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succurri solitum erat. Sane si tam usual to aid the plaintiff if it appeared magna causa justi erroris intervenie- that he had made an error owing to his bat, ut etiam constantissimus quis- youth. If, however, the reasons which qué labi posset, etiam majori viginti betrayed him into the mistake were quinque annis succurrebatur : veluti such as might have misled the most si quis totum legatum petierit, post careful man, relief was given even to deinde prolati fuerint codicilli, qui- persons of full age. For example, if a bus aut pars legati adempta sit aut legatee had demanded his whole legacy, quibusdam aliis legata data sint, quæ and codicils were afterwards produced efficiebant, ut plus petisse videretur by which a part of it was taken away, petitor quam dodrantem, ad qnem or new legacies given to other persons, ideo lege Falcidia legata minueban- so that the plaintiff appeared to have tur. Plus autem quattuor modis demanded more than the three-fourths petitur : re, tempore, loco, causa. to which the legacies were reduced by Re: veluti si quis pro decem aureis, the lex Falcidia. A man may demand qui ei debebantur, viginti petierit,aut more than what is due to him in four si is, cujus ex parte res est, totam ways-in respect to the thing, to the eam vel majore ex parte suam esse time, to the place, and to the circumintenderit. Tempore : veluti si quis stances. In respect to the thing, as ante diem vel ante condicionem pe- when the plaintiff, instead of ten aurei, tierit. Qua ratione enim qui tardius which are due to him, demands twenty: solvit, quam solvere deberet, minus or if, although owner of but part of solvere intellegitur, eadem ratione, some particular thing, he claims the qui præmature petit, plus petere whole, or a greater share than he is videtur. Loco plus petitur, veluti entitled to. In respect to time, cum quis id, quod certo loco sibi 'as when the plaintiff makes his stipulatus est, alio loco petit sine demand before the day of payment, commemoratione illius loci, in quo or before the time of the performsibi dari stipulatus fuerit : verbi ance of a condition ; for just as he gratia si is, qui ita stipulatus fuerit who does not pay so soon as he ought

Ephesi dare spondes?' Romæ pure is held to pay less than he ought, intendat dari sibi oportere. Ideo 80 whoever makes his demand preautem plus petere intellegitur, quia maturely, demands more than his due. utilitatem, quam habuit promissor, In respect to place, as when any si Ephesi solveret, adimit ei pura person sues in another place for someintentione : propter quam causam thing stipulated to be delivered at a alio loco petenti arbitraria actio pro- particular place, without mentioning ponitur, in qua scilicet ratio habetur the place fixed by the stipulation ; for utilitatis, quæ promissori competi- example, if, having stipulated in these turafuisset, si illo loco solveret. Quæ words, 'Do you promise to give at utilitas plerumque in mercibus Ephesus ?' any one should afterwards maxima invenitur, veluti vino, oleo, bring an action at Rome, merely statfrumento, quæ per singulas regiones ing that the defendant ought to give. diversa habent pretia : sed et pe- In this case the plaintiff would demand cuniæ numeratæ non in omnibus more than his due, as he would, by his regionibus sub iisdem usuris fene- intentio thus conceived simply, deprive rantur. Si quis tamen Ephesi petat, the promissor of the advantage he id est eo loco petat, quo, ut sibi de might have in paying at Ephesus. And tur, stipulatus est, pura actione it is thus that a plaintiff, suing in a recte agit : idque etiam prætor place different from that agreed on, has monstrat, scilicet quia utilitas sol- provided for him an arbitrary action vendi salva est promissori. Huic in which allowance is made for the adautem, qui loco plus petere intelle- vantage which the debtor might have gitur, proximus est is, qui causa reaped from paying his debt in the plus petit : ut ecce si quis ita place agreed on. This advantage is à te stipulatus sit hominem Sti- generally found to be most considerchum aut decem aureos dare spon- able in different kinds of merchandise, des ?' deinde alterutrum petat, vel- as in wine, oil, corn, of which the price uti hominem tantum aut decem differs in different places. Money itaureos tantum. Ideo autem plus self, again, is not lent everywhere at petere intellegitur, quia in eo genere the same interest. But if a man brings

