It will be sufficient for present purposes to state a few general rules which prevail in a case of what is called a conflict of laws:—
(1.) Where a contract contemplates any particular country as the place of performance, the contract is governed by the law of that country, the lex loci solutionis; e.g., the liability of the acceptor and indorser of a bill of exchange, drawn and accepted in France, but accepted payable in England, must be decided according to the law of England.[[177]]
Robinson v. Bland[[178]] is an example of a bill accepted for gaming debts contracted abroad. Plaintiff sued on an acceptance given in France, payable in England, for money lost at play in France. The acceptor died before action brought. It appeared that the debt could only have been enforced in France by the marshals in a court of honour and not in the ordinary courts, and the only process ultimately available was personal attachment, which in the present case would have been impossible as the debtor was dead. So as the debt could not have been enforced in France, no action would lie here. According to English law the bill was void by the Statute of Anne.
(2.) Where no special place of performance is named, the lex loci contractus prevails, that is, the law of the place where the contract is made; or in the case of an executed contract, where the transaction is carried out; e.g., money advanced in France for the purposes of gaming is a transaction governed by French law.[[179]]
In Quarrier v. Coulston,[[180]] a bill was filed by the personal representative of a deceased person to have an I O U given to defendant by deceased delivered up to be cancelled, on the ground that it was given in respect of money won from deceased at cards, or lent to him for gaming purposes, while travelling on the Continent at Baden-Baden and other places in Germany. Judgment was given for the defendants, on the ground that it did not appear that the games were unlawful by the laws of the country where the money was won.
(3.) The formalities necessary for a contract must be decided by the law of the place where the contract is made.
(4.) Questions of procedure are decided according to the law of the forum where the case is tried.
In Leroux v. Brown,[[181]] it was decided the words in the 4th section of the Statute of Frauds, which provide that “no action shall be brought” upon certain contracts therein specified unless there be some memorandum of them in writing, refer to procedure only, and do not affect the substance of the contract; consequently, where an action was brought in England on a verbal contract entered into in France, where no writing was required, but which by the 4th section of the Statute of Frauds ought to have been in writing in England, it was held that as the Statute of Frauds referred to procedure only, the law of England must prevail where the action was brought, and that the rule above stated as to the formalities did not apply.
Qy. Effect words in 8 & 9 Vict., c. 109.
It may be, therefore, that the same words used in 8 & 9 Vict., c. 109, section 18, would have the same effect, viz., in preventing an action being brought in English Courts on a wager-contract entered into abroad in a country where they are legally enforceable.[[182]] This, of course, would not apply to money lent for gaming purposes,[[183]] which depends on 5 & 6 William IV. and not on 8 & 9 Vict., c. 109. (See ante p. 14.)