BOOK IV. Chapter 11. Loco plus petitur, veluti cum quis id, quod certo Gai. iv. § 53: Causa plus petitur, velut si quis in intentione tollat electionem debitoris, quam is habet obligationis iure, velut si quis ita stipulatus sit 'sestertium x milia aut hominem Stichum dare spondes?' deinde alterutrum solum ex his petat; nam quamvis petat quod minus est, plus tamen petere videtur, quia potest adversarius interdum facilius id praestare, quod non petitur. . . . Idem iuris est, si quis generaliter hominem stipulatus sit, deinde nominatim aliquem petat, velut Stichum, quamvis vilissimum. Itaque sicut ipsa stipulatio concepta est, ita et intentio formulae concipi debet.* ... Now too much is sued for in four ways: in respect of the thing, time, place, cause. In respect of the thing, as where a man has sued for twenty aurei instead of the ten that were due to him, or when he that has a share in a thing has claimed as his property the whole or too large a part of it. In respect of time, as when a man has sued before the date for performance, or before the fulfilment of a condition. . . . Too much is sued for in respect of place, as where a person who has stipulated for something to be given him at a fixed place sues for it elsewhere without mention of that place at which he stipulated for the transfer; for example, if a person who has stipulated thus: 'Do you undertake to give me the thing at Ephesus?' shall claim unconditionally that the gift ought to be made to him at Rome. . . because by the unconditional claim he takes away the advantage which the promisor would have had if he paid at Ephesus. 2 Too much is sued for in respect of the cause, as when a man in his intentio deprives his debtor of the election which he has by virtue of the obligation, as when a person has stipu lated thus: 'Do you undertake to give 10,000 sesterces or the slave Stichus ?' and afterwards the creditor claims one or BOOK IV. (2) On the other hand, asking too little in the intentio does not prejudice the remainder of the Chapter 11. plaintiff's claim; he was only obliged to postpone the action to the next year's term for the residue of his demand-as though there were a tacit delay contained in it-by reason of the exceptio litis dividuae,' which here belonged to the defendant. Ibid. § 56: -minus autem intendere licet; sed de reliquo intra eiusdem praeturam agere non permittitur: nam qui ita agit per exceptionem excluditur, quae exceptio appellatur litis dividuae.1 Ib. § 122: Item si is qui cum eodem plures lites habebat, de quibusdam egerit, de quibusdam distulerit, ut ad alios iudices agantur, si intra eiusdem praeturam de his quas distulerit, agat, per hanc exceptionem, quae appellatur rei residuae summovetur." If the demonstratio-as the groundwork of the intentio incerti contain more or less than the plaintiff can prove, this exercises no influence upon his claim. Ib. 54 Illud satis apparet in incertis formulis plus peti non posse, cum certa quantitas non pe other only of these; for although he may sue for that which is less in value, yet he is considered to sue for more, because one's opponent can sometimes more easily give that which is not claimed. . . . The rule is the same when a person has stipulated for a slave in general terms and afterwards sues for a particular slave, as Stichus, although of the least value. Therefore the intentio of the formula ought to be drawn up in conformity with the wording of the stipulation. 1 A statement of claim for too little is, however, admissible; but proceedings cannot be had for the rest of the claim during that praetorship. For a person suing is defeated by the socalled exceptio litis dividuae (plea of divided suit). 2 Likewise, if he who had several actions against the same person has proceeded in some but postponed others, in order that they may go before other iudices, and then within the same praetorship proceeds in those which he postponed, he is met by the so-called exceptio rei residuae (plea of claim standing over). BOOK IV. Chapter 11. tatur, sed quidquid adversarium dare facere oportet' intendatur.' Ib. §§ 58-9: Si in demonstratione plus aut minus positum sit, nihil in iudicium deducitur et ideo res in integro manet; et hoc est quod dicitur, falsa demonstratione rem non perimi. § Sed sunt qui putant minus recte comprehendi, ut qui forte Stichum et Erotem emerit, recte videatur ita demonstrare quod ego de te hominem Erotem emi,' et si velit, de Sticho alia formula agat, quia verum est eum qui duos emerit, singulos quoque emisse: idque ita maxime Labeoni visum est. Sed si is qui unum emerit, de duobus egerit, falsum demonstrat. Idem et in aliis actionibus est, veluti commodati et depositi." The damage to the defendant arising from an er a § 197 ad fin. roneous condemnatio—which, however, binds the judge -is removed by in integrum restitutio, though not invariably. Ib. § 57 At si in condemnatione plus petitum sit quam oportet, actoris quidem periculum nullum est, sed reus cum iniquam formulam acceperit, in