stipulationis promissoris est electio, his action at Ephesus, that is, at the place utrum pecuniam an hominem solvere fixed by the stipulation, he may validly malit : qui igitur pecuniam tantum bring an action without mention of the vel hominem tantum sibi dari opor- place agreed on for payment; and this tere intendit, eripit electionem ad- the prætor, too, points out, because all versario et eo modo suam quidem the advantage the debtor will have in meliorem condicionem facit, adver- paying at the particular place is secured sarii vero sui deteriorem. Qua de to him. In respect to the circumcausa talis in ea re prodita est actio, stances, he who demands more than ut quis intendat, hominem Stichum due in this way approaches very nearly aut aureos decem sibi dari oportere, to him who demands more than due in id est ut eodem modo peteret, quo respect of place; as, for instance, if stipulatus est. Præterea si quis any one stipulates thus with you, ‘Do generaliter hominem stipulatus sit you promise to give either your slave et specialiter Stichum petat, aut Stichus or ten aurei ?' and then degeneraliter vinum stipulatus, specia- mands either the slave only, or the liter Campanum petat, aut generali- money only. He would in this case ter purpuram stipulatus sit, deinde be held to have demanded more than specialiter Tyriam petat : plus pe- his due, because in such a stipulation tere intellegitur, quia electionem the promissor has the right to choose adversario tollit, cui stipulationis whether he will give the slave or the jure liberum fuit aliud solvere, quam money. He, therefore, who claims quod peteretur. Quin etiam licet either the money only, or the slave vilissimum sit, quod quis petat, ni- only, takes away his adversary's power hilo minus plus petere intellegitur, of choice, and thus makes his own conquia sæpe accidit, ut promissori dition better, and that of his adverfacilius sit illud solvere, quod ma- sary worse ; and accordingly an action joris pretii est. Sed hæc quidem has been provided by which in such antea in usu fuerant. Postea autem a case the plaintiff maintains that either lex Zenoniana et nostra rem coar- the slave Stichus ought to be given tavit, et si quidem tempore plus him, or the money, and thus makes a fuerit petitum, quid statui oportet, demand in conformity with the stipuZenonis divæ memoriæ loquitur lation. So, too, if a man stipulates constitutio : sin autem quantitate generally that a slave, or wine, or vel alio modo plus fuerit petitum, purple be given him, and afterwards omne, si quid forte damnum ut in sues for the slave Stichus, the wine of sportulis ex hac causa acciderit ei, Campania, the purple of Tyre, he is held contra quem plus petitum fuerit, to demand more than his due, for he commissa triplicondemnatione, sicut thus takes the power of election from supra diximus, puniatur.

his adversary, to whom it was open by the terms of the stipulation to pay something different from what is demanded. Nay, even if the thing actually sued for is of little or no value, yet the plaintiff is held to claim more than his due, because it is often easier for the debtor to pay a thing of greater value. Such was the law formerly in use. But considerable limitations have been imposed on its operation by the constitution of the Emperor Zeno, and by our own. If more than is due is demanded in respect of time, the constitution of Zeno of glorious memory decides what must be done ; if in respect of quantity, or in any other way, then the plaintiff is to be punished by having to pay a sum triple the amount of any loss sustained by the GG 2

d.

defendant, as he has with regard to

court fees, as we have said above. Gai. iv. 53 ; D. iv. 4. 1. 1; D. iv. 4. 7. 4; D. iv. 6. 1. 1; D. xii. 4 and

foll. ; C. ii. 10. 1, 2. Under the system of formula, a plus-petitio or pluris-petitio had the effect of making the plaintiff fail entirely in an actio stricti juris, when the error was in the intentio, and the intentio was for a thing certain. Supposing this were the case, as the formula would run si paret decem nummos, &c., condemna, si non absolve, then, if the defendant owed only nine nummi, he did not owe ten, and so the judex could not condemn him. The plaintiff failed, and having once come in judicio, the litis contestatio operated as a novation of the cause of action (see Bk. iii. Tit. 29), and, his original claim being thus cut away, he was left entirely without remedy, and could take no further proceedings to enforce his demand.

