless by making registry thereof anew, and going through the other proceedings in conformity with these ordinances;" and therefore the minor, community, church or other party, having the ordinary legal remedy of making registry anew, there is no occasion to have recourse to the extraordinary one of restoring the mine.*
20. But re non Integra, that is to say, supposing the mine to have been denounced by, and adjudged to, some other person, in the form prescribed by the 38th and 39th ordinances; the matter cannot be restored to its former plight. First, because the ordinance excludes every remedy, after the matter has been determined in the mode which it prescribes.f Second? because the civil law never gives restitution when the effect would be to benefit one person at the expense of another, or to profit the one by the labour and toil of the other.% Third, because there is no restitution against an infraction of the precept, even of an individual; which must be observed, to give a right to any entail or trust founded by him: the cause must therefore be the same with one who infringes the precept or form of the law. For even in the case of a minor, no restitution is allowed against a breach of the forms or conditions of the law, but the trust will pass, by virtue of the law, to the next in order, and a right being thus acquired under the operation of the law, no restitution can be allowed in opposition to it; as is shewn by Larrea, upon the authority of Decius, Mieres, Caldas Pereyra and many others, and so by Garcia, Covarrubias, Felinus, Pareja and others, referred to by Ayllon.§
21. As the law, then, extinguishes the right to the mine, for the nonobservance of the precept to keep it at work, and the mine is, by the operation of the same law, made over to the party who denounces and works it, having previously made registry according to the ordinance, the restitution of the mine would prejudice this acquired and vested right, whilst the party who has negligently left the mine unworked, would benefit by the labour of the other, and make a profit out of the loss of the rightful owner.
* L. in cansa;, ff. dc minor. "Nam si communi auxilio mmitus sit. non debet ei tribal extra. ordinarium remedium."
t Chnp. is, ord. 33, " And what shall be so determined, shall be observed and enforced, and there shall not be admitted any appeal, supplication, charge of nullity or injustice, or other remedy against the same."
j L. 18, IV ex quib. cujus major. "Sciendum est quod in his casibus restitutionis auxilium majoribus damus, in quibusrei duntaxat pcrsequendi gratia quscrunlur: noncumet lucri faciendi ex allerius poena vel damno, auxilium sibi impertiti desiderant," L. quod si minor, $. Scsevola, ff. de minor.
§ Larrea, Decis, Grannt. decis. 59,an. 12. "In quo opinionum conBictu, senatus restitutionem esse denegnndum decrevit; ne voluntas inslituloris primogenii illudatur : et contra legis disposilionem nulla minori conccditur restitutio, nee contra implementum condilionis legalis, ut ex Decio, cons. 161, vers, postremo, L. minoribus, Cod. do his quib. ut indig. L. 13, tit. 7, part 6, L. 11, tit. 8, lib. 5, lierop. probavit Mieres, diet, illat. 8, n. 164; et ex Gloss, in L. exigendi Cod. de procur. et ex consilio ejusdem Caldas Pereyra, in L. si curatorem habens, n. 79, vera. 4. Gomez, Vur. resol. cap. 14, ctibiAyllon, n. 45. Pareja, de edit, instr. torn. 2, tit. 9, resol- 5, ex n. 5. Cancer. 1, p. cap. 13, n. §8. Fachineo, lib. 8, cap. 49. Costa, lib. 2. Select cap. 4, n. 2, et apud hos innumeri.
22. But it may be said, perhaps, iu some cases, that the blame of the neglect may be attributable to a tutor, steward or administrator. If this be the case, then, the remedy must be by an action against these parties, but not by a restitution of the mine, and an expulsion of the rightful owner, who has acquired a property in it by the operation of the law, and agreeable to the forms of the ordinances. It is with a view to provide for a case of this kind, that the laws of Peru* direct, that upon the death of the proprietor of a mine, his executors shall, if the heirs be in Spain, sell it, like other landed property, within thirty days; having it first proclaimed, and offered to the best bidder, and remitting the money to Spain; but that if the heirs be in Peru, the mine shall not be liable to be denounced, as unworked, within five months; after which, it shall: and that if the executors shall not perform all that is above directed, they shall be liable to make good any loss. By force of this ordinance, therefore, the mine is liable to be denounced for insufficient working, after the expiration of five months; even though the heirs be absent from the place, and be they under what circumstances they may—minors, or of full age, rich or poor; and an executor who gives occasion to the denouncement of the mine, by leaving if insufficiently worked, or who, by his default, occasions any other damage, is liable to make compensation; and therefore a tutor, curator, steward or administrator, of a mine belonging to a minor or other privileged party, is under the same obligation to work the mine; which, in case of his default, will become liable to be denounced, at the end of four months; and when once in the possession of a party who has registered it anew, restitution can no longer be admitted.
