, or in accordance with the proper
law, or under liability to the proper punishment, or in reference to
the proper accusation, or at the proper time, it is then called a
transferable statement of the case. We should require many examples of
this if we were to inquire into every sort of translation, but because
the principle on which the rules proceed is similar, we have no need
of a superfluity of instances. And in our usual practice it happens
from many causes that such translations occur but seldom. For many
actions are prevented by the exceptions allowed by the praetors, and
we have the civil law established in such a way that that man is sure
to lose his cause who does not conduct it as he ought. So that
those actions greatly depend on the state of the law. For there the
exceptions are demanded, and an opportunity is allowed of conducting
the cause in some manner, and every formula of private actions is
arranged. But in actual trials they occur less frequently, and yet, if
they ever do occur at all, they are such that by themselves they have
less strength, but they are confirmed by the assumption of some other
statement in addition to them. As in a certain trial which took place
"When a certain person had been prosecuted for poisoning, and, because
he was also accused of parricide, the trial was ordered to proceed
out of its regular order, when in the accusation some charges were
corroborated by witnesses and arguments, but the parricide was barely
mentioned, it was proper for the advocate for the defence to dwell
much and long on this circumstance, as, nothing whatever was proved
respecting the death of the accused person's parent, and therefore
that it was a scandalous thing to inflict that punishment on him which
is inflicted on parricides, but that that must inevitably be the case
if he were convicted, since that it is added as one of the counts of
the indictment, and since it is on that account that the trial has
been ordered to be taken out of its regular order. Therefore if it is
not right that that punishment should be inflicted on the criminal, it
is also not right that he should be convicted, since that punishment
must inevitably follow a conviction." Here the advocate for the
defence, by bringing the commutation of the punishment into his
speech, according to the transferable class of topics, will invalidate
the whole accusation. But he will also confirm the alteration by a
conjectural statement of the cas