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Colonial Cases

Lizzaraga v. Heimendinger, 1939

[civil procedure]

Lizzaraga v. Heimendinger

French Consular Court, Shanghai
D'Hooghe, 27 May 1939
Source: The North China Herald, 31 May 1939





COUNSEL: Dr. P. V. E. Terni for plaintiff and P. Premet for defendant.

Before M. E. D'Hooghe.

Shanghai, May 27.

    Is Article 16 of the French Civil Code, according to which a foreign plaintiff must deposit costs with a French Court prior to the case being heard, valid in the French Consular Court in Shanghai?   This is the question which lead to a verbal battle when the court sat yesterday morning to listen to an action which Mr. J. Lizzaraga, a Spanish subject, is bringing against Mr. Marcel Heimendinger for the payment of $2,000 allegedly due on the sale of a diamond ring.

   M. P. Premet for the defendant contended that the article was applicable in any French Court, be it in Paris, North Africa or China, whilst Dr. Piero C. E. Terni, for the plaintiff, contended that according to consular laws, a consular court is not competent to allocate expenses or damages for any foreigner be he Chinese, Spanish or anything else.  He went on to say that cautio judicatum solvi, had been abolished by the International Court of the Hague in 1907 and that therefore he prayed the court to give judgment in favour of his client.

   M. Premet, who claimed that his client had paid the outstanding account to the plaintiff, said that the very accusation was most damaging to his client and he reserved himself the right to sue the plaintiff for damages of not less than $5,000 plus $478 which he contended the plaintiff would have to deposit in the way of expenses, making a total of $5,478.

   Dr. Terni replied that he had deposited $150 with the court to cover expenses and that at the discretion of the judge, his client would be prepared top deposit another $590 but that if Mr. Heimendinger wanted to sue his client for damages, he would have to do this either in the Spanish or Chinese Court and that consequently he felt that the court would have no right to demand a deposit of $5,478.

   According to the evidence, the plaintiff handed a diamond ring to the defendant on March 30, with the request that it be sold for him at a minimum of $6,500.  On April 3, the attorney for the plaintiff continued, a post-dated cheque for $4,500, due on April 6, was handed to Mr. Lizzaraga while the remaining $2,000 was never paid.

   The defence, however, stated that the $2,000 was paid in cash but that no receipt had been asked for.

   The legal argument as to the competence of the court in fixing exposes for a foreigner not subject to the court's jurisdiction then ensued and the case was adjourned for one week.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School