35 If he demands the wrong thing in his statement of claim, the rule is that he runs no risk; for if he discovers his mistake, we allow him to set it right in the same action. For instance, a plaintiff who is entitled to the slave Stichus may claim Eros; or he may allege that he is entitled to a conveyance under a will, when his right is founded in reality upon a stipulation.
36 There are again some actions in which we do not always recover the whole of what is due to us, but in which we sometimes get the whole, sometimes only part. For instance, if the fund to which our claim looks for satisfaction be the peculium of a son in power or a slave, and it is sufficient in amount to meet that claim, the father or master is condemned to pay the whole debt; but if it is not sufficient, the judge condemns him to pay only so far as it will go. Of the mode of ascertaining the amount of a peculium we will speak in its proper place.
37 So too if a woman sues for the recovery of her dowry, the rule is that the husband is to be condemned to restore it only so far as he is able, that is, so far as his means permit. Accordingly, if his means will enable him to restore the dowry in full, he will be condemned to do so; if not, he will be condemned to pay only so much as he is able. The amount of the wife's claim is also usually lessened by the husband's right of retaining some portion for himself, which he may do to the extent of any outlay he has made on dowry property, according to the rule, stated in the larger work of the Digest, that a dowry is diminished by operation of law to the extent of all necessary outlay thereon.
38 Again, if a man goes to law with his parent or patron, or if one partner brings an action of partnership against another, he cannot get judgement for more than his adversary is able to pay. The rule is the same when a man is sued on a mere promise to give a present.
39 Very often too a plaintiff obtains judgement for less than he was owed through the defendant's pleading a setoff: for, as has already been observed, the judge, acting on equitable principles, would in such a case take into account the cross demand in the same transaction of the defendant, and condemn him only in the residue.
40 So too if an insolvent person, who surrenders all his effects to his creditors, acquires fresh property of sufficient amount to justify such a step, his creditors may sue him afresh, and compel him to satisfy the residue of their claims so far as he is able, but not to give up all that he has; for it would be inhuman to condemn a man to pay his debts in full who has already been once deprived of all his means.
TITLE VII. OF CONTRACTS MADE WITH PERSONS IN POWER
As we have already mentioned the action in respect of the peculium of children in power and slaves, we must now explain it more fully, and with it the other actions by which fathers and masters are sued for the debts of their sons or slaves. Whether the contract be made with a slave or with a child in power, the rules to be applied are much the same; and therefore, to make our statements as short as possible, we will speak only of slaves and masters, premising that what we say of them is true also of children and the parents in whose power they are; where the treatment of the latter differs from that of the former, we will point out the divergence.
1 If a slave enters into a contract at the bidding of his master, the praetor allows the latter to be sued for the whole amount: for it is on his credit that the other party relies in making the contract.