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‘But let it not be forgotten that this issue (of fact) is the only one in which it may happen that one of the two parties must necessarily be a rogue: for in such cases, ignorance (which exempts from responsibility, see note on c. 15. 3) cannot be pleaded (cannot be assigned as the cause or reason), as it may when the issue is the justice (or injustice) of the act’—and the same of the injury, and alleged degree or amount of the offence—‘and therefore in this issue alone the topic may be dwelt upon, but not in the (three) others’. It is important to observe here a qualification of the apparent meaning, which has not been—at all events distinctly—pointed out by the Commentators. It would not be true to say universally that when the issue is that of fact, whether the act alleged has or has not been committed, that one of the two parties concerned must necessarily be a rogue: as when A accuses B of murder, the question is one of fact, is B guilty or not guilty? B may be perfectly innocent, though the circumstantial evidence is so strong as to justify A in bringing the charge. All that is meant is, that there is a certain class of cases which fall under this status or issue, in which this topic may be safely used. Comp. Eth. Nic. V 10, 1135 b 30, ὥσπερ ἐν τοῖς συναλλάγμασι περὶ τοῦ γενέσθαι ἀμφισβητοῦσιν, ὧν ἀνάγκη τὸν ἕτερον εἶναι μοχθηρόν, ἂν μὴ διὰ λήθην αὐτὸ δρῶσιν. This is the case of a deposit, which A seeks to recover from B, who denies having received it. Here—unless either of them has forgotten the transaction—either A, if he seeks to recover what he knows that he has never confided, or B, if he refuses to restore what he knows has been lent him, must intend to defraud the other (Schrader). This is repeated from Introd. p. 356, note.

MS A^{c} (Bekker) has χρηστέον, which has not been adopted either by Bekker or Spengel. The Schol., quoted by Gaisford Not. Var., manifestly reads χρηστέον.

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