4.1.85 to 4.1.88

(56) To claim more than one is entitled to, as we have stated above, involves risk; but anyone is permitted to claim less. He is not permitted, however, to bring suit to recover the remainder in the jurisdiction of the same Prætor, for anyone who does so, is barred by the exception styled the exception against division of actions. (57) If more is claimed in the condemnation than is proper, the plaintiff runs no risk; but as the defendant has made use of a formula which was unjust, he may obtain complete restitution, in order that the amount of the judgment may be reduced. If, however, less be set out in the condemnation than the plaintiff has a right to, he only obtains the amount which he sued for, as the entire claim was brought into court, and he will be limited by the amount stated in the condemnation which the judge cannot exceed. In a case of this kind the Prætor does not grant complete restitution, for he more readily comes to the relief of defendants than plaintiffs. We, however, except minors under the age of twenty-five years, for the Prætor always comes to the relief of such persons, where loss of property has been sustained by them. (58) Where more or less than is due is set forth in the Demonstratio ,no case is brought into court, and hence the matter remains unaltered; and this is what is meant when it is said that a right is not extinguished by a false statement of the cause of action. (59) Still, there are some authorities, who hold that less than is due may be properly included in the Demonstratio ; so that a party who has purchased both Stichus and Eros, is considered to have properly stated his cause of action as follows: "Whereas I purchased the slave Eros from you"; and, if he desires to do so, he may bring an action for the recovery of Stichus by means of another formula; because it is true that anyone who purchased both slaves also purchased each of them; and this was especially the opinion of Labeo. If, however, he who purchased one of them, should bring an action to recover both, he makes a full statement of his cause of action. The same rule is applicable to other actions, for instance, to those of Loan for Use, and Deposit.