by any act of opposite or distinct tendency; and the continuance is said to be civil or natural, according to the nature of the act. But with regard to time, there is no such thing as accumulation; five and five in philosophical understanding, are not ten, although when added together they amount to this number. He who has been a novice during two distinct periods of six months each, cannot, by adding them together, make them one year, so as to entitle him to profess; one who has been incarcerated for two different periods of six months, cannot claim to be released from prison, upon the allegation that he has been confined one continuous year; one who has given shelter to a banished person for ten days, at different intervals of time, is not to be punished, like one who has given him shelter for ten days continuously and so in various other instances, which may be found in Angelus, Speculator, Cuneus, and Avendaño, as cited by Garcia. If therefore, it be established, that work has been done, although at intervals, the continuity of the term of four months, during which the mine may have been left insufficiently worked, will be deemed to have been destroyed by such interruption, so as to prevent the penalty attaching. And in practice it is well known, that the owners keep up their right to the mine by working from time to time, until they find it convenient or practicable to apply briskly to the prosecution of the draining, or of the dead works; which proceeds on this principle of alternately taking up and intermitting the work.

12. Notwithstanding this, it is worth while to consider, whether this plan of keeping up the working, by opening the mine a day or two before the expiration of the term of four months, and proceeding with some dead work or other, is not a fraud upon the ordinances, and contrary to their object; for the mine, so far from being improved, remains just as neglected, and just as much flooded with water as before; the sole purpose answered being that of providing a cloak to shelter a miner, and to prevent denouncement. And as there can be no doubt that he who proceeds in opposition to the spirit of the law, notwithstanding he may keep close to the letter, is guilty of a breach of the law, and is not to be permitted to elude its penalties, by sheltering

* Garcia, de nobil. gloss. 12, n. 37, et gloss. 31 verb. continuus, a. n. 1, ibi: "Hoc verbum continuus, aliquando dicit continuationem civilem, aliquando naturalem; patet hæc distinctio ex text. in L. continuus, ff. de verb. oblig. ibi: "Ut tamen aliquod momentum naturæ intervenire possit ;" et rursum ibi: "Cæterum si post interrogationem aliud agere cæperit, nil proderit quamvis eadem die spopondisset ;" et n. 2, ibi: "Quia si respiceret so um tempus, tunc tempus in dubio deberet intelligi continuum; pro quo est Angelus, in L. si idem cum eod. ff. dejurisd. omn. jud. ubi quærit utrum in tempore fiat coacervatio, et decidit, quod non : ponit exemplum in eo, qui stetit per diversa semestria in ordine meudicantium, quod non erit professus ; et qui stetit in carcere eodem modo, non dicitur stetisse per annum, si eum complevit per inter valla, ut sic amore Dei debeat relaxari ex forma statuti: allegat Speculator, tit, de stat, monachor. §. 1, vers. 38. Barth. in L. fin. §. quoties, ff. de publican. et Gulielmum de Cuneo ; in L. necnon, , si quis sæpius, ff. ex quib. caus. major. Et n. 5, tradit Aristotle, lib. 3, Metaph. cap9; ubi quod numeri consistunt in individua, sicuti species: ita ut quinque et quinque specifice non sint decem, licet coacervati ad summam decem adscendant."

himself under a sophistical interpretation of words, according to the celebrated law of the code; it would seem that the penalty ought to be incurred by one who works his mine for three days only, or a little more, in the course of the year, at the beginning or end of each of the three periods of four months; at the same time leaving it incumbered by water and otherwise neglected, contrary to the true intent of the ordinances, his only view being to prevent denouncement.

13. As the ordinances, however, have made no further provision than the above, and as from their requiring, to make the penalty attach, that the mine should be left insufficiently worked for the term of four successive months, it follows plainly, that the effect of the penalty may be avoided, by working for a few days at intervals; and nothing remains but to hope that the legis lature may make some other provision; although the precaution is sometimes taken, under circumstances in which very few miners would be desirous of denouncing the mine, even if left completely unworked. It is part of the business of the justice to visit the mines, and by imposing fines and penalties, to enforce their being worked, according to the ordinances; but as no one comes forward to insist upon this being done, irregularities are permitted, through the negligence and undue connivance of the justices, to pass unnoticed.

14. The second point established by the words of the ordinance, in providing that by leaving the mine unworked for four successive months, "the person to whom it may belong, shall, ipso facto, forfeit it," is, that although the person who has left the mine unworked should again set it at work, before it has been denounced by any other person, yet he can claim no title to the mine, and any other person may denounce it, as not having been registered, and as merely held in the possession of the party, contrary to right; in the same manner as, under the ordinance of Peru, when a mine has been sold without having been previously sunk to the depth of ten estados, it is liable to be denounced, even though the purchaser be at work upon it; which, as we have already seen, is also the rule under the law of Castile, if the mines have been sold without being sunk to the depth of three estados.* And a party in actual possession of a mine, not having been registered, is liable, under another ordinance, to have it denounced, and to be charged with the penalty. And as, under the circumstances last-mentioned, the party has the opportunity of registering the mine before any one else, so may a person who has forfeited his mine by leaving it insufficiently worked. But his original right is completely divested, and as it were annihilated, not a vestage of it remaining from that time forth; so much so, that if he do not make registry anew, the old registry will avail him nothing, being lost by his neg

* L. non dubium, 5, Cod. de legib.

† Chap. 16, per tot. et num. fin. refertur ordinat. Peruvica.

Chap. 5, n. 17.

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 pæna 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 illustra. tion. 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.