英文法律词典 S-81

STIPULATION¹, contracts. In the Roman law, the contract of stipulation was made in the following manner, namely; the person to whom the promise was to be made, proposed a question to him from whom it was to proceed, fully² expressing tho nature and extent of the engagement and, the question so proposed being answered in the affirmative, the obligation was complete.

2. It was essentially³ necessary that both parties should speak, (so that a dumb man could not enter into a stipulation) that the person making the promise should answer conformably to the specific question, proposed, without any material interval⁴ of time, and with the intention of contracting an obligation.

3. From the general use of this mode of contracting, the term stipulation has been introduced into common parlance⁵, and, in modern language, frequently refer's to any thing which forms a material article of an agreement; though it is applied⁶ more correctly and more conformably to its original meaning to denote the insisting upon and requiring any particular engagement. 2 Evans' Poth. on Oblig. 19.

4. In this contract the Roman law dispensed⁷ with an actual consideration. See, generally, Pothier, Oblig. P. 1, c. 1, s. 1, art. 5.

5. In the admiralty courts, the first process is freq uently to arrest the defendant⁸, and then they take the recognizances or stipulation of certain fide jussors in the nature of bail⁹. 3 Bl. Comm. 108; vide Dunlap's Adm. Practice, Index, h. t.

6. These stipulations are of three sorts, namely: l. Judicatum solvi, by which the party is absolutely bound to pay such sum as may be adjudged by the court. 2 De judico sisti, by which he is bound to appear from time to time, during the pendency of the suit, and to abide¹⁰ the sentence. 3. De ratio, or De rato, by which he engages to ratify¹¹ the acts of his proctor: this stipulation is not usual in the admiralty courts of the United States.

7. The securities are taken in the following manner, namely: 1. Cautio fide jussoria, by sureties. 2. Pignoratitia; by deposit. 3. Juratoria, by oath: this security is given when the party is too poor to find sureties, at the discretion¹² of the court. 4. Aude promissoria, by bare promise: this security is unknown in the admiralty courts of the United States. Hall's Adm. Pr. 12; Dunl. Adm. Pr. 150, 151. See 17 Am. Jur. 51.