integrum restituitur, ut minuatur condemnatio; si vero minus positum fuerit quam oportet, hoc solum actor consequitur quod posuit: nam tota It is clear enough that in uncertain formulae one cannot sue for too much, since a definite amount is not sued for, but the claim is made for whatever one's opponent ought to give or do. 2 If too much or too little is set down in the demonstratio, there is nothing submitted to the iudex, and the matter remains intact; and this is what is meant by the saying that a matter is not extinguished by a false demonstratio. Some, however, think that less may be included, so that, for instance, a person who has purchased Stichus and Eros may be considered to have drawn his demonstratio correctly thus: 'Whereas I have bought the slave Eros of you,' and, if he like, he may claim Stichus by another formula; because it is a fact that he who has purchased two slaves is also the purchaser of each of them ; and this was certainly Labeo's opinion. But if the purchaser of one thing should sue for two, his demonstratio is false. This rule holds in other actions also, as those of loan and deposit. quidem res in iudicium deducitur, constringitur BOOK IV. autem condemnationis fine, quam iudex egredi Chapter 11. restituit, . . . 203. TRANSLATIO IUDICII. Although the formula once given is, as the rule of proceedings in iudicio, unchangeable according to its material contents, yet a change in personal relations may be rendered necessary by circumstances. Thus, there is need of the transfer of the formula to another judge, if the one appointed die or become incapable (mutatio iudicis). And further, transfer to another person as party to the proceedings (translatio iudicii in the narrower sense) is requisite, or permissible, in the following cases. Upon the death of a party, since an intentio as well as a condemnatio placed to the name of the deceased would be absurd, and judgment going for or against him would be void; a in which case the formula is re- " D. 5, 1, 74, 2. cast for the heir. (Resumption of the proceedings.) Paulus respondit, eum qui in rebus humanis non fuit sententiae dictae tempore, inefficaciter condemnatum videri.-D. 49, 8, 2 pr.2 : Ulp. Si operarum iudicio actum fuerit cum liberto et patronus decesserit, convenit trans But if too much has been stated in the condemnatio, the plaintiff is at no risk; but when the defendant has received an unfair formula, he is restored to his former position. But if too little has been stated, the plaintiff only obtains what he has stated; for whilst the whole matter is brought before the iudex, it is controlled by the last clause of the condemnatio, beyond which the iudex must not go; nor does the Praetor upon such part of the formula allow in integrum restitutio . . . except in respect of persons under 25 years of age. 2 Paul. answers, that the condemnation is considered void of a party who was not alive at the time judgment was pronounced. a BOOK IV. Chapter 11. a § 113. D. 44, 7, 9. lationem heredi extraneo non (?) esse dandam ; filio autem, et si heres non exstat, et si lis contestata non fuerat, tamen omnimodo competit, nisi exheredatus sit.-D. 38, 1, 29.1 Id. Mortuo filio post litis contestationem, transfertur iudicium in patrem dumtaxat de peculio et quod in rem eius versum est.-D. 5, I, 57.2 Id. Plures heredes rei necesse habebunt unum dare procuratorem, ne defensio per plures scissa incommodo aliquo afficiat actorem; aliud est in heredibus actoris, quibus necessitas non imponitur, ut per unum litigent.-D. 46, 7, 5, 7.3 In certain cases of a change of status, as in the person of the plaintiff by arrogation, of the defendant in noxal actions, by emancipation or manumission," and the like. Id. Sed si pater lite contestata coeperit abesse vel etiam negligere executionem pater vilis, dicendum est causa cognita translationem filio competere; idem et si emancipatus filius esse proponatur.-D. 47, 10, 17, 14.* A translatio ensues also causa cognita'— 1 If an action have been brought against a freedman for services, and the patron is dead, it is agreed that no transfer shall be given to a stranger heir; but that even if he have not become heir, and there was no joinder of issue, it belongs, however, in any case to the son, unless he have been disinherited. 2 Upon the death of a son after joinder of issue, an action is transferred against the father only so far as it concerns peculium, and what was converted into his property. 3 Several heirs of the defendant will have to furnish a single representative, that the defence divided amongst several may place the plaintiff at no disadvantage. It is otherwise in respect of the plaintiff's heirs, upon whom no necessity is laid of suing by a single procurator. But if the father upon joinder of issue began by being absent, or a bad father has neglected to follow up the case, we shall have to say that when the case is heard a transfer attaches to the son. The same holds also if it be alleged that the son has been enfranchised. |