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EXOU´LES DIKE´ (ἐξούλης δίκη). Ἐξούλη is from ἐξίλλειν, which Harpocration (s. v.) explains ἐξωθεῖν καὶ ἐκβάλλειν: cf. Dem. c. Pantaen. p. 976.35; Lys. c. Theomn. 1.17 (ἀπίλλειν). Meier (Att. Process, ed. Lipsius, p. 665 f.) distinguishes two kinds of δίκη ἐξούλης, one ( ἐπάγουσιν οἱ φάσκοντες ἐξείργεσθαι τ̂ν ἰδίων κατὰ τῶν ἐξειργόντων, Harpocr. s. v.) answering roughly to the interdictum unde vi of Roman law; the other (μόνων τῶν ἐκ καταδίκης ὀφειλόντων, Caecilius in Harpocr. s. v.), later in point of time, corresponding to the Roman actio judicati. A δίκη ἐξούλης of the former class was laid before the τετταράκοντα, and was τιμητός; one of the latter before the magistrate who had heard the case from which it arose (except probably when a διαιτητὴς had given an award, Dem. c. Mid. p. 540.81: cf. Hudtwalcker, Diaet. p. 152), and was τιμητὸς or ἀτίμητος according to the nature of the judicatum. G. A. Leist (d. Att. Eigentumsstreit, p. 45 f.), on the other hand, defines the δίκη ἐξούλης as an action for ejectment resorted to by the plaintiff, when his title to some property was so much better than the defendant's as to be indisputable (ἀναμφισβήτητος). Thus a son or other male descendant (also a son adopted during the testator's lifetime, Dem. c. Leoch. p. 1086.19) might enter [EMBATEIA], and become possessed of the estate immediately after the owner's death (τοῖς μὲν γάρ, ὅτι γόνῳ γεγόνασιν, οὐδεὶς ἂν δήπου ἀμφισβητήσειε περὶ τῶν πατρῴων, Isae. Pyrrh. § 61); such an heir made a formal entry upon the land, and thereby became seised or possessed of it; then the adverse claimant came and turned him off (πορευομένων ἡμῶν εἰς τὰ κτήματα, ἐξῆγεν Λ. οὑτοσὶ φάσκων αὑτοῦ εἶναι, Dem. c. Leoch. p. 1090.32). This proceeding took place quietly (yet see Dem. c. Onet. i. p. 864.4) and in the presence of witnesses (Isae. Pyrrh. § 22); then the heir might bring against him an action for ejectment. Such an action could also be maintained by a creditor who was prevented from taking possession of some mortgaged property, the ὅροι set up on mortgaged property establishing clearly the rights of the mortgagee (Harpocr. s.v. cf. Dittenberger, S. I. G. No. 344, 1. 75), or according to Pollux (8.59) by a person who had bought property from the state against anyone who disturbed him in the enjoyment of it (cf. Dem. c. Pantaen. p. 972.19; Dittenberger, ibid. No. 76 = C. I. G. No. 2691 d, καὶ ἐπώλησαν τὰ κτήματα αὐτῶν δημοσίηι, ἐκτῆσθαι κυρίως τοῖς πριαμένοις for no action would lie against the purchaser of property sold by the treasury: the fact of the state having ordered the sale would constitute a “parliamentary title, so to speak” (Wayte on Dem. c. Timocr. p. 717.54). The title to property might also have been established by the decision of a court or the award of an arbitrator (Etym. M. οἱ δίκην νικήσαντες ὥστε λαβεῖν χωρίον οἰκίαν, ἔπειτα ἐμβατεύειν κωλυόμενοι, etc.). To these cases Leist adds some others in which the plaintiff's right is not so [p. 1.816]clearly established; e. g. the cause of Demosthenes against Onetor. Demosthenes having recovered a judgment against Aphobus, proceeded to take his lands in execution. Onetor claimed them as mortgagee, and turned him off; where-upon Demosthenes, contending that the mortgage was collusive and fraudulent, brought an ἐξούλης δίκη. In the instance mentioned in Isae. Dicaeog. § 22, Dicaeogenes had covenanted to give the plaintiffs two-thirds of the estate (ἀναμφισβήτητα, § 18 = καθαρὰ καὶ ἀνέπαφα, argum.), but he sold these two-thirds to other persons; the plaintiffs incurred the costs (to the amount of 40 minas) of an unsuccessful attempt to eject Micion, one of the purchasers, Dicaeogenes guaranteeing his ownership. The case in Demosth. c. Zenoth. p. 882 f. is most complicated. Demon had entrusted a sum of money to Protus, who engaged to purchase corn in Sicily and bring it to Athens. Upon the ship's arrival Zenothemis claimed the cargo, saying that it had been purchased by the captain Hegestratus (drowned at sea), and that he had lent money to Hegestratus upon it. Protus and his partner Phertatus tried to remove him (ἐξάγειν), but he declared that he would not be put out of possession by anyone but Demon (yet from § 21 it would seem that Zenothemis brought an action against Protus and won it); and when Demon removed him at last, he subjected himself to the ἐξούλης δίκη which Zenothemis brought. (Cf. on this case A. Philippi, Jahrb. f. class. Phil. 1867, p. 577 f.; and Thalheim, Hermes, 1888, p. 202 f.) The consequence to the defendant, if he failed in the action of ejectment, was, that (besides his liabilities to the plaintiff) he was, as a public offender, 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). While this remained unpaid (and we may presume it could not be paid without also satisfying the party), he became, as a state debtor, subject to the disabilities of ἀτιμία (Andoc. de Myst. § 73). (Att. Process, ed. Lipsius, p. 970.)

These proceedings by entry, ouster, etc., were a relic of ancient times, when, before writs and pleadings and other regular processes were invented, parties adopted a ruder method and took the law into their own hands. There was then an actual ouster, accompanied often with violence and breach of the peace, for which the person in the wrong was not only responsible to the party injured, but was also punishable as a public offender. Afterwards, in the course of civilisation, violent remedies became useless and were discontinued; yet the ceremony of ejecting was still kept up as a form of law, being deemed by lawyers a necessary foundation of the subsequent legal process. Thus at Rome, in the earlier times, one party used to summon the other by the words “ex jure te manum consertum voco,” to go with him to the land in dispute, and (in the presence of the praetor and others) turn him out by force. Afterwards this was changed into the symbolical act of breaking a clod of earth upon the land, by which the person who broke intimated that he claimed a right to deal with the land as he pleased. We may observe also, that the English action of ejectment in this respect resembles the Athenian, that although an entry by the plaintiff and an ouster of him by the defendant are supposed to have taken place, and are considered necessary to support the action, yet both entry and ouster are mere fictions of law. In Attic law it was primarily an action for ejectment out of real property, and only by a legal fiction transferred to other property; cf. Harpocration's general statement: καὶ ἐπεργασίας δέ τις εἰ ἔργοιτο (cf. Dem. c. Pantaen. p. 976.35), δίδωσιν ϝόμος δικάσεσθαι πρὸς τὸν εἴργοντα ἐξούλης. καὶ περὶ ἀνδραπόδου δὲ καὶ παντὸς οὗ φησί τις αὐτῷ μετεῖναι (Palmer on Plaut. Rud. 847, in Journ. of Phil. xvi. p. 38).

[C.R.K] [H.H]

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