١٢٥ (لا) — عنوان حرفى فى الفهرس

١٣٠ ( طبعت بالمطبعة الاميرية ببولاق مصر سنة ١٩٠٧ ميلاديه )

—Judgment of Mehkemeh—Alimony—Cessation of payment: v. Execution, 26.

١ 1. —Property of convicted person—Powers of administrator.—The administrator of the property of a person sentenced to a criminal penalty, appointed under art. 25 (4°) P.C., is not empowered to dispose of such person's property. A sale by him of land belonging to the person sentenced is, therefore, null and void. (Sum. Trib. Mallawy, 24 Oct. 1906; No. 21, p. 11.)

—Defence in former action: v. Evidence in civil cases, 21.

٢ 2. —Withdrawal of prosecution.—Since, by art. 236 P.C., the husband whose wife has been convicted for adultery is empowered to terminate the operation of the sentence, it must be inferred that, before judgment, he can demand the withdrawal of the prosecution. (Sum. Trib. Mellawy, 23 March 1907; No. 59, p. 37.)

—Alteration of charge—Authority to consent to immediate trial: v. Procedure, Criminal, 103.

—Assignment of bill to evade Bar Regulation: v. Assignment, Colourable, 13.

—Prescriptive Right—Limits; v. Light and Air, 80.

—Recidive—Alias to be mentioned in judgment: v. Judgment, 48.

—Alien plaintiff—Jurisdiction of Native Tribunals by agreement; v. Jurisdiction of Native Tribunals, Restrictions on, 69.

—Change of nationality during trial; v. Jurisdiction of Native Tribunals, Restrictions on, 66.

—Direct summons by alien—Public action; v. Jurisdiction of Native Tribunals, Restrictions on, 65.

—Guarantor—Jurisdiction; v. Jurisdiction of Native Tribunals, Restrictions on, 67.

—Urgent measure—Alien interest—Jurisdiction; v. Jurisdiction of Native Tribunals, Restrictions on, 68.

—Judgment of Mehkemeh—Execution: v. Execution, 26.

—Art. 61, C.C.—Native Tribunals competent: v. Jurisdiction of Native Tribunals, Restrictions on, 70.

—Agreement to allow; v. Jurisdiction of Native Tribunals inter se, 60.

—Contents of Judgment; v. Judgment, 41.

٣ 3. —Amount of claim, how determined.—For the purpose of ascertaining whether or not a judgment is appealable, the amount claimed should be fixed by reference to the ultimate, and not to the original claim. (Trib. app. Alexandria, 2 Oct. 1905; No. 40, p. 26.)

٤ 4. —Execution on immovables—Revindication suit—Time limit.—The time limited for appeal is, in a revindication suit brought in the course of expropriation proceedings, ten days. An appeal in such a suit, lodged after the lapse of ten days, will, consequently, be disallowed, although, owing to the fact that the revindicant has not made any deposit, the proceedings for sale have not been stayed. (App. 30 May 1906; No. 39, p. 26.)

٥ 5. —Extinction of right of—Stay of proceedings—Lapse of 15 years—Possession.—It appeared that the de cujus of the appellants had lodged an appeal before the “Meglis-el-Ahkam” from a judgment of the “Meglis of Appeal in Lower Egypt” dated 7 Ramadan 1300 A.H. whereby, amongst other things, the said de cujus had been ordered to deliver possession of certain land to the de cujus of the respondents. The “Meglis-el-Ahkam” having been abolished, the case came on for trial before the Native Court of Appeal, but, on the 28 January 1890, the action was stayed on account of the death of the latter de cujus. The appellants remained in possession of the land. Proceedings were resumed by the present appellants on 7 July 1906. It was submitted, in behalf of the respondents, that the right of appeal was barred by the lapse of 15 years from the stay of proceedings. Held, that since the appeal was, in fact, first brought within the legal limit of time, the case is distinguishable from an appeal brought after its lapse. The appeal is here of the nature of a defence, and the rule applies, “Quæ temporalia sunt ad agendum perpetua sunt ad excipiendum.” The provision that rights shall be lost by prescription is, moreover, based on a presumption of laches, but since, in the present case, the appellants have been in possession of the land, and since, by the lodging of the appeal, their possession was sufficiently protected, they cannot be said to have been negligent. It is likewise noticeable that art. 208 C.C. provides that obligations alone shall be barred by the lapse of 15 years. But the right to prosecute an appeal cannot be considered an obligation. The appeal was therefore not barred. (App. 1 Jan. 1907; No. 55, p. 36.)

