.
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.)
[H.H]
1 It is, however, very probable that ἐνοικίου δίκη was originally intended to recover house-rent, and καρποῦ δίκη to recover the rent from land; the latter might also be instituted to recover profits, after the plaintiff had succeeded in an action for ownership (Suid., Phot. s. v.), and according to Hesychius (s. v.) was also directed against damage to crops (τῷ βλάψαντι καρπόν).
Dictionary of Greek and Roman Antiquities
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