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VOL. 2.



Its general


BEFORE proceeding to treat of the process to be issued on the filing of the libel, it is necessary to enter into a brief consideration of the admiralty stipulation(a); the name usually given to those securities which the parties are required to furnish or enter into, as a means of enabling the court to enforce justice.

Some general notion of their nature and importance may be conveyed by observing that, in addition to other important uses, they subserve all the purposes of bonds for the security of costs, of bail to the sheriff, and of special bail, in an ordinary action at common law, and of a bond for the return of property in the action of replevin.

The admiralty stipulation is of the nature of a recognizance. It is drawn up in writing, signed and acknowledged, but not sealed. It is the cautio of the civil law. The Roman word signifying a surety being fidejussori, and the correspondent adjective being fidejussorius, the security, when entered into by sureties, was denominated cautio fidejussoria. The sureties bound themselves separately from the

(a) Slipulatio, from stipula (as it has been supposed), the straw of old delivered as a token of consent. 2 Bro. Civ. and Ad. Law, 398, note.

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principal ; but the latter was required, at the same CHAP. time, to enter into a stipulation to the same effect as that entered into by the sureties, and containing an additional clause, in which he engaged to indemnify them against the responsibilities they incurred on his account. When the party made it to appear that he was unable to find sureties, he might, at the discretion of the court, be excused from doing so, and be admitted to the cautio juratoria, a personal security so denominated from the circumstance of its being entered into on oath. Another mode of security was, by deposit, pignori ; but the cautio fidejussoria was most generally used, and was, by way of eminence, also called' satisdatio, full or sufficient security

Until the reign of Justinian, no security in any Roman form appears to have been required of the actor or in personal plaintiff

. By the ancient Roman law, vexatious litigation was restrained by other means. The principal of these was the action of calumny, by · which the defendant, in a groundless and vexatious suit, was allowed to recover damages as an indemnity for his costs and expenses incurred in defending it. This action was abolished by Justinian ; and the oath of calumny, by which the actor was required to swear to his belief of the goodness of his cause, was substituted in its place. At a later period of his reign, he made a further provision against vexatious litigation, by requiring the actor, on filing the libel, to enter into a stipulation with sureties to bring the action to issue within two months ; to



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VOL prosecute the suit to final judgment and to pay the

defendant one-tenth part of the sum demanded by the actor, if it should be adjudged eum injuste litem movisse, that he had commenced the action without probable cause(a). The defendant, in a personal action, was required to give a caution(6) or stipulation, by which he became bound, and his sureties or fidejussores for him, that he should appear at the time named in the stipulation, submit himself to the jurisdiction of the court, and abide its sentence(c). This was called the stipulation in judicio sistendi, and was the only one required of the defendant in a personal action, when he appeared and defended in his own person. Its object was satisfied by his personal subjection to the process of the court. He was not required to find sureties to pay the debt;

(a) See the learned opinion of Judge Ware in the case of Lane v. Townsend et al., Ware's R., 286, 306, n, and the authorities there cited. This able opinion is the more valuable on account of its exposure of the errors committed by BROWNE (whose treatise on the civil and admiralty law is in general use in this country), in treating of the Roman stipulation. I shall have occasion to refer to it again, and shall not scruple to avail myself freely of its contents; and I beg leave to recommend it to the study of the learned reader, as the most intelligible and satisfactory summary of the Roman law upon this subject, within my knowledge. Indeed, the opinions throughout this volume are marked by extraordinary mental vigor, acuteness and learning.

(6) This is the word in common use as the English version of the Latin cautio. It is, however, a vicious translation, having nothing to recommend it but the similarty of sound. One of the ordinary significations of cautio is security; a sense in which the English word caution is never, except in this instance, used.

(c) And not also “ to pay a tenth part of the sum in dispute, if defeated,” as stated by Browns, and on his authority by Mr. Hall. (Vide 2 Bro. Civ. and Ad. Law, N. Y. ed., 410, 411 ; and Hall's Adm. Practice, 12.]


and though the stipulation in judicio sistere was forfeited, according to its terms, by his non-appearance, the forfeiture was never exacted when there was a reasonable excuse for his non-attendance. Thus, if he was detained by sickness, tempestuous weather, or flood— valetudine, tempestate, vel vi fluminis, the proctor was relieved against the penalty, and the fidejussores were discharged. But when a third person came in and took upon himself the defence of the suit, as any one was allowed to do even as a volunteer, whereby, according to the Roman law, he became substituted in place of the defendant as the debtor and dominus litis, he was obliged to enter into a stipulation, with sureties to pay whatever should be adjudged to be due, judicatum solvere, and by which he and his sureties for him also bound themselves that his acts should be ratified by his principal; whence it derived the name given to it, of the stipulatio de rato, or ratam rem habiturum dominum. This latter form of security was also required of the procurators, or proctors, In actions of each party, in actions in rem, called vindications. . These actions involved the right of property in the subject in controversy, and were brought to recover the thing in specie against the person in possession. It seems not unreasonable, therefore, that the defendant should have been obliged to give security to surrender the thing or pay its value (judicatum solvere), if the decision was against him; and a stipulation to this effect was, in fact, required of him, until the distinction in this respect, between personal actions and vindications, was abolished by


Practice of the English

VOL 2 Justinian, and the defendant was only required to

give the stipulation in judicio sustendi, to abide the judgment in personal actions.

Such, in brief, appear to have been the forms and legal effects of the securities exacted of litigants in the Roman forum. The practice of the Court of Admiralty, a civil law court, is derived from that of , the Roman tribunals; and these securities have been adopted, with some modifications, as one of its essential elements.

According to the practice of the English High bi Admiral Court of Admiralty, when it exercised a comprepersonum; hensive and undisputed jurisdiction of actions in

personam as well as in rem, the defendant in a personal action was required, on his arrest, as the condition of his liberation, to give bail, by entering, with sureties, into a caution or stipulation for his appearance, on the day and at the place named in the warrant of arrest, to answer the libellant in a cause civil and maritime. This stipulation is equivalent to the bail bond to the sheriff, for the appearance of the defendant in an action at law; and being only for his legal appearance, he was required, on the return day, to give a new fidejussory caution to abide the sentence of the court (in judicio sisti), to pay the costs, and to ratify the acts of his proctor(a). This being done, the first stipulation was satisfied; and the new one bound him to await and abide the decision of the cause, and to submit as well to all interlocutory orders as to the final decree and pro

(a) Clerke's Praxis, titles 4, 5, 12.

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