摘要:该令状的含义是指普通法上不动产诉讼的开始或根据。它主要不是主张管辖权,而是以国王命令的形式授予法官审理令状中所包含的事由的权力。这种令状一般采用文秘署〔Chancery〕命令函的形式签发给郡长,而且以君主的名义,加盖国玺。1873年以后,该令状不再使用。所有的
《元照英美法词典》中breve originale = original writ
对应的中文表达是:诉讼开始令状;起始令状
该令状的含义是指普通法上不动产诉讼的开始或根据。它主要不是主张管辖权,而是以国王命令的形式授予法官审理令状中所包含的事由的权力。这种令状一般采用文秘署〔Chancery〕命令函的形式签发给郡长,而且以君主的名义,加盖国玺。1873年以后,该令状不再使用。所有的诉讼都由传唤令〔writ of summons〕开始。
breve originale 英文释义为:
ORIGINAL WRIT, practice, English law. A mandatory letter issued in the king's name, sealed with his great seal, and directed to the sheriff of the county wherein the injury was committed or supposed to have been done, requiring him to command the wrongdoer or party accused, either to do justice to the complainant, or else to appear in court and answer the accusation against him. This writ is deemed necessary to give the courts of law jurisdiction.
In modern practice, however, it is often dispensed with, by recourse, as usual, to fiction, and a proceeding by bill is substituted. In this country, our courts derive their jurisdiction from the constitution and require no original writ to confer it. Improperly speaking, the first writ which is issued in a case, is sometimes called an original writ, but it is not so in the English sense of the word. Vide 3 Bl. Com. 273 Walk. Intr. to Amer. Law, 514.
来源:最新时尚经