٦ 6. —Judgment by default—Effect of opposition on appeal.—A judgment on appeal from a judgment given by default will be quashed for substantial nullity if it was delivered after opposition had been made. (Cass. 13 Aug. 1906; No. 72, p. 57.)

٧ 7. —Law governing, how determined.—The right of appeal is not governed by the law in force when proceedings were instituted in first instance, but by that in force when the judgment to be appealed from is delivered. Hence no appeal lies from the judgment of a Summary Tribunal in an action wherein the amount in dispute does not exceed P.T. 2000, if such judgment was given after the coming into force of Law No. 11, 1904, although the action was previously begun. (Trib. app. Alexandria, 27 Oct. 1904; No. 15, p. 10.)

٨ 8. —Notice of—Death of party before service.—A notice of appeal is void if the appellant dies before it has been served. Should his heirs, without serving a new notice, seek to prosecute the appeal, the respondent may apply to have it dismissed with costs. (Trib. app. Tanta, 31 Oct. 1906; No. 5, p. 2.)

٩ 9. —Suspensive effect.—Where a person is, by a judgment, ordered to render an account within a limited time, or, in default, to pay a penalty for every day's delay, and the judgment is affirmed on appeal, the time limited is to be calculated as from the date of service of the judgment on appeal. (App. 22 Jan. 1907; No. 77, p. 58.)

١٠ 10. —Waiver of—Omission to plead agreement of opposition.—In a contract of sale of cotton the seller agreed that, in the event of his failing to deliver and being sued for damages, the first judgment given should be final. He failed to deliver and suffered judgment by default. On his making opposition, the buyer did not plead this agreement but the judgment was confirmed. Held, on appeal, that the omission, at the trial on opposition, to raise the objection that it had been agreed that the first judgment should be final, did not amount to a waiver of the agreement, and that, consequently, no appeal lay. (Trib. app. Beni-Souef, 2 April 1907; No. 64, p. 47.)

١١ 11. —Waiver of—Presumed condition.—Where one of the parties to a contract has therein made election of domicile exclusively in the interest of the other, such other party is at liberty to waive the election, but he is by so doing deemed to waive the right of benefiting by a clause whereby the first party had deprived himself of the right of appeal. The waiver of the right of appeal is presumed to have been intended to apply to such appeal only as might have lain from the judgment of the Court within the jurisdiction of which election of domicile was made. (Sum. Trib. Mallawy, 8 April 1906; No. 58, p. 37.)

—Aggravating circumstance in theft—Definition: v. Theft, 125.

١٢ 12. —Carrying without licence—Gaffir off duty.—A gaffir who, whilst off duty outside his district, carries, without any licence, a fire-arm which has not been supplied to him by the authorities, is punishable in accordance with the provisions of Art. 11, Law No. 16, 1904, (Keeping and bearing fire arms). (Markaz Trib. of Itai-El-Baroud, 12 Nov. 1906; No. 23, p. 12.)

١٣ 13. —Bill of Exchange—Bar regulations.—Where it is established that the assignment of a bill of exchange has been made for the purpose of enabling the assignee, who is not an advocate, to plead in an action brought on the bill, the Court will dismiss the action. (Sum. Trib. Dessouk, 15 April 1907; No. 105, p. 75.)

—Wakf—Assignment of power by Nazir—Validity; v. Wakf, 127.

—Of marriage; v. Marriage, 82.

—Obstruction of windows: v. Light and Air, 80.

١٤ 14. —Judgment against the weight of evidence.—Although the facts of the case set out in a judgment differ from those in the record of the sitting, the judgment will not, therefore, be quashed for substantial nullity. (Cass. 9 March 1907; No. 85, p. 65.)

١٥ 15. —Single penalty on two counts—Conviction quashed on one count only—New trial on both.—When a conviction for forging and uttering is quashed as to one count only, the Court of Cassation will send both counts back to be retried, since it cannot determine what proportion of the single penalty inflicted is attributable to the offence the conviction for which it has upheld. (Cass. 9 March 1907; No. 109, p. 82.)

—Alteration—Authority of advocate to consent to immediate trial: v. Procedure, Criminal, 103.

—Direct summons by alien—Public action—Jurisdiction: v. Jurisdiction of Native Tribunals, Restrictions on, 65.

—Infant accused; v. Infant, 39.

—Omission to summon civil claimant—Defect covered by appearance: v. Procedure, Criminal, 104.