4.1.89 to 4.1.92

(60) We have found it stated in certain writers that, in the action of Deposit —and indeed in all others in which, the condemned party is branded with infamy —anyone who demands more than he is entitled to in the statement of his cause of action, will lose his case; for instance, where he who had deposited one article, alleges in his statement that he had deposited two; or where he who was struck on the cheek with the fist, states in an action for injury sustained that he was also struck in some other part of the body. Let us carefully examine whether we should hold this opinion to be correct. It is true that there are two formulas employed in the Action of Deposit, one based upon the law and the other upon fact, as we mentioned above. The one based on the law, in the first place, designates the cause of action in the manner in which this is usually done, and then sets out the claim as being based upon the law in the following terms: "Whatever the defendant should, on this account, give or perform." But in the formula based upon fact, the cause of action is set forth in the beginning without any previous statement, as follows, "If it appears that So-and-So deposited such-and-such property with Soand-So"; we should entertain no doubt that if anyone in a formula based on fact alleges that he has deposited more articles than was actually the case he will lose his suit, because he is considered to have included in his claim more than he was entitled to. . . . [1] (61) Set-offs frequently take place in such a way that each party receives less than he would otherwise be entitled to. For, as in bona fide actions, the judge is considered to have full power to estimate how much should justly and properly be paid to the plaintiff; on the other [1] Original manuscript illegible.