Book 7
2.44
Again, there are questions concerned with numerical quantity which turn on a point of law, such as the questions whether thirty rewards are due to Thrasybulus, i.e. for his overthrow of the thirty tyrants; cp. II. vi. 26. or whether, when two thieves have stolen a sum of money, they are each to be required to refund fourfold or twofold. But in these cases, too, valuation of the act is necessary, and yet the point of law also turns on quality.
2.1
V. He who neither denies nor defends his act nor asserts that it was of a different nature from that alleged, must take his stand on some point of law that tells in his favour, a form of defence which generally turns on the legality of the action brought against him.
2.2
This question is not, however, as some have held, always raised before the commencement of the trial, like the elaborate deliberations of the praetor when there is a doubt as to whether the prosecutor has any legal standing, but frequently comes up during the course of the actual trial. Such discussions fall into two classes, according as the point in dispute arises from an argument advanced by the prosecution or from some prescription cp. III. vi. 72. (or demurrer) put forward by the defence. There have indeed been some writers who have held that there is a special prescriptive basis; but prescription is covered by precisely the same questions that cover all other laws.
