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lecting the work. And it cannot be argued, that, re integra, the delay may be purged, for this rule only holds where the law has made no provisions to the contrary; but there is such a provision in our ordinance, the mine being declared to be forfeited, ipso facto, without any occasion for an application to the judge. The point may be aptly illustrated by the doctrine of Acosta (supported by various texts and doctors), in regard to a person taking an emphyteusis, who, if he do not pay the rent, incurs a forfeiture." The penalty of the law, therefore, cannot be avoided by any proceeding whatever, except that of making registry anew.

15. And such a provision, is, in fact, most beneficial and desirable, as the miners, acting under the fear of this most reasonable penalty, will be deterred from leaving their mines unworked, and taking them up again at pleasure, without renewing the registry, and they will thus be stimulated to carry on the works with more effect. If, then, the party making denouncement can establish, that the miner, although working the mine at the time, is nevertheless doing so without having renewed his title, and that he has previously abandoned the working for four months, the mine must, under the express terms of the ordinance, be adjudged to the party having made the denouncement. And however hard this may seem, such is the express law, and it is material to the public interest (which depends much on keeping up the working of the mines, and enforcing the observance of the forms of registry) that it should be so. By neglecting these points, therefore, the owners render themselves worthy of punishment; besides they cannot possibly set up a claim to an interest in the mines, unless they choose to observe the forms and conditions under which the sovereign has been pleased, in his munificence, to make them common. And as the acts required to be done, depend solely upon the proprietors themselves, they cannot, if through carelessness or culpable negligence they omit to perform them, be admitted to plead an excuse, lest abuse, confusion and litigation should be introduced, to the great prejudice of the public.

16. The ordinance excepts the cases of just impediment, that is to say, war, pestilence or famine, to the intent that they prevail within the mining district, or for twenty leagues around and no further, the term of four months shall be suspended from running. Which provision is an addition of the new code, not being contained in the 40th of the old ordinances. The

* Acosta, de privil. credit. reg. 1. ampliat. 11, n. 16, 17 et 18. "Præterea his, quæ supra diximus, circa emphyteutam et similes non solventes pensionem, adjiciendum erit, quod prædicti in commissum cadent quantumvis nulla interpellatio judicialis, aut extrajudicialis interveniat ; nam tempore a jure præfinito decurso, causa dominii directi in concursu potior erit; etenim dies interpellat pro homine; quod procedit etiam si creditores moram purgare velint, et pensionem solvere." Et pluribus citatis prosequitur, ibi: "Quia ubi dies et pœna obligatione adjicitur, mora dilui non potest." L. magnam, Cod. de contrah. et committ. stipul. Pichard, in tract. de mora, ex n. 69; ubi infinitos citat Gomez, in L. 33, Taur. n. 3. Matienzo, in L. 7, tit. 4, lib. 5. Recop. gloss. 3, n. 2.

ground of the exception is clear, namely, that a term or prescription does not run against a person under impediment; the time during which the impediment continues being omitted in the calculation, according to the ordinary rules and principles, which we have noticed elsewhere. And as the penalty is enacted against those only, who negligently omit to work their mines, whilst the omitting to do so in time of pestilence, famine or war, is no proof of negligence, but only an anxiety for the general safety, it follows that, in cases of this kind, as no blame attaches, the penalty does not take effect.

17. It might be asked, whether any other impediments, besides those of pestilence, famine or war, can be admitted to excuse the necessity of working, or to suspend the running of the period of four months? The reply is, that none such can be admitted; for the declaration of the law, that by just impediments are to be understood war, pestilence or famine, is evidently intended to convey a definition and limitation, and not an example or illustration. And, upon well considering the matter, it will be seen, that under no other circumstances can there be a difficulty in finding so small a number of hands as four persons. Schism, tumult or riot, and epidemic sickness, may be reduced to and are included under one or other of the above three cases, as different species of the same genus, and therefore constitute no new description of impediment.

18. Minority in age, absence on public affairs, banishment, and other cases privileged by the civil law,† will not, nor ought to authorise the maintaining a right to a mine without keeping it at work; the formality in the latter case, being required by the law, and being a condition the soveregn has thought proper to annex, in granting the right of property: to maintain which, therefore, on the part of the subject, it is absolutely necessary that this indispensable obligation should be observed. Nor is there a single ordinance giving any privilege of exemption from this rule; but, on the contrary, they all concur in urging the working and improvement of the mines, for the benefit of the crown (in respect of the fifth or tenth in which it is interested), and of the state, which ought to be preferred before that of individuals; notwithstanding that the latter may wish (disregarding the forms of the law, which, upon the very fact of their being left unworked, divests and extinguishes the right of the party who has neglected the working), to maintain their right to the mines, without keeping them at work.

19. It follows therefore, that neither a minor, nor any other privileged person, can demand to be indemnified against the lapse of this period of four months. For re integra, that is to say, if no one have denounced the mine, he may make registry anew, which will give him a new title, under a new grant of the law. It is clear that the law allows this to be done, for it says,

See chap. 16, n. 10.

+ Tit. 25, part, 3; tot. tit. 19, part. 6; tot, tit. Cod. quib. non obstet long. temp. præscrip.

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.† 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

* L. in causæ, ff. de minor. "Nam si communi auxilio munitus sit, non debet ei tribui extraordinarium remedium."

† Chap. 18, ord. 38, "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."

L. 18, ff ex quib. cujus major. "Sciendum est quod in his casibus restitutionis auxilium majoribus damus, in quibus rei duntaxat persequendi gratia quæruntur: non cum et lucri faciendi ex alterius pœna vel damno, auxilium sibi impertiri desiderant," L. quod si minor, §. Scævola, ff. de minor.

§ Larrea, Decis, Granat, decis. 59, a n. 12. "In quo opinionum conflictu, senatus restitutionem esse denegandum decrevit; ne voluntas institutoris primogenii illudatur et contra legis dispositionem nulla minori conceditur restitutio, nec contra implementum conditionis legalis, ut ex Decio, cons. 161, vers. postremo, L. minoribus, Cod. de his quib, ut indig. L. 13, tit. 7, part 6, L. 11, tit. 8, lib. 5, Recop. probavit Mieres, dict. 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, vers. 4. Gomez, Var. resol, cap. 14, et ibi Ayllon, n. 45. Pareja, de edit. instr. tom. 2, tit. 9, resol. 5, ex n. 5. Cancer. 1, p. cap. 13, n. 58. Fachineo, lib. 8, cap. 49. Costa, lib. 2. Select. cap. 4, n. 2, et apud hos innumeri.

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.

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 it 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, when once in the possession of a party 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 age, who might have omitted, from want of reflection, to keep the mine at work, 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 the law, 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

Ordinance 8, tit. 7, concerning mines left insufficiently worked: Escalona, Gazoph. lib. 2, p. 2, cap. 1, pag. 117.

† L. 2, tit. 19, p. 6, L. quod si minor, §. Scævola, ff. de minor. Larrea, decis 59, n. 21 ; ubi refert 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. 5, n. 7. Caldas, in L. si curatorem, verb. læsis, n. 47.

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.

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.

CHAPTER XVIII.

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.

XXXVIII. ALSO, we ordain and command, that for the purpose of having any miné 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

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