Of course, if the demand was for a thing uncertain, there could be no plus-petitio. If there was an error in the demonstratio, the plaintiff was not at all prejudiced. If there was a mistake in the condemnatio, making it more unfavourable to the de fendant than it ought to have been, it was the defendant who would be prejudiced; but the prætor would grant a new formula, and so rectify the mistake. (See Gal. iv. 53–60, reading in 57, sed (reus cum) iniquam formulam acceperit.)

Under the system of the judicia extraordinaria a plus-petitio would mean any claim in excess contained in the libellus conventionis. The text informs us of the mode in which such a mistake or misstatement was punished when the plus-petitio was not one tempore. If the plus-petitio was tempore, i.e. if the plaintiff sued before the proper time, he was condemned by the constitution of Zeno (C. iii. 10. 1) to wait double the time he ought originally to have waited, and to reimburse the defendant all expenses he might have been put to by the action improperly brought.

Sicut supra diximus refers to the case of the damnum being the exaction of a larger fee by the officers of the court, as mentioned in paragr. 24.

34. Si minus in intentione com- 34. If a plaintiff includes less in his plexus fuerit actor, quam ad euin intentio than he has a claim to, depertineret, veluti si, cum ei decem manding, for instance, only five aurei deberentur, quinque sibi dari opor- when ten are due, or the half of an tere intenderit, aut cum totus fundus estate when the whole belongs to him, ejus esset, partem dimidiam suam he runs no risk, for the judge may, by esse petierit, sine periculo agit : in the constitution of Zeno of glorious reliquum enim nihilo minus judex memory, condemn in the same action adversarium in eodem judicio con- the defendant to pay the remainder of demnat ex constitutione divæ me. what is due to the plaintiff. moriæ Zenonis.

Gai. iv. 56 ; C. iii. 10. 1. 3. Under the prætorian system, a plaintiff who claimed a less amount than was really due to him, could bring another action

for the surplus if he waited until another prætor came into office. (Gal. iv. 56.) Zeno allowed the judex to add the surplus in condemning the defendant.

35. Si quis aliud pro alio inten 35. When a plaintiff demands one derit, nihil eum periclitari placet, thing instead of another, he incurs no sed in eodem judicio cognita veri- risk. For if he discovers the truth, tate errorem suum corrigere ei per- he is allowed to correct his mistake in mittimus, veluti si is, qui hominem the same action ; as if he should deStichum petere deberet, Erotem pe- mand the slave Eros instead of Stichus, tierit, aut si quis ex testamento sibi or should claim as due by virtue of a dari oportere intenderit, quod ex testament what is really due upon a stipulatu debetur.

stipulation.

Gai. iii. 55. In the time of Gaius, a plaintiff who demanded one thing instead of another, lost the action, but could recover the thing really due in a subsequent action. Justinian permitted the mistake to be retrieved in the same action, as the text informs us.

36. Sunt præterea quædam ac- 36. There are, again, certain actions tiones, quibus non solidum, quod by which we do not always sue for the debetur nobis, persequimur, sed whole of what is due to us, but somemodo solidum consequimur, modo times for the whole, sometimes for less. minus. Ut ecce si in peculium filii For example, when a suit is brought servive agamus : nam si non minus so as to form a claim against the pecuin peculio sit, quam persequimur, in lium of a son or a slave, then if the solidum pater dominusve condem- peculium is sufficient to answer the natur : si vero minus inveniatur, demand, the father or master is coneatenus condemnat judex, quatenus demned to pay the whole debt; but if in peculio sit. Quemadmodum au- the peculium is not sufficient, he is tem peculium intellegi debeat, suo condemned to pay only to the extent ordine proponemus.

of the peculium. We will hereafter explain, in its proper place, how the

peculium is to be estimated. C. iv. 26. 12.

