which Harpocration (s. v.)
explains ἐξωθεῖν καὶ ἐκβάλλειν
Dem. c. Pantaen.
p. 976.35; Lys. c. Theomn.
). Meier (Att.
ed. Lipsius, p. 665 f.) distinguishes two kinds of
one (ἣ 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
Caecilius in Harpocr. s. v.), later in point of
time, corresponding to the Roman actio
A δίκη ἐξούλης
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
given an award, Dem. c. Mid.
p. 540.81: cf. Hudtwalcker,
p. 152), and was τιμητὸς
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.
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,
§ 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 ὁ Λ. οὑτοσὶ φάσκων
Dem. c. Leoch.
This proceeding took place quietly (yet see Dem. c. Onet.
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.
972.19; Dittenberger, ibid.
No. 76 = C. I.
No. 2691 d, καὶ ἐπώλησαν τὰ κτήματα
αὐτῶν δημοσίηι, ἐκτῆσθαι κυρίως τοῖς πριαμένοις
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.
p. 717.54). The title to property might also have been
established by the decision of a court or the award of an arbitrator
οἱ δίκην νικήσαντες ὥστε λαβεῖν χωρίον ἢ
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.
§ 22, Dicaeogenes had covenanted to
give the plaintiffs two-thirds of the estate (ἀναμφισβήτητα,
§ 18 = καθαρὰ καὶ ἀνέπαφα,
), 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
brought. (Cf. on this case A. Philippi, Jahrb. f. class.
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
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.
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
him by the defendant are supposed to have taken place, and are considered
necessary to support the action, yet both entry
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
(cf. Dem. c. Pantaen.
δίδωσιν ὁ ϝόμος δικάσεσθαι πρὸς τὸν
εἴργοντα ἐξούλης. καὶ περὶ ἀνδραπόδου δὲ καὶ παντὸς οὗ
φησί τις αὐτῷ μετεῖναι
(Palmer on Plaut.
847, in Journ. of Phil.
xvi. p. 38).