v. Forgery, 23 November 1899.

False statements may sometimes constitute fraudulent contrivances, within the meaning of Art. 312 of the P. C. (obtaining property by false pretences), when made by a person whose position is such that his words inspire exceptional confidence. The victim of the false pretences is not to be deprived of the protection of the law merely because his dealings with the accused reveal a want of ordinary intelligence. The law owes special protection to persons of a limited and feeble understanding, who require such protection in an exceptional degree. (App. 3 October 1899, p. 88).

١ The Decree of 28 May 1895 (C.Cr.Pr. Chap.III) having conferred on the Parquet the powers of an Examining Magistrate, an order of the Parquet directing the papers in a case to be filed without further proceedings (ordre de classement sans suite), forms, in the absence of fresh charges, a bar to the resumption of criminal proceedings, in all cases where, prior to such order, a warrant of apprehension or a warrant of arrest had been issued, or where there had been any process of examination by the Parquet. In all other cases the Parquet may in its discretion set aside the order to file, even though no fresh charges have been adduced. (Cass. 18 November 1899, p. 243).

٢ When the Parquet has, after a preliminary examination, ordered the papers in a case to be filed without further proceedings (ordre de classement sans suite), the prosecution cannot be resumed unless fresh charges are adduced. Since the Decree of 28 May 1895 (Chap. III C.Cr. Pr.), the effects of such an order are the same as those produced by an order of no probable cause (ordonnance de non-lieu) made by an Examining Magistrate: the cases specified in Art. 15 of the Decree (i.e. those where a warrant of arrest or of apprehension had been issued), are merely inserted as examples, and the principle therein contained is by analogy applicable to all cases where there has been any process of preliminary examination by the Parquet. This interpretation is rendered necessary, not only by the preliminary discussions concerning the Decree, but also by the anomalies which would result in practice from a contrary interpretation, particularly in the case of a joint prosecution of several offenders, against some of whom alone such warrants as above mentioned had been issued. From the fact that the order to file is to be regarded as equivalent to an order of no probable cause, it follows also that a civil claimant (partie civile) is thereby debarred from himself directly initiating further proceedings before a Correctional Court, and can take no fresh step unless and until the criminal prosecution is resumed. (App. 27 December 1899, p. 249).

٣ Under Chap. III, Art. 15, C. Cr. Pr., when the Parquet has, after a preliminary examination, made an order directing the papers in a case to be filed without further proceedings (ordre de classement sans suite), the prosecution may be resumed if fresh charges are adduced. This provision applies only where the Parquet is satisfied that such fresh charges really exist: the Parquet cannot set aside its former order on the mere ground that the existence of fresh charges has been alleged, if it has upon investigating them found that they are without substance. (Trib. App. Cairo, 11 January 1900, p. 259).

٤ The Parquet now has, under the Decree of 28 May 1895 (C. Cr. Pr. Chap. III), the powers of an Examining Magistrate. When therefore the Parquet has ordered the papers in a case to be filed without further proceedings (ordre de classement sans suite), this order forms a bar to the resumption of criminal proceedings (unless fresh charges are adduced), in all cases where it can be regarded as equivalent to an order of no probable cause (ordonnance de non-lieu) emanating from an Examining Magistrate. It follows that if there was no process of preliminary examination prior to the order to file, this order does not debar the Parquet from reopening the prosecution, even though no fresh charges exist.

٤ The Parquet now has, under the Decree of 28 May 1895 (C. Cr. Pr. Chap. III), the powers of an Examining Magistrate. When therefore the … [الفقرة تنقطع بنهاية صفحة الفهرس 7 وتتواصل في صفحة الفهرس 8 = صفحة PDF ‏413، خارج النطاق؛ لا استشهاد هنا]

٥ Since the Parquet is now empowered to conduct preliminary examinations, an order to file without further proceedings (ordre de classement sans suite), forms a bar to the reopening of the prosecution (unless fresh charges are adduced), whenever the action of the Parquet has been that of an Examining Magistrate, that is to say, whenever the Parquet has conducted any kind of preliminary examination. The interpretation of Arts. 14 and 15 of Chap. III, C. Cr. Pr. (Decree 28 May 1895), which would restrict this effect of the order to file to those cases alone where a warrant of apprehension or warrant of arrest had been previously issued, is inadmissible.

٦ Arts. 14 and 15 of Chap. III C.Cr.Pr. (Decree 28 May 1895) are evidently to be read together. It follows that an order to file without further proceedings (ordre de classement sans suite) does not form a bar to the reopening of the prosecution, even where no fresh charges are adduced, unless the order was made in one of the two cases mentioned in Art. 14, that is to say, unless either a warrant of apprehension or a warrant of arrest had been issued. The object of the legislator, in establishing this restriction, was presumably to afford greater protection to persons who have already been the object of measures of exceptional severity, than to those whose liberty has not yet been interfered with. The argument, that the legislator should have protected all accused persons equally, is irrelevant, since the duty of the Courts is limited to applying the law in the state in which it exists.

١ In deciding upon the existence of the crime or misdemeanour of forgery, it is immaterial whether the fraudulent alteration affects the immediate subject of the document in question or was made for some ulterior purpose.

٢ Since by Art. 261 of the C. C. C. Pr. seals placed upon official deeds may be used as documents for comparison, the sealing of an official deed with a forged seal constitutes a forgery, even where the signature of such official deed is admittedly genuine.

٣ The person who fabricates a document in order to establish a disputed claim, is guilty of forgery. For instance, the fabrication of a letter containing the assent of a person to a judgment against him purporting to be given by default, constitutes a forgery, when a possible prejudice may result therefrom. The fact that the accused has grounds for contending that the judgment was in reality given after hearing both parties, and that the time for appealing from such a judgment has expired, does not divest the act of its criminal character. There is a possibility of prejudice, so long as the person against whom judgment was given can (upon the ground that the said judgment purports to be by default) contend, either that, not having been executed within six months, it is no longer operative, or that service of notice thereof was not validly effected.