We here enter on another division of actions, according to which actions, by which the whole of what was due was obtained, are distinguished from those by which sometimes the whole, sometimes less than the whole, of what was due was obtained.

37. Item si de dote judicio mu- 37. Thus, too, if a wife brings an lier agat, placet, eatenus maritum action for the restitution of her dos, condemnari debere, quatenus facere the husband must be condemned to possit, id est quatenus facultates pay only as far as he is able, i.e. as ejus patiuntur. Itaque si dotis quan- far as his means permit. Therefore, titati concurrant facultates ejus, in if his means admit of his paying the solidum damnatur: si minus, in tan- whole amount of the dos, he is contum, quantum facere potest. Propter demned to pay the whole ; if not, he retentionem quoque dotis repetitio must pay as much as it is in his power minuitur : nam ob impensas in res to pay. The claim of a wife for the dotales factas marito retentio con- restitution of her dos may also be cessa est, quia ipso jure necessariis lessened by the husband having a right sumptibus dos minuitur, sicut ex to retain something, for the husband is latioribus digestorum libris cogno- permitted to retain a sum equivalent to scere licet.

the expenses he has incurred about the things given, since the marriage portion

is by law diminished by the amount of all necessary expenses, as may be seen

in fuller detail in the Digest. D. xxiv. 3. 12. 14; D. xxv. 1. 5. The privilege of having the condemnatio reduced, duntaxat in id quatenus facere potest, i.e. of being condemned only in an amount which he could pay without being reduced to a state of destitution (D. L. 17. 173), a privilege called by the commentators the beneficium competentiæ, was accorded to the defendant in several other cases besides those mentioned in the text and in the next paragraph and in paragr. 40. We may instance the case of one brother sued by another, and every case arising between man and wife, except claims grounded on delicts. (D. lii. 1. 20.) This privilege was always personal, and did not avail either heirs or sureties.

If the debtor subsequently had funds, he had to pay what under the beneficium competentiæ he left unpaid. (C. v. 18. 8.) In calculating how much the debtor could pay, account was only taken of what he possessed, without deduction for what he owed, except in the one case of the donor, who might deduct his debts. (D. xlii. 1. 19. pr. 1.)

Propter retentionem dotis. The husband might deduct the amount of all necessary expenses incurred in the management of the property constituting the marriage portion. If the expenses had been only profitably and not necessarily incurred, that is, were utiles, and not necessaria, Justinian only allowed the husband to bring an actio mandati, or an actio negotiorum gestorum, to reimburse himself; whereas, previously, he had been able to deduct such expenses as well as those that were necessaria. (D. L. 16. 79. 1; C. v. 13. 1.)

owed, except i 12. 19. plotis. The

38. Sed et si quis cum parente suo 38. If any person sues his ascendant patronove agat, item si socius cum or patron, or one partner sues another socio judicio societatis agat, non plus in an action of partnership, he cannot actor consequitur, quam adversarius obtain a greater sum than his adverejus facere potest. Idem est, si sary is able to pay. It is the same quis ex donatione sua conveniatur. when a donor is sued for his gift.

D. xlii. 1. 16. 19. pr. and 1.

39. Compensationes quoque op- 39. Sets-off too, opposed by one positæ plerumque efficiunt, ut minus party to the claims of the other, often quisque consequatur, quam ei debe- bring about the result that the plaintiff atur: namque ex bono et æquo, recovers less than is due to him ; for habita ratione ejus, quod invicem the judge, proceeding on equitable prinactorem ex eadem causa præstare ciples, may take account of whatever oporteret, in reliquum eum, cum quo the plaintiff ought to make good in actum est, condemnare licet, sicut reference to the same set of circumjam dictum est.

stances, and may condemn the defendant to pay the balance only, as has

already been observed. Gal. iv. 61.

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