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vidual citizens. It will be observed that cases frequently arise, which, with reference to the wrong complained of, may with equal propriety be brought before a court in the form of the ypafyri ast mentioned, or in that of an ordinary sikt/, and under these circumstances the laws of Athens gave the prosecutor an ample choice of methods to vindicate his rights by private or public proceedings (Dem. c, Andoc. p. 601), much in the same way as a plaintiff in modern times may, for the same offence, prefer an indictment for assault, or bring his civil action for trespass on the person. It will be necessary to mention some of the principal distinctions in the treatment of causes of the two great classes above mentioned, before proceeding to discuss the forms and treatment of the private lawsuit.
In a siktj, only the person whose rights were alleged to be affected, or the legal protector (icvpios) of such person, if a minor or otherwise incapable of appearing suo jure, was permitted to institute an action as plaintiff ; in public causes, with the exception of some few in which the person injured or his family were peculiarly bound and interested to act, any free citizen, and sometimes, when the state was directly attacked, almost any alien, was empowered to do so. In all private causes, except those of e£ouA?]s, J3ial<av9 and e£cups<r€«s, the penalty or other subject of contention was exclusively recovered by the plaintiff, while in most others the state alone, or jointly with the prosecutor, profited by the pecuniary punishment of the offender. The court fees, called prytaneia, were paid in private but not in public causes, and a public prosecutor that compromised the action with the defendant was in most cases punished by a fine of a thousand drachmae and a modified dis-franchisement, while there was no legal impediment at any period of a private lawsuit to the reconciliation of the litigant parties. (Meier, Alt. Process, p. 163.)
The proceedings in the Si/n? were commenced by a summons to the defendant (Trp6crK\fi(TLs) to appear on a certain day before the proper magistrate (elcraywyevs), and there answer the charges preferred against him. (Arist. Nub. 1221, Av. 1046.) This summons was often served by the plaintiff in person, accompanied by one or two witnesses [cleteres], whose names were endorsed upon the declaration (A??£.is or ejK\7]^.a). If there were an insufficient service of the summons, the lawsuit was styled aTrp^cr/cA^Tos, and dismissed by the magistrate. (Hesych.) From the circumstance of the same officer that conducted the anacrisis being also necessarily present at the trial, and as these were besides dies nefasti (a7ro<£pa8es) and festivals, during which none, or only some special causes could be commenced, the power of the plaintiff in selecting his time was, of course, in some degree limited ; and of several causes, we know that the time for their institution was particularised by law. (Aristoph. Nub. 1190.) There were also occasions upon which a personal arrest of the party proceeded against took the place of, or at all events was simultaneous with, the service of the summons ; as for instance, when the plaintiff doubted whether such party would not leave the country to avoid answering the action ; and accordingly we find that in such cases (Dem. c. Zenoth. p. 890, c. Aristog. p. 778) an Athenian plaintiff might compel a foreigner to
accompany him to the polemarch's office, a'nd there produce bail for his appearance, or failing to do so, submit to remain in custody till the trial. The word Kareyyvav is peculiarly used of this proceeding. Between the service of the summons and ap* pearance of the parties before the magistrate, it is very probable that the law prescribed the intervention of a period of five days. (Meier, Ait. Process, p. 580.) If both parties appeared, the proceedings commenced by the plaintiff putting in his declaration, and at the same time depositing his share of the court fees (irpuTayeja), the non-pay^-ment of which was a fatal objection to the further progress of a cause. (Matth, DeJud. Atli. p. 261.) These were very trifling in amount. If the sub" ject of litigation was rated at less than ] 00 drachmae, nothing was paid ; if at more than 100 drachmae and less than 1000 drachmae, 3 drachmae was a sufficient deposit, and so on in proportion. If the defendant neglected or refused to make his payment, it is natural to conclude that he underwent the penalties consequent upon non-appearance ; in all cases the successful party was reimbursed his prytaneia by the other. (Meier, Ait. Process, p. 613.) The irapa/caTagoA'ii was another deposit in some cases, but paid by the plaintiff only. This was not in the nature nor of the usual amount of the court fees, but a kind of penalty, as it was forfeited by the suitor in case he failed in establishing his cause. In a suit against the treasury, it was fixed at a fifth ; in that of a claim to the property of a deceased person by an alleged heir or devisee, at a tenth of the value, sought to be recovered. (Matth. De Jud. Atli. p. 260.) If the action was not intended to be brought before an heliastic court, but merely submitted to the arbitration of a diaetetes [DiAE-tetes], a course which was competent, to the plaintiff to adopt in all private actions (Hudt-walcker, De Diaetet. p. 35), the drachma paid in the place of the deposit above mentioned bore the name of Trapdffraffis. The deposits being made, it became the duty of the magistrate, if no manifest objection appeared on the face of the declaration, to cause it to be written out on a tablet, and exposed for the inspection of the public on the wall or other place that served as the cause list of his court. (Meier, Ait. Process, p. 605.)
The magistrate then appointed a day for the further proceedings of the anacrisis [anacrisis], which Avas done by drawing lots for the priority in case there was a plurality of causes instituted at the same time j and to this proceeding the phrase Aa7%ai/6»' StKyv, which generally denotes to bring an action, is to be primarily attributed. If the plaintiff failed to appear at the anacrisis, the suit^ of course, fell to the ground; if the defendant made default, judgment passed against him. (Meier, Att. Process., p. 623.) Both parties, however, received an official summons before theii non-appearance was made the ground of either re-salt. An affidavit might at this, as well as at other periods of the action, be made in behalf of a person unable to attend upon the given day, and this would, if allowed, have the effect of postponing further proceedings (u7ray.to<r(a); it might, however, be combated by a counter affidavit to the effect, that the alleged reason was unfounded or otherwise insufficient (avOvirwiJt,ocria) ; and a question would arise upon this point, the decision of which, when adverse to the defendant woulcl
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