٤ The crime of forgery of a public document is committed by the person who, without tampering with any valid existing official deed, fabricates and attributes to a competent official a document purporting to be an official deed, no less than by the person who, after the completion of such a valid deed before a competent official, adds or inserts words or phrases in such a way as to alter its meaning. The transcription on the register of the Mehkemeh Shar'ieh (Sigill) of a fabricated deed also constitutes the crime of forgery of a public document. Such forgery falls within the category of forgeries by insertion of false names, as it induces the belief that the persons named in the fabricated deed (the validity of which has been asserted by transcription) did in fact present themselves as therein declared. In deciding whether the possibility of prejudice, which is a necessary element in the crime of forgery, exists, the Court has to consider what would have been the scope and effect of the forged document if it had been genuine.

٥ The words "official or public officer," used in Art. 191 P. C., include all persons in the public service, and are not limited to those who are permanently employed and entitled to pension on retirement. Consequently the forgery committed by a person who is employed by the day in a public administration, is punishable under the said article.

٦ v. Complex offence, 11 October 1899, 8 February, 10 March and 21 April 1900; Improbation (Inscription en faux) 11 May 1899.

v. Revision of Judgment, 4 May 1899.

v. False pretences (Obtaining property by) 3 October 1899.

١ A formal demand (mise en demeure) is not necessary in order to establish that the offence of fraudulent conversion has been committed. The question of fraudulent intention is one of fact, the decision of which rests with the judge of fact.

٢ The offence of fraudulent conversion is committed by the person who, having received an object for the purpose of using it in a specified manner for the benefit of the owner, or of any other person named by the latter, seeks to deal with the same as though he were himself the owner. For instance, the offence exists when an agent, instructed to pledge an object, exposes it for sale with the purpose of misappropriating the purchase money.

٣ v. Complex offence, 21 April 1900; Jurisdiction (of Criminal Courts), 11 January 1900.

v. Appealable amount, 11 April 1899.

v. Marital power, Cir. 28 June 1899.

An obligation, for which the consideration is an undertaking by the other contracting party not to bid at a sale by public auction of certain property, is to be considered as founded on an illegal consideration and therefore as void ab initio (C. C. Art. 94), even though the transaction does not constitute a criminal offence within the terms of Art. 318 P. C., which punishes certain forms of interference with the freedom of bidding at public auctions.

١ Though a Court of its own motion may refuse to admit or may declare null and void any document which shall in its opinion be proved to be a forgery, it does not therefore follow that the Tribunal may authorise an enquiry relating to such document, unless the plaintiff has first brought an allegation of forgery in accordance with the rules established by the C. C. C. Pr.

٢ v. Res Judicata, 12 December 1899.

v. Cassation (Substantial ground of invalidity) 10 June and 30 December 1899.

v. Co-ownership, 25 November 1899; Sale (of undivided share) 5 January 1899.

v. Prescription (Extinctive, Interruption of) 15 Novembre 1899; Prescription, (Interruption of) 28 February 1900.

v. Expropriation (of immovables), 1 August 1899; Notice of Appeal, 1 June 1899.

v. Cassation (Substantial ground of invalidity) 30 December 1899, 20 January and 10 March 1900.

v. Jurisdiction, 11 January 1900.

v. Cassation (Substantial ground of invalidity) 10 June and 30 December 1899.

v. Revision of Judgment, 20 December 1899.

v. Cassation (Judgments susceptible of), 13 January 1900.

v. Judgment charge, Cir. 17 December 1899.

v. Default (Judgment by, etc.) 18 April 1900; Opposition (in criminal proceedings) Cir. 11 February 1900.

The sole object of judgments recording acknowledgments of handwriting, seals or signatures, is to prevent the debtor, or persons claiming through him, from subsequently disputing the genuineness of his writing or seal. As such judgments contain no order to pay a debt either liquidated or susceptible of liquidation, they do not entitle the creditor to a judgment charge on the property of his debtor.

١ In actions brought against a person under interdiction who is a native, but whose curator is a foreigner, the native tribunals have jurisdiction, since the nationality of the person under interdiction is alone to be considered.

٢ By the terms of the Decree of 8 March 1881, water-raising machines, whether movable or stationary, can only be erected in virtue of an authorisation obtained from the Ministry of Public Works, whose decision on the advisability of granting or refusing such authorisation is final. In refusing an application for such an authorisation, the Ministry is acting within the rights conferred by the Decree, and, there being no violation of the law, no action will lie against the Government on the ground of any prejudice which may result to private interests from such refusal. The Decree of 3 February 1892, relating to the taxation of lands sold by the Government, imposes no obligation on the Government to make canals, or to provide in any way whatsoever for the irrigation of the lands sold, but on the contrary obliges the owners to the payment of the taxes without condition or reserve, even though the land in question remains uncultivated. In taking measures for the forcible collection of such taxes, the Government exercises a right unconditionally conferred by the Decree; accordingly no action will lie against it on this ground, even though it is alleged that the cultivation of the land is impossible owing to the action of the Government itself in refusing permission to erect a machine necessary for its irrigation, if such refusal was made in virtue of powers conferred by the law.

١ When the true value of immovable property forming the subject of an action is stated in the deed, and it has not been proved that such statement was made with intent to defraud the treasury or to prejudice third parties, the question of jurisdiction is to be determined in accordance with such value. Consequently, the method of valuation indicated in the J. T. (multiplication by 20 of the amount of the tax due to the State) is only applicable where the true amount in dispute does not thus appear from the deed.