23. We say, wlien once in the possession of a parti/ who has registered it anew; for if it have not yet been adjudged to him, and he have not yet expended money or labour upon the mine, it is equivalent to the matter being in the same condition : and we should not hesitate to say, under such circumstances, that a person under a^e, who might have omitted, from want of reflection, to keep the mine at woik, ought to have it restored to him, no injury being thereby done to the person claiming to have the mine adjudged to him for insufficient working; and this being the express doctrine of tho law,t and of various authors. But if all the proceedings have been gone through, and the adjudication be concluded, the expenses in course of disbursement, and all the previous arrangements made, equity will not permit the original owner to take advantage of the labour of the other. So that regard must be had to the particular circumstances of the case, and restitution must be granted or refused, as the judge may, in his discretion, find meet.
• Ordinance 8, tit. 7, concerning mines left inefficiently worked: Escalona, Gazoph. lib. 2, p. 2, cap. 1, pag. 117.
t L. 2, tit. 19, p. 6, L. quod si minor, §. Screvola, ff. do minor. Larrca, decis 59, n. 21 ; ubi refer! verba Mieres, et tradit Acostam, in L. gallus, §. et quid si tantum, ff.de lib. et posth. p. 2, n. 49. Covarr. 1, Var. cap. 6, n. 7. Caldas, in L. si caratorem, verb. Ism'ih. n. 47.
24. Neither is extreme poverty treated as a sufficient impediment, to authorise the omission to work the mine, or to prevent the penalty of forfeiture from attaching; notwithstanding the various privileges allowed to persons in poverty, on account of their wretched condition. For the ordinance expressly declares that this penalty shall be incurred, not only by those who abandon the working of the mines, in order that they may work others, but also by those who have not the means or ability to work them, as appears from the preamble, " and they do not work them, either because it is not in their power, or because they are engaged in working others which they consider better." He therefore, who cannot afford to pay for keeping them at work, must seek some other employment: for in carrying on works of this kind, money is every thing; and a mine will always require a mine.
OF THE JUDICIAL COURSE OF PROCEEDING IN THE FIRST AND SECOND INSTANCE, UPON THE DENOUNCEMENT OF A MINE.—OF THE STRICTNESS REQUIRED TO BE OBSERVED IN BOTH INSTANCES, ANY OTHER APPEAL BEING DENIED; AND OF THE SENTENCE OF ADJUDICATION OF THE MINE.
ORDINANCES XXXVIII. XXXIX.
XXXVIH. Also, we ordain and command, that for the purpose of having" any mine pronounced or declared to have been insufficiently worked, the party who shall come to denounce it, shall appear before the mining justice, and shall make the denouncement, wherein he shall name the mine, describe the hill or place where it is situate, and upon whose boundaries (if any,) it abuts, and set forth its condition, in regard to depth, and whether it contain any ore or not; and it shall be ascertained, within forty days, whether the mine have been left insufficiently worked for such four months, the party being summoned, if possible, in person, or at his house (supposing he have one at a mine in question or in the vicinity, or that it can conveniently be done,) by mentioning it or making it known to his wife, or servants, or nearest neighbour or neighbours, so that it may come to his knowledge ; but if he cannot be summoned in the vicinity, not having any house there, as is aforesaid, then by edicts and proclamation in the manner hereafter to be mentioned. And within forty days, to be computed from the day on which such denouncement shall be made, both parties shall be at liberty to allege and prove such matters as they may think proper; and the cause shall be determined upon what shall be done within the term aforesaid, without any other
termination or adjournment; and if such mine shall be pronounced to have been insufficiently worked, then it shall be adjudged as such to the aforesaid denouncer, and possession thereof shall be immediately given to him, notwithstanding any appeal, or question of invalidity or injustice, that may be interposed or raised against what shall be so pronounced; provided the party aforesaid, to whom such mine shall be adjudged, shall be obliged, within the term of three months, to deepen such one of the trial pits therein as ho shall think proper, and to make it three estados deeper than it was at the time of his making the aforesaid denouncement, and for that purpose it shall be measured in the presence of our mining justice; all which he shall do and perform, under the penalty of forfeiting the mine, and of its being adjudged to any person who shall denounce it, subject to the same obligation and penalty. Provided he keep an account, to be entered in a book, of the ore and silver which may be raised from such mine, and of the expenses which may be laid out in working it, by the day, month and year; and that he give security in one thousand ducats, that if he be worsted upon appeal, and be ordered to render an account, and make satisfaction, he may have the means of doing so, and may do so. And if either party shall consider himself aggrieved, he shall be at liberty to appeal within three days, and justice shall be determined and done, upon what shall be stated, alleged and proved by the two parties, within sixty days, to be computed from the day of denouncing the decree, without any other termination or prorogation; and what shall be so determined shall be observed and executed, and no appeal, supplication, charge of nullity or injustice, or other remedy, shall be allowed.
XXXIX. Also, we ordain and command, that if it should happen that any mine is denounced for insufficient working, which does not appear to have an owner, or having one, he should be absent, and it should not be known where he is, or he should be in some place where notice cannot be given to him according to the last ordinance, the justice aforesaid shall, on some Sunday, when coming from mass at the church of the mines aforesaid, or if there be no church there, then at that of the nearest town, where there shall be at least eight persons present, cause such denouncement to be publicly proclaimed, that it may be known, and that information thereof may be given to the party to whom it may belong, or to some one who may answer for him, in order that he may, if he please, come forward and make his defence. And such proclamation being made, a transcript thereof shall be affixed on the principal door of such church, so as to appear publicly; and such proclamation shall be made on two other subsequent Sundays; so that altogether, there shall be three proclamations, on three Sundays, and the copies thereof shall be affixed as aforesaid, which shall bo held and accounted a sufficient summons, in like manner as if it had been made personally; and if the owner, or some person competent to resist such denouncement, shall appear pending such three proclamations, or within forty days from the first of them being made, then the parties being heard, agreeably to the preceding ordinance, justice shall be done; and if he shall not appear 'within such term of forty days, or before the proclamations 'shall have been made, such denouncer shall give evidence of the mine aforesaid having been left insufficiently worked during such term of four months as aforesaid, which being given, and such forty days having expired, the mine shall be pronounced to have been so insufficiently worked, and shall be adjudged to such denouncer, and possession thereof shall be given to him. Provided that he shall be obliged to sink three estados, agreeably to the aforesaid ordinances, and under the penalty thereof. And if, after such forty days are expired, and within the three days during which an appeal is allowed, the owner, or any party having authority, shall appear, he shall be at liberty to appeal, and justice shall be done, agreeably to the aforesaid ordinances.
CONTENTS OF THE COMMENTARY ON THESE ORDINANCES.
1. In procuring a declaration, that a mine has been insufficiently worked, the judicial
proceedings commence by libel.
2. Of summoning the party denounced, to attend the investigation.
3. The term allowed for the proceedings is forty days; and it cannot be extended.
4. Three days only are allowed for appealing. The appeal can have a devolutive* effect
only, and in the mean time, the successful party must select some trial pit or other pit, and sink it three estados: must keep an account, and give security.
5. The appeal must be terminated within sixty days, and no further appeal is admitted.
6. The like is to be observed in case the defendant, being absent, should appear and ap
peal within the term of three days.
7. 8, 9 and 10. Several peculiarities in these ordinances and in the method they prescribe.
11. Their object is to expedite the proceedings as much as possible, in order to promote
the more active working of the mines.
12. The rule of terminating the proceedings within sixty days, is not regarded in practice.
13. Whether the security for one thousand ducate, which is to be given by the denouncer when victorious, is also to be given when the other party gains the cause! A nswered in the affirmative.
14. The denouncer, when successful, must sink to the depth of three estados, the mine being now a new one, and the rights of the party denounced being extinguished.
15. Of the account to be kept by the miner.
16. Of the course of proceedings followed in Peru, in obtaining a declaration that a mine has been insufficiently worked
* " The suspensive effect is the cognizance which the superior court takes of the sentence or decree of the judge a quo, or inferior court, suspending the execution of it. The devolutive is the cognizance which the superior court takes of the decree or sentence of the inferior, without suspending the execution of it." Institutes of the civil law of Spain, &c. translated by I,. F. C. Johnstone, p. 342, note 12 .—Tram.