ENOI´KIOU DIKE
ENOI´KIOU DIKE (
ἐνοικίου
δίκη). According to Hudtwalcker (
Ueber d. öffentl.
u. Privat-Schiedsrichter, p. 141 f.), this was an action brought
to recover the rents withheld from the owner during the period of his being
kept out of possession. If the property recovered were not a house, but land
(in the more confined sense of the word), the action for the rents and
profits was called
καρποῦ δίκη. If the
defendant, after a judgment in one of these actions, still refused to give
satisfaction, an
οὐσίας δίκη might be
commenced against him, with the result that the defendant obtained a right
to indemnify himself out of the whole property of the defendant, and as the
ultimate remedy an
ἐξούλης δίκη, the
consequence of which to the defendant, if he failed, was that, besides his
liability to the plaintiff, he was condemned to pay to the treasury a sum
equal to the damages or to the value of the property recovered in the first
action (
προστιμᾶν, Dem.
c.
Mid. p. 528.44). Schömann points out that the
δίκαι ἐνοικίου and
καρποῦ could be instituted, not only when an estate had been
adjudged, but also when the title to an estate was tried: see especially
Lys.
fr. 72 S. He also explains how a plaintiff came
to resort to an
οὐσίας δίκη, when he
might take immediate steps to execution by means of entry and ejectment, by
suggesting that the plaintiff was thus given the choice between a milder and
a more stringent remedy, or that at one time real property could not in the
first instance be taken in execution. In Lipsius' opinion these actions
could only be brought to try the title to an estate. Thus the case in [Dem.]
c. Olymp. p. 1179.45, was not an
actio
locati (Hudt-walcker, p. 143, n.), not an action for the rent
of the house, but for the house itself, as the parallel action (
δίκη ἀργυρίου) shows,
ἀργύριον being the principal, not the interest (Thalheim,
Rechtsalterth. p. 84, n. 2).
1 Thalheim (
l.c. p. 114, n.), following
Heffter (
Athen. Gerichts-verf. p. 266, n.), explains the
οὐσίας δίκη to be an action for
ownership, but the only instance which might be quoted for this meaning of
οὐσία (Harpocr. s. v.
διαμαρτυρία) is corrupt, and Photius gives a
different definition of the action (
ὡς δέον
ἀπολαμβάνειν ἐξ ὅλης τῆς οὐσίας ἃ κατεδικάσαντο).
(Meier and Schömann,
Att. Process, ed. Lipsius, p.
967 